There are two remarkable no, astonishing things about the "Referee's Report and Recommendation" issued Feb. 5 in the state Office of Lawyer Regulation's disciplinary proceeding against Madison attorney Stephen Hurley.
The first is that the report was not written by Hurley or some lawyer representing him. If it had been, it's difficult to see how it would have differed in the slightest particular, given how thoroughly the neutral referee Madison attorney Judith Sperling-Newton exonerates Hurley of any wrongdoing.
"Mr. Hurley faced an extremely difficult calculus: risk violating a vague ethical rule or risk breaching his duty zealously to defend his client's constitutionally protected right to effective assistance of counsel," the report states. "The decision Mr. Hurley made was not an unfit one. It was a necessary one [that] does not bring into question his fitness for the practice of law. It affirms his fitness as a criminal defense attorney. He acted reasonably and with adequate safeguards, He acted as the Constitution compelled him to act."
At issue was Hurley's approval of the use of subterfuge to obtain the home computer of a juvenile who was the chief accuser of Hurley's client, Madison businessman Gordon Sussman. In August 2004, an investigator in Hurley's employ lied to the lad and his mother to obtain access to the boy's computer, which was subsequently found to contain images of child pornography of the sort Sussman was eventually convicted of possessing.
Sperling-Newton's analysis weighs the various choices before Hurley and concludes that he had an obligation to employ a limited degree of deception to obtain this exculpatory evidence (which the judge, it turned out, did not allow the jury that convicted Sussman of child molestation and possession of child porn to hear).
The Office of Lawyer Regulation, an arm of the Wisconsin Supreme Court, viewed Hurley's conduct, as Sperling-Newton's phrased it, "as a shameful scheme to defraud a vulnerable child and to circumvent law enforcement," for which it recommended that Hurley receive a public reprimand.
"The referee disagrees and finds that an extremely oversimplified description," the report states. "There is more nuance to this case... Mr. Hurley held a man's life in his hands. His client faced life in prison. He had a reasonable, factually supported and good-faith belief that [the young man's] home computer contained exculpatory evidence...." And so on.
Indeed, the report suggests that for Hurley to have not acted as he did "would have constituted ineffective assistance of counsel, violating Mr. Sussman's rights under the Sixth Amendment to the Constitution and creating grounds for Mr. Sussman to appeal."
The second astonishing thing about Sperling-Newton's report is the degree of skepticism it demonstrates toward law enforcement in general and the individuals involved in the Sussman case in particular. Sperling-Newton argues that Hurley's actions were necessary because he had good reason to believe the police might actively collude with Sussman's accuser in an effort to destroy exculpatory evidence.
The report details the various grounds Hurley had for suspecting that the lead investigator, Madison Police Detective Bruce Frey, was "heavily biased" toward Sussman's accuser. These included Frey's reference to the lad as "my victim" and the detective's apparent failure to investigate allegations that the boy had made false accusations in the past.
Sperling-Newton also faults Frey for taking Sussman's accuser at his word that Sussman viewed pornographic movies with him at a motel. In fact, it later emerged, the motel at which the pair stayed did not offer such movies. Frey apparently never bothered to check.
The report even suggests that Frey worked with Sussman's accuser to get him to change his story when evidence came to light that contradicted his account. It notes that the boy, who purportedly had seen Sussman's penis on countless occasions, initially reported that Sussman was uncircumcised. After Hurley reported to the Dane County District Attorney's Office that Sussman was in fact circumcised, Frey spoke with the boy about the inconsistency. Afterward, the accuser changed his story to say that Sussman was circumcised.
"Mr. Hurley therefore did not trust Detective Frey to investigate [the boy's] home computer in a way that would prevent [him] from destroying evidence," the report says. "Mr. Hurley believed that as soon as Detective Frey knew of Mr. Hurley's suspicions, so would [the accuser]. Without passing judgment on Detective Frey, this referee finds that Mr. Hurley's distrust and skepticism was reasonable under the circumstances."
Sperling-Newton's report may very well conclude the disciplinary proceeding against Hurley (the Office of Lawyer Regulation has 20 days to appeal). But in affirming that Hurley committed no wrongdoing, it raises a disquieting possibility: Perhaps wrongdoing was committed, by the police, thus sending an innocent man to prison.