Tuesday, March 27, 2007

Defense Attorney Ethics Questions Raised

This story unfortunately doesn't surprise me at all.

MADISON, Wis. (AP) -- When a prominent lawyer was defending a businessman on charges of sexually assaulting a boy and possessing child pornography, he used a ruse to obtain the boy's computer to aid his case.

Now, state regulators want the state Supreme Court to scold the lawyer for the hoax. Stephen Hurley hired a private investigator to trick the boy into swapping his computer for a new laptop. The case illustrates what the American Bar Association says has been a major debate in legal circles in recent years: Can lawyers ethically participate in covert activities? [...]

Hurley's lawyer, Claude Covelli, said his client did nothing wrong in supervising an undercover investigation to collect evidence, similar to sting operations conducted by law enforcement officers investigating civil rights complaints. But a complaint filed by a state disciplinary board says Hurley broke rules that prohibit lawyers from engaging in "dishonesty, fraud, deceit or misrepresentation" by approving the hoax.
I believe these types of actions are wrong and should be grounds for reprimand or even disbarment in extreme cases. Just as prosecution evidence gets thrown out if it is not obtained properly, defense evidence obtained unethically should get thrown out.

A defense analyst discovered hundreds of pornographic images on the computer, including 28 images involving children. Hurley claimed the images showed the boy accessed child pornography and learned about sex on his own and not through Sussman.

The evidence was never introduced at trial. A judge ruled that pornography viewed by the boy in 2004 was not relevant to assaults that happened at least two years earlier. A jury found Sussman guilty of assault and possessing child pornography. He is in prison, though he maintains his innocence and is appealing.

Hurley, who did not return phone or e-mail messages, argued in court documents in 2005 that the hoax was the only way he could obtain the computer and perhaps evidence to exonerate his client.

This unethically obtained evidence does nothing but attack the character of the victim in this case which makes it nothing more than victim blaming. But that was likely the who point. Reasonable doubt through character assassination.

With these ethics, how is a jury to reasonably believe that evidence obtained through unethical actions hasn't been corrupted in some way?

Those people who constantly complain that prosecutors aren't behaving ethically toward sex crime defendants must also demand that defense attorneys live up to high ethical standards if they want the rest of us to believe that they are true advocates for a high ethical standards and not rape apologists or rapists looking out for their own.

Violating ethics rules to get a job done is no excuse. Not for prosecutors, investigators or defense attorneys.

Update (2/15/09): The results of the ethics hearing are in.

The office said he should be reprimanded, but Hurley contended that the ruse was the only way he could obtain exculpatory evidence and that police can lie to get evidence.

[Judith] Sperling-Newton, the referee, found Hurley didn’t violate the rules because the investigator, not Hurley, lied to the boy and Hurley played no active role in the trick. Hurley had no other way to get the laptop without the boy erasing the pornography on it, she said.

The ethics rules controlling the case are murky and the lawyers regulation office’s enforcement of them inconsistent, she added.

If this trick is ethical then it must be ethical across the board even when it is used to get evidence pointing to guilt not innocence.

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posted by Marcella Chester @ 8:52 AM   1 comments links to this post


At February 15, 2009 11:58 AM, Anonymous Anonymous said...

On Thursday, Feb. 12, 2009, the Wisconsin Supreme Court found that Mr. Hurley did not violate any ethics rules.


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