Rainy Day Man
Stephen P. Hurley fights ‘the 21st-century version of lynching'
Published in 2008 Wisconsin Super Lawyers magazine
By Jim Walsh on November 17, 2008
Stephen P. Hurley’s office, tucked into the far reaches of the stylish fourth-floor law firm of Hurley, Burish and Stanton in downtown Madison, is perhaps best defined by what sits outside it: two chairs on a patio. They offer an oasis for the many lost souls who sat there and put their future in Hurley’s hands.
Inside, hanging on the wall over his computer, you’ll find the requisite undergrad and law school diplomas—Knox College and the University of Illinois College of Law at Urbana-Champaign—which share space with a print of a French judge that his mother gave him and the Emmy certificate he won as a writer for the television show Picket Fences. A row of framed photos of Hurley’s two children dominate the office’s entrance.
Then there’s the painting, titled Reefer Man, based on the archetypal weed-smoking jazz musician made famous by Cab Calloway and Louis Armstrong in the ’30s, that hangs near the window looking out onto Capitol Square. Hurley found the portrait years ago when he walked into a New Orleans gallery, looked at it and thought, “That’s like every guy I grew up with on the South Side of Chicago.”
Not to mention a reminder of many of his clients today.
“Wisconsin is number one in the nation for incarcerating black people on a per capita basis,” says Hurley, sitting behind his desk and clad in an uncharacteristic suit and tie, which he donned for court earlier that day. “Madison is number one in Wisconsin, and number three in the nation. Liberal, politically correct Madison. And that is something that keeps me awake a lot. Frustrates me a lot.
“Most of the African Americans that we are putting away in prison are younger kids for drug offenses. What we do with sentencing in this country is wrong. It’s so wrong. And I love this city, but I’m so ashamed of it because of that. To me it is the 21st-century version of lynching.”
Like lynchings, the judicial process that imprisons one out of every four black men in this country is hidden.
“Technically it’s open to the public, but the media’s never there,” Hurley says. “They all want the big splash, the guy who hid his daughter away for 30 years and sexually molested her. They never go to the courthouse. Most people think [African Americans get arrested more] because they commit more crime, and they don’t. It’s because we concentrate police in their neighborhoods. You only get fish from the hole you put your pole in.”
To be sure, the fish in Hurley’s world stink—murderers, rapists, drug dealers—all of whom get the benefit of his professional but passionate demeanor and vast experience several days a week at the Dane County courthouse, a few blocks from Hurley’s office.
This line of discussion inevitably leads to the question. At a cocktail party, with friends, strangers, or in an interview, the question always looms. The question bores him. So much so that Hurley brings it up before it’s even asked.
“I can tell you how films get written,” says Hurley, who, in addition to writing for Picket Fences and The Practice, served as legal consultant for Primal Fear, the 1996 courtroom drama starring Richard Gere and Edward (“He saved the film”) Norton. “I worked on this film all summer long. They were filming it in Chicago, and I was sitting at home, 10:30 at night, the phone rings. And it’s the director and the set writer.
“I’d just been through two really intimate hours with this absolutely beautiful bottle of red wine. I had a good book, you know, one of those really perfect nights. I was pretty tipsy. The phone rings and he says, ‘Steve, we need a scene where he explains why he’s a defense lawyer.’ And I go, ‘OK, I’ll write it in the morning.’ They say, ‘No, we’re shooting it in the morning.’ I go, ‘OK, ask me the question.’ And they’re quiet, and I say, ‘Ask me the goddamn question: ‘How can you defend these people?’
“And I launch into this drunken soliloquy and it takes over an hour, because the set writer is there going, ‘Wait a minute, I’ve gotta take notes.’ And I go see the film, and there’s a scene with Richard Gere drunk in a bar with a reporter. And Gere turns to him and goes, ‘Go ahead. Ask me the question.’ And it’s verbatim what I said, and the really bad part is I gave away my best line.
“One of the hard parts about being a defense lawyer is when people come to you, they’re in a lot of pain. So they come in and I know they’re in a lot of pain, and one of the things I have to do is get them to calm down, get them some perspective. But then I have to tell them how much this is gonna cost, and it ain’t cheap. So here they are having this very emotional experience and then I’m gonna tell them that they’re going to have to hock their house or whatever, and there’s this look they get and it’s understandable. I know that look. And I used to say, ‘Did you ever save for a rainy day? It’s raining.’
“That line never failed. Well, I gave away that line and I can never use it again because they’ll say, ‘Oh, you got that from a Richard Gere movie.'”
For $350 an hour Hurley offers clients a very calm port in a storm. Spend even an afternoon with him and you will discover an extremely cool customer, a man who has developed the skill to both winnow through and balance the chaos of the human condition, which likely comes from a life launched by hardscrabble beginnings.
Born in 1948 to a French mother and an Irish-American soldier who met in Paris during World War II, Hurley grew up in Hyde Park in Chicago. His mother, Etiennette, spoke no English when she and her husband came to the States, but she learned the language quickly, worked as a secretary during the day and at night earned her master’s degree from the University of Chicago. The couple had three children. Hurley’s alcoholic father left when Hurley was 8 years old.
To support the family, Etiennette (now 80 and still living in Chicago) taught education at the University of Chicago’s prestigious lab school, where she met her second husband, the man Hurley considers his father, Roger Pillet. The lab school’s curriculum is based on educators’ individual approach to individual students from kindergarten to high school. Hurley was enrolled in sixth grade.
“I literally came from the wrong side of the tracks,” says Hurley. “When my mother got that job at the University of Chicago, my sisters and I were transferred to this unbelievable educational experience. But most of the kids who went there were faculty kids, extraordinarily wealthy kids, and true geniuses. The kids that were 12-years-old-and-going-to-university-type kids. And I didn’t fit well into any of those groups, and they let me know it. I grew up with a chip on my shoulder, I admit to that.
“But I wasn’t a street fighter. I was a scrawny kid; I used to get the crap beat out of me. If you look at the class photos from grammar school, you’d see that in four years, it went from being [a] virtually all white [student body] to virtually all black. This shift came when I was in second grade. There was white flight, and we couldn’t afford white flight, and I got the crap kicked out of me just because I was the wrong color. At the same time, my friends would be black and they would be the ones who would come and defend me.”
Simultaneously, Hurley was starting to struggle with his sexuality. All around him, boys and girls were in the first throes of adolescent heterosexual romance, but not him. Still, after a two-year hitch in the ROTC (followed by “a long eight years in the reserves”) he became the quintessential family man. He ultimately came out when he was a 35-year-old father of two, which led to his divorce in 1976.
“There’s no ‘my coming out was worse than your coming out’; it’s traumatic for everyone,” he says. “I think it’s less so today. It was a different time. When I grew up, not only were there no role models, it was forbidden. You don’t recognize it in yourself, and so there are times in your life when you know something doesn’t feel right. Like dating. Or getting married.
“In one sense, I [got married] because everyone was doing it and in that way it felt right. But I can’t live a double life like that. It’s too hard. And one of the things you think is: [Being gay is] going to affect your business. But one of the things that says everything about being a criminal defense lawyer is that it’s a results-based profession. So people don’t care if I go home at night and screw chickens as long I get them off the hook.”
Hurley has represented both the dregs of society and the diamonds, including 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. He successfully defended three University of Minnesota basketball players accused of raping a Wisconsin student in 1984.
Recently, Hurley notched what may be the highest-profile victory of his career: the reversal of the conviction of state purchasing agent Georgia Thompson, whose alleged conduct, Hurley argued, was not criminal.
Thompson was brought up on charges by U.S. Attorney Steve Biskupic and convicted of awarding a contract to a travel consultant and donor of Democrat Gov. Jim Doyle. Upon the reversal, the Milwaukee Journal-Sentinel opined: “Finally, the justice system has corrected itself and freed Wisconsin’s unwitting political prisoner, Georgia Thompson. The former state procurement supervisor went to trial and to prison on the basis of evidence so flimsy it’s scary. If such weak proof can put her behind bars, are any of us safe?”
“I have a lot of clients who did something wrong,” Hurley says. “And do I agree with what they did? The answer is almost always no. Do I believe that the government’s approach to them, once we’ve determined they’ve done something wrong, is always appropriate? Most of the time, no, I don’t. Nor do I think it’s in the best interest of society.
“In the case of Georgia, I really didn’t think she’d done anything wrong. And those are more rare cases. In other words, I knew what they accused her of and I knew what she did, and they were trying to define what she did as being wrong. I just couldn’t agree with that.”
Ask other attorneys about Hurley’s abilities and the same words keep coming up: “smart,” “ethical,” “thorough.”
Both John Skilton, of Heller Ehrman, and former judge Susan Steingass, now with Habush Habush & Rottier, talk about Hurley’s good judgment. He knows “what cases to pursue, which ones not to,” says Skilton. Steingass is impressed with Hurley’s “extremely good judgment in making decisions about how to present evidence, how to defend the case.”
But there’s something more, something harder to define, something beyond the encomiums. Judge Elsa Lamelas, who butted heads with Hurley back in the late ’90s when they served together on the criminal penalties study committee, and who calls Hurley “a total pain in the neck,” adds that, while she admires both his intelligence and his commitment, “I would say that one of his talents as a lawyer is that he thinks differently—and it’s the sort of thing that’s hard to put one’s finger on.” She adds, “He’s clearly approaching things in his own way.”
Former Gov. Tommy Thompson alludes to this quality as well. “He can see a factual situation and come up with a defense better than any person I know—and one that most lawyers would not see as quickly. Or ever.”
“Several years ago I heard Steve lecturing a group of U.W. law students about how to prepare for trial,” says Brian Butler of Stafford Rosenbaum. “He said their knowledge of their case should be like a sphere, all the parties’ factual and legal positions being points on the sphere, connected by lines, such that a reference to one point would direct them mentally to all of the related points that supported their story of the case and their legal positions. In short, think globally about your case.
“I thought that was a creative and useful teaching device.”
Yet the man Gov. Thompson calls “the best criminal lawyer in Wisconsin and Illinois combined” almost quit law school. Midway through his first year, Hurley was bored out of his skull. The only thing that kept him going was the fact that his mother wanted him to be a lawyer. That, and a pivotal phone call.
“I got a call from a lawyer I knew in college who had had a very successful practice, and he chucked it all to start out with this federally funded project doing criminal appeals,” says Hurley. “He said, ‘We have in the budget for a couple of student interns for the summer, do you want to come do it?’ I thought, ‘What the hell,’ and I did it. I walked in and they hand me a transcript and they say, ‘This is your case, go write the brief.’
“And I found that I just love fighting the government. It was the challenge of all of the government’s resources coming to bear on you and your client, where you had nothing comparable in terms of resources. All you had was your wits and a lot of hard work. And if there’s one thing an immigrant’s kid knows how to do well, it’s work into the night.”
Even so, when he wins a case, he never has a “jumping up and down moment.” He says he “used to be more cowboy” about his approach to fighting the government, but with maturity comes perspective. When he wins, he simply takes a walk. He might have a cigarette. Then it’s on to the next case. Such behavior suggests a Zen master who minimizes winning and shrugs off defeat. That suggestion would be wrong.
“The lows are really low,” Hurley says. “The lows are really low. I lose a case, and that’s really hard to bounce back from. It takes me months. Maybe it’s perverse; maybe I hate losing more than I like winning. Because the bottom line is that I was the last defense. I don’t imagine it’s any different than how the physician who works in the ER feels when he loses a patient. He’s not the one who brought him there too late, he’s not the one who had anything to do with the condition he was in, but when the guy gets wounded, all he knows is, ‘I have to do everything I can to save him.’ And if he loses him, he’s going to take it hard.
“And I’m not very different that way. It’s a hard moment when you see your client put in cuffs and taken out of the building.”
“The better he gets, the more humble he becomes—and that’s the truth,” says former Dane County District Attorney Hal Harlowe. “He doesn’t take himself that seriously, but he takes what he does seriously.”
This day, as the clock in his office moves towards 6 o’clock, Hurley heads off to his monthly informal dinner meeting with a group of friends—writers, academics and journalists. As he climbs into his car and pulls out of the parking ramp, he tells his visitor about his love of jazz and about his son, a budding musician. Then he wants to know about his visitor.
He is obviously more comfortable asking questions than answering them, and in that moment, it’s plain to see that Hurley is a student of humanity, and of human tragedy, and how the shape of a life can turn in a single moment. When he and his visitor pass by Lake Monona, which churns furiously in the summer wind, he says, reverently, “That’s where Otis Redding died. Plane crash.”
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