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Did a Defense Attorney Go Too Far?

When does conduct in the name of zealous representation cross the line? That's a question that the Wisconsin Supreme Court may soon confront in the matter of Stephen Hurley, who is the subject of a bar grievance proceeding for use of deception to gather evidence in the course of defending a client. CNN has this report (3/22/07).

According to the report, Hurley's client had been charged with assault and child pornography but insisted that his accuser, a teenage boy, was lying.  Hurley sought to obtain the computer to aid his client's defense, so he hired a private investigator.  Posing as a computer company, the investigator sent the boy a letter, offering him a new computer in exchange for his computer.  The investigator traveled to the boy's home to pick up the computer, which housed "hundreds of pornographic images."  Hurley argued that the images on the boy's computer showed that he'd learned about child pornography on his own rather than through the defendant.

The judge never admitted the evidence, finding that pornography viewed in 2004 was not relevant to the boy's allegations regarding the assault that had occurred two years earlier.  But that wasn't the end of the matter.  The state disciplinary board filed charges against Hurley seeking a private reprimand and alleging that he engaged in "dishonesty, fraud, deceit or misrepresentation by approving the hoax." But Hurley's attorneys contend that the deception was the only means available to Hurley to obtain this information and that Hurley's actions were no different from tactics employed by prosecutors in their investigations. 

In this particular case, I think Hurley crossed the line.  Before engaging in deceptive tactics, Hurley should have at least attempted to subpoena the computer.  (Some experts quoted in the article say that routine discovery would have been impractical, but I'm not sure why.)  Moreover, the complainant was only a teenager who was particularly susceptible to the investigator's deception.

I realize that prosecutors also employ deceptive tactics and overreaching, and as recent events show, they are also coming under fire when they go too far.  But that's not excuse.  Moreover, unless defense attorneys stay above the fray, they weaken their credibility in challenging unethical conduct by prosecutors.

Posted by Carolyn Elefant on March 23, 2007 at 04:58 PM | Permalink | Comments (4)


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