As every criminal defense lawyer knows (only too well), deception by police is a “necessary law enforcement tactic” in the war on crime.  We’ve heard this over and over, as police lie to people to get them to confess, to agree to commit crimes, to nail some poor miscreant’s butt to the wall.  We’ve become so inured to the fact of law enforcement deceptive tactics that we don’t even blink when a defendant tells us the story of how he was manipulated into saying something that never happened.  A travesty perhaps, but an everyday travesty that rarely rises to the level of being significant.

So what happened when a criminal defense lawyer uses a bit of slight of hand to gain access to the truth in order to level the playing field?  Check out this AP story about the hoopla it caused.  It really isn’t about the particulars of what the lawyer, a fellow named Stephen Hurley, did on behalf of his client.  Or about the client, yet another in the long line of upstanding Americans accused of sexual misconduct with a young boy (I know, but as I’ve said before, there has been an explosion in child molestation/porn prosecutions courtesy of the internet). 

What this IS about is whether the tactic of deception that is fundamental for one side is unethical and improper for the other.  Why?  If it gets to the truth of the matter, doesn’t that count for anything?  More to the point, it’s a double standard that puts the defendant at a clear disadvantage in attempting to show that he is not guilty when the cops can lie and deceive and manipulate, all with the smiling approval of the court, but the defense lawyer is precluded from fighting fire with fire.

The whole thing “emits an unpleasant odor?” I think so.  I never accepted the premise that police, our public servants sworn to uphold the law and the Constitution, must necessary climb into the gutter to seek out, if not create, criminals to arrest and prosecute.  What is wrong with expecting our police to tell the truth?  How did honesty and integrity on the part of law enforcement fall out of fashion?  Once you’re on the slippery slope of deception for the greater good, a variant of “the ends justify the means,” the integrity of the system becomes secondary to the end result of getting the bad guy.  This is a recipe for disaster.

Thus, it would be far better for society if our law enforcement and legal system encouraged truth and honesty and discouraged deceit and manipulation.  But to limit this focus to the defense is insane.  The answer is not the demand that the defense lawyer hold to a higher standard than the police, but just the opposite.  All players in the system, from the cops to the judge, should be held to a standard of honesty and integrity in the performance of their duties that will give rise to renewed public faith in the criminal justice system, both as to the process as well as the result.  Either we all live in the gutter or we expect better of everyone.  What’s good for the goose is good for the gander.  This is the discussion that Mr. Hurley’s conduct should have generated.  Unfortunately, it did not.