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Friday, March 6, 2015 |  Madison, WI: 3.0° F  Fair
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Hurley for the Defense
A difficult early life - and lots of hard work - helped prepare him for a brilliant career
on
With his mother, Etiennette Pillet: ‘He was always very good
at arguing.’
With his mother, Etiennette Pillet: ‘He was always very good at arguing.’

Hal Harlowe had no idea it was coming. In June 2004, the Madison criminal defense attorney was in a Waukesha County courtroom, representing a witness in a John Doe proceeding. Alongside him was co-counsel Stephen Hurley. The judge made the witness swear not to reveal "any evidence received" during the hearing "so help me God." He then asked the two lawyers to do the same.

"Your honor, I respectfully decline," Hurley announced. "I don't believe my representation of my client can be conditioned upon my taking an oath." He said he accepted the court's secrecy order, and that was enough.

Harlowe, in what he recalls as an "I am Spartacus" moment, gamely followed Hurley's lead. "Your honor, if I may, my position is the same."

The prosecutor, Waukesha County District Attorney Paul Bucher, was incensed. "It is simply an obligation of counsel to take that oath of secrecy," he stated, asking that the attorneys be expelled. Judge Mac Davis agreed, disallowing them from representing their client and adjourning the proceedings.

"If we ever get thrown out of a bar, we can literally say we've been thrown out of better places," jokes Harlowe, calling the incident "a reflection of the extent to which Steve is motivated by a sense of principle."

Hurley, who feels secrecy oaths mainly benefit the prosecution, is still indignant: "I'll be damned if I'll swear to God to something that's going to hurt my client."

The pair appealed, and the matter came before the Wisconsin Supreme Court. During oral arguments, Hurley agreed the dispute was essentially "a contest of wills." In the end, his will prevailed: The court ruled that a John Doe judge "does not have either the statutory or inherent authority" to make lawyers swear an oath when a secrecy order is already in place.

The case is enshrined in a bound volume in the State Law Library, but Hurley doesn't think it's had much impact: "As any lawyer will tell you, matters of principle rarely have any substance in a pragmatic world."

Steve Hurley is not any lawyer. He is, by any measure, one of the state's best criminal defense attorneys. He gets big cases and high-profile clients. He's represented a sitting governor, Scott McCallum, accused of improper use of state planes, and a state attorney general, Peg Lautenschlager, accused of improper use of a state vehicle (another lawyer handled her related drunk-driving case).

In recent weeks, Hurley has had two nationally noticed victories: the dismissal of charges against politically connected investment banker Nick Hurtgen and the stunning reversal of the conviction of state purchasing agent Georgia Thompson. Hurley argued that the indictment against Hurtgen did not allege he knew of a kickback scheme and that Thompson's alleged conduct was not even a crime.

Not bad for a lawyer who began his career by losing his first two dozen cases.

But he's also facing discipline from the state Supreme Court for using deception to get evidence, something police do all the time. And while the written reprimand sought is the lowest possible penalty, Hurley is fighting the charge.

For him, it's a matter of principle.

In more than three decades of criminal defense work, Hurley has honed his skills razor sharp, gathering insights into how the system works, and fails. He's come to view the media - including TV shows of the sort he's had a hand in - as an obstacle to justice. He sees how the power of the state and inherent biases of juries can conspire to convict the innocent, as happened to Georgia Thompson.

And he's learned, as he routinely tells his UW Law School students, that the worst thing a criminal defense attorney can do for his clients is believe in them.

A 'superlative' lawyer

Stephen P. Hurley, 58, shrugs off praise like some people dismiss insults. He says his record on cases he's taken to trial is only average, about 50-50. And he doesn't think having other people's lives hang in the balance makes his role unique.

"Every job has its burdens," he says, noting that lives also depend on "the guy who does the wiring on a car in Janesville."

Hurley recently moved to a new office with a private balcony on the Capitol Square. He's proud of his office environment, especially the large conference table where staff from secretaries to partners gather for lunch. It feels like family, which suits him fine.

His law firm, Hurley, Burish and Stanton, has 13 lawyers, including five who specialize in criminal defense. That likely makes it "the largest criminal defense firm in the state," though it's dwarfed by the State Public Defender's Office. One of Hurley's colleagues, Dean Strang, represented Steven Avery, convicted of murder after serving 18 years for a crime he didn't commit.

Hurley says he's been stalked and gotten death threats over his representation of unpopular clients. But he refuses to take himself too seriously. His office computer, positioned high so he must stand to use it, scrolls a screensaver message to clients: "Hey you! Yeah you. The one talking to Hurley. Listen up! He's not very bright but don't worry, I do all the thinking around here."

Yet Steve Hurley is someone other lawyers regard with reverence. "He's demonstrated over time that he's the real thing," says Harlowe, once Dane County's district attorney. "He's extremely intelligent and analytical, and he likes exploring arcane evidentiary issues and principles."

In a courtroom, Hurley is a commanding presence, theatrical without seeming to put on a show. "In a different life, Steve would have been an actor," says Harlowe. "He likes being on stage, and he's very good at it." (In 1992, Hurley played a defense attorney in the Madison Savoyards production of Trial by Jury.)

Hurley comes across as personable and sincere. Juries like him, though they may loathe his clients. Even opposing counsel tend to view him as a decent fellow.

"His word is his bond," says John Burr, a former assistant district attorney, who opposed Hurley often over the years. He calls Hurley a "superlative" lawyer, always meticulous and well-prepared. "He does everything well," says Burr. "If I ever got into trouble, I'd call him."

Asked who dislikes him, Hurley names Dane County District Attorney Brian Blanchard, who initiated the current disciplinary action against him, and Deputy DA Judy Schwaemle. Both declined comment, without explanation. (Hurley does share his take on Blanchard: "One of the most sanctimonious people I've ever met in my life.")

While generally regarded as media-savvy, Hurley has a running feud with the Milwaukee Journal Sentinel over items run by the columnist tag-team of Cary Spivak and Dan Bice. When the paper's reporters call, "I ask if Spivak and Bice still work there. They say yes, I won't talk."

Hurley calls the pair the "masters of Schadenfreude," blaming them, among other things, for trashing Hurtgen's reputation. Bice, citing his paper's circulation, thinks the standoff "hurts [Hurley's] ability to communicate with the public more than it hurts our ability to do our job."

But Steve Hurley is okay with that. For him, what matters is the principle.

'One day, I'll show you'

John Huebscher, executive director of the Wisconsin Catholic Conference and one of Hurley's closest friends, traces Hurley's values to an often-difficult childhood: "He knew what it's like to not have a lot of advantages." But rather than becoming bitter, the experience left him "altruistic and committed to justice."

Stephen Paul Hurley was born in Chicago in 1948 and grew up in Hyde Park. His French mother was a "war bride," having met his "biological" father, a U.S. soldier of Irish descent, in Paris during the war. The couple, who moved to the States after Steve was conceived, had three children.

Looking back on his boyhood, Hurley has "no memory of my father or any of his seven brothers or sisters being sober." His father left when Steve was 8. He never saw him again, and has "no idea" whether he's still alive.

Hurley's mother, Etiennette Pillet, who still lives in Chicago, says her first husband "is dead now." She doesn't blame Steve for wanting to erase him: "Why would you want to remember somebody who abandoned you?"

Pillet, now 80, was just 23 when she came to the U.S., and spoke little English. She worked as a secretary at an Army post in Chicago by day and attended college at night, earning a master's degree from the University of Chicago. "She's the strongest person I know," says her son proudly.

After her husband left, Hurley's mom taught education at the university's prestigious lab school, where educators practice approaches on students from kindergarten to high school. Because of her job and his ability, Steve was able to enroll, starting in sixth grade.

It was here that Hurley's mother met Roger Pillet, who became her second husband and the man Hurley considers his true father. Roger Pillet, now deceased, was a professor of education and a pioneer in the teaching of foreign languages. He also had a magnificent singing voice and performed with renowned opera stars.

"I awakened every morning to his singing," says Hurley, still an opera fan. "He'd be in the shower, practicing."

At school and in his neighborhood, Hurley grew up feeling alienated from his peers. "I didn't fit in, and they let me know it," he relates. "It made me want to get even. I remember thinking to myself, so many times, 'One day, I'll show you.'"

Hurley's mother says other kids picked on Steve and stole from him. "Why don't you fight back?" she once asked. He said it would only make matters worse.

Etiennette Pillet says her son was kind, "sensitive to people's feelings." Because money was scarce, he always worked, delivering papers and shining shoes and being a caddie. He was well-organized, with artistic ability and a knack for acting. He even took tap-dancing lessons as a young boy, and was quite good at it.

And one more thing: "He always said he wanted to be a lawyer, from very young." To her, this made perfect sense. "He was always very good at arguing," she says. "And that's a good quality for a lawyer."

'Fighting the government'

A good student, Hurley skipped two grades and was just 16 when he went off to Knox College in Galesburg, Ill., getting a degree in public administration and political science. He entered law school at Urbana-Champaign at 20.

"I couldn't even drink legally until I was in my first year of law school," he says.

Hurley hated law school, and considered dropping out. His legal career was saved by a summer job with the appellate division of Illinois' new public defender program in Ottawa.

"I walked in my first day, they said, 'Here's a transcript, you write the brief.'" There was no formal training, although the office's lawyers were available to answer questions. Hurley took to criminal defense work.

"I loved fighting the government," he says. "This was an outlet for the competitiveness brewing inside me."

Hurley worked summers with the program through law school and afterward, following a brief Army stint. This made him a better student and certainly a better lawyer. But he did lose his first 24 appellate cases, and at one point remembers literally banging his head against a wall.

Then, one day, he had an epiphany - the realization that he was undermining his effectiveness by demonizing the other side. Once he saw that "cops and prosecutors are not bad people," things turned around. "I began to win cases."

In 1975, when Hurley was 26 and with the public defenders' office in Mt. Vernon, Ill., he handled the first appeal of a case under the state's new death penalty law. Others in the office considered him too inexperienced and tried to get him removed. "When I got a whiff of that," Hurley recalls, "I wouldn't let it go."

His clients were a pair of thugs who committed a brutal, senseless double murder. Hurley was instructed to argue that the death penalty was cruel and unusual. But during oral arguments before the Illinois Supreme Court, "the words cruel and unusual never crossed my lips." His boss was furious.

Hurley intuited that the justices disliked capital punishment but would never buy that his particular clients didn't deserve to die. And so he argued that the process used to reinstate the state's death penalty was flawed.

The justices agreed, and the state's death penalty statute was struck down, at least for several years.

In 1976, Hurley and his wife (later divorced) moved to Stoughton. Both took jobs in Madison, she with the National U.S. Fish and Wildlife Health Laboratory, he at a small law firm, doing mostly lobbying work. He left after nine months to start a solo practice, based in downtown Stoughton.

Hurley handled all kinds of cases, even representing Stoughton against a man who flooded a city raffle with a quarter-million tickets. (The man won but so did Hurley, by pegging the raffle as unlawful.) His first criminal trial was successfully defending a young man who made a patently non-serious comment about shooting President Jimmy Carter.

But many clients assumed a really good lawyer would be Madison-based. "They'd call and say, 'Can you recommend a lawyer in Madison?' I'd say, 'What about me?' They'd say, 'No, this is serious.'"

Hurley opened a Madison office and eventually relocated completely. His biggest case, a class-action lawsuit against a Minnesota milk processor, dragged on for eight years, culminating in a six-week trial; he won. And then, in the mid-1980s, he had a trio of high-profile criminal cases - involving a prominent lawyer, three basketball players accused of sexual assault, and a woman who allegedly hired a hit man to kill a cop's wife.

"All of a sudden," he says, "I was an overnight sensation, after 17 years."

The trial as crapshoot

In the early 1990s, Hurley was contacted with a question about state law by the CBS show Picket Fences, set in Rome, Wis. After a few such contacts, he made a more substantial plot suggestion and was subsequently asked to review entire scripts. He shared in the show's 1992-93 Emmy for Outstanding Drama Series.

Hurley also served as legal consultant for ABC's The Practice and legal adviser on the 1996 film Primal Fear. The star, Richard Gere, ended up using one of Hurley's best lawyer lines, for when a client asks about fees: "Did you ever save for a rainy day? Well, it's raining."

Hurley's going rate is $350 an hour. Like most defense lawyers, he insists on payment up front. He says defendants often balk at paying afterward, even if they win.

Hurley reckons he's done about 75 jury trials, or two or three a year. Most criminal cases, of course, are resolved in plea deals. In recent years, trials are even rarer because "the stakes have gotten too high." He's had innocent clients take deals that force admissions of guilt.

"A trial is a crapshoot," he says. "Look at Georgia Thompson."

There, one juror who convicted Thompson of rigging a contract to benefit Gov. Jim Doyle said "nobody in the jury room had any doubt whatsoever" that Doyle and others were involved - a conclusion not supported by any evidence.

Hurley thinks juries are increasingly ill-prepared to do their job - to decide cases based on the facts.

Ironically, it's television that Hurley most blames for poisoning the atmosphere. Having grown up with shows like Perry Mason, which portrayed defense lawyers as noble, he's appalled that popular culture has shifted to exalt police and prosecutors, and denigrate his side.

"If you look at shows like Law & Order, there's not a single defense lawyer that isn't a sleazeball," says Hurley. "You don't trust their ethics, and you don't trust them to tell the truth."

The media have wrought other changes. Hurley thinks judges give harsher sentences when there are cameras in the courtroom. Like other elected officials, judges run for office vowing to be tough on crime, and by and large deliver. The public is also more punitive: "People no longer expect fairness or objectivity from the justice system, until they or a loved one are captured within it."

Even when he wins, Hurley is struck by the system's cruel power. Nick Hurtgen lost his job as an investment banker: "He was at the peak of his career, brought down for no good reason." And Georgia Thompson, an intensely private woman who was publicly humiliated, can never be made whole. "When you've had a lynching, you can't raise the dead."

Sin eater

Hurley is often asked: How can you defend a person you know is guilty? He always says that's the wrong way to look at it.

The American justice system deliberately sets a high burden of proof - beyond a reasonable doubt - for a criminal conviction. "Some of the guilty are supposed to walk, and I'm not going to feel bad about that."

He's never refused a client on moral grounds, though he's had some he considered dangerous. What did he do then? Represent them, of course: "If I have someone who is a danger to society and I don't do my job, what I do is become the judge and the jury, and that's wrong."

What bothers Hurley isn't that some guilty people go free but that some innocent ones don't. "That's what I lose sleep over."

Hurley is now in hot water with the Office of Lawyer Regulation, an arm of the state Supreme Court, which wants him reprimanded for hiring an intermediary who used deceit to obtain a boy's computer. The boy accused his client, Madison businessman Gordy Sussman, of showing him pornographic images and sexually molesting him.

The computer purportedly showed that the boy viewed pornography of the kind he alleged Sussman subjected him to. The judge disallowed this evidence at trial, where the boy testified under oath that he did not view such images. The jury convicted Sussman of molestation and possession of child porn, but acquitted him of showing porn to the boy.

In its complaint, the Office of Lawyer Regulation says Hurley could have told law enforcement of his suspicions and sought a court order for the boy's computer. Hurley's formal reply says he considered doing so "but reasonably concluded that [such actions] would result in notice to [the boy] and destruction of the evidence on his computer."

A hearing on the matter will likely be held later this year. Meantime, Sussman is appealing his conviction. "I've been prosecuted and convicted and denied post-conviction relief based on the most obvious lies and suppression of exculpatory evidence," he writes from his prison cell.

James Geis, an Illinois attorney who has known Hurley for decades, is now handling Sussman's appeal. He says Hurley's dedication and commitment to his clients comes at a price. When he loses a case, "He takes it harder than any other trial lawyer I can think of."

Hurley agrees criminal law takes a toll: "You see the worst side of people. You see the worst things people do to each other." Defense lawyers and prosecutors must both "be on guard to not let it pervert one's view of the world."

Indeed, Hurley calls himself a "sin eater," referring to a story about a man who eats food representing the sins of the dead so they can go to heaven. It is his burden, and he bears it heavily.

Hurley, now openly gay, has two children. His daughter Ellie, 27, works for a World Hunger Year, a nonprofit in Manhattan. His son Jacob, 24, lives in Madison and teaches at Woodland Montessori School. Hurley's biggest regret is not talking about his job with his kids when they were young: "I cheated them out of a portion of my life."

What his kids most wanted to know - were the people he represented guilty? - is something he could not afford to dwell on. Believing in one's clients, as many desperately want, is the last thing a good lawyer should do: "Belief is an emotional investment, and it will blindside you." It can stop a lawyer from gathering evidence dispassionately and from all sides.

For the past 18 years, Hurley has taught classes in trial advocacy and evidence at the UW Law School. He sees this as a way of "giving back" to a profession that's been good to him. Besides, "I like to teach. It makes me better at my craft."

And for Hurley, that's what it's all about. "They call law a practice," he says. "How many years do you have to practice before you can say you're a pro? The point is, if you're good, you're always practicing for your next case. You've got to keep growing."

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