The Unpredictable Quarterback

Joe Hurley is 65. He’s been a criminal defense attorney for 32 years. He knows just about everybody in Delaware, and just about everybody in Delaware knows him. The stories are abundant. There was the time the state police told him there was a contract out on his life, though it was only for $2,500, which he found insulting. Or his insistence that God told him not to represent Thomas Capano in a murder case, prompting Hurley to walk away from one of the highest-profile trials in memory. (Capano, a former Delaware deputy attorney general, was convicted of murdering his mistress in 1996 and dumping her body in the ocean.) Or the day he showed up in court after lunch without a shirt, just a suit jacket and a tie.

You know the scrambling, unpredictable quarterback who leaves the other team looking slow and confused? That’s Hurley. He writes letters some see as insanely funny, others obscene; he sings original rap songs for closing arguments; he comes to court wearing surgical gloves and a doctor’s mask so as to not infect anybody with his cold. And he is considered one of the premier defense attorneys in Delaware.

“Whenever you go into court with Joe you’d better be ready for the unexpected,” says Dover attorney John Garey, who adds, “When I have a legal question he is the one I call—and I was a prosecutor for 15 years.”

Adds U.S. District Judge Joseph J. Farnan, a Hurley partner in the 1970s who owned race horses with him: “You hear a lot of stories about his flair and flamboyance but a lot of that is a cover for a very skilled and substantial trial lawyer. I have seen a lot of highly skilled trial lawyers and Joe is at the top of that group.”

Based in center-city Wilmington in a small office, Hurley works alone, save for an assistant who organizes his professional life and tells him when his hair is sticking up in the back; his 90-year-old mother, who does the books; and an administrative assistant who fields calls from two categories of clients: the worried and the ones looking at time. About a quarter of his work is DUI, with the rest drugs and assorted crimes.

His big cases were, well, huge. Remember Amy Grossberg, a University of Delaware student, and her boyfriend, Brian Peterson? In 1996, Grossberg, who hid her pregnancy from her parents, delivered a baby at a motel, assisted only by Peterson. Hurley represented Peterson, who threw the baby into a Dumpster. Though the couple first claimed the baby was stillborn, the state presented evidence that showed he died of head fractures and shaken baby syndrome. Hurley says the defense had completely contradictory scientific evidence. “There was a lively issue about that,” he says. “It was very easy for me to view the matter as a dead [not murdered] baby and what the hell do you do at that point in time? Panic, maybe,” he says. “Is throwing a dead body into a Dumpster cool? No. But it was a panic situation.  And [Peterson] twice tried to take her to an abortion clinic—he was like in a Shakespearean tragedy, trying to support her and trying to do the right thing. Had it been a live child it would have been an entirely different situation.”

Peterson pleaded guilty to manslaughter and served 18 months; Grossberg served 22 months. The upshot is Hurley is friends with Peterson and visits him once or twice a year in Florida, where he is married and is the father of a child. “It’s like it never happened,” Hurley says. “We never talk about it.”

Hurley’s path to the law started in 1964 when he was a senior at the University of Delaware. He was driving behind a gentleman going too slow for his taste so he pulled out to pass, crossed a couple of solid yellow lines, waved a hatchet at the driver and went on his way. Then he was pulled over by a police officer who had witnessed the scene. Sir, the ax?

Hurley says he probably had the ax for self-protection, since he doesn’t chop wood. He managed to avoid being charged with possessing a concealed deadly weapon, but he did get written up for reckless driving and had to show up in court.

He wasn’t impressed with the lawyers he saw in court that day. He thought he could do better. So he took the LSAT, without studying, and knocked it out of the park, which paved his way to Penn State’s Dickinson School of Law. After the first semester he was first in his class, but by his final year he wasn’t even showing up, having become more interested in horses and women. “I was just so damn lazy,” he says. He passed, barely.

He failed the bar exam—”of course”—but passed on the second try, and got hired as an assistant prosecutor in Delaware in 1971. That’s when the switch flipped. Suddenly he was working 12 to 14 hours a day and loving it. “I found out I had a talent,” he says. “The hours didn’t matter.”

Prosecuting got to be so routine he would barely look over a case file before walking into court. Then the regime changed and he decided it was time to go. “The attorney general couldn’t stand me,” he says. He thought defense would be interesting, but he was nervous.

“There wasn’t any more challenge in prosecuting and the money wasn’t so great but I was insecure and afraid that I’d be a failure [in defense work],” he says.

But he took a deep breath and switched sides. You wouldn’t recognize the insecurity these days. He favors polka-dot ties and Crocs with his suits, which prompted one attorney—who considers Hurley a friend—to say he dresses “like a rodeo clown.” Colleagues shake their heads but admit that whatever he does, it works. Usually. When he tried to play a recording of The Godfather theme as a witness took the stand, the judge shut him down quickly—and he lost the trial.

He thinks of himself as an idiot savant, a natural when it comes to the law but not much else. “I can’t change a flat tire,” he says. “I can barely use a computer.”

What he can do is size up racehorses—he owns 30 (his favorite is “Always a Virgin”)—and people. He knows how to push their buttons. Consider an excerpt from a “Hurley-gram,” this one sent to a deputy attorney general who was prosecuting a lewdness case that involved his client—a woman—who was found in flagrante delicto in an automobile with a gentleman. Hurley starts the memo by asking the male DAG a question: “Since you were 14 years of age … how many different times have you had sexual activity in an automobile or a public place with a female?” Then he added: “Now the reason I have asked that question is because you are a lot of things, and you are not a lot of things, unfortunately, but I never saw you as a hypocrite.”

In 2005, when the Delaware Legislature was getting ready to sign off on making Republican Attorney General M. Jane Brady a Superior Court judge, Hurley—who is apolitical in the public sense—stood alone to protest. “The Delaware Bar voted 17-0 against confirmation but no one had the courage—did I say ‘stupidity’?—to stand before the Senate.” He unfurled a hand-lettered sign that read, “Judgeship for sale.”

Was this smart on Hurley’s part? No. It was bound to be futile and would only serve to make enemies. In fact, Brady was easily confirmed. Why did he do it? He had a problem with the process, which he felt involved inside deals that left more qualified candidates out in the cold. “It was the right thing to do,” he says. “It just stunk.”

It was seen as such a brave gesture in some quarters that a group of criminal lawyers presented Hurley with a plaque: The Balls of Steel Award. 

Former Superior Court judge William Quillen says that in many ways Hurley is “the conscience of the bar. He speaks directly about what many say privately but don’t want to say publicly—and he does so at some risk.”

Including having a price put on his head. That happened after he decided to drop a client who was accused of murder. The client didn’t much like that decision. Not long after, the state police warned Hurley that somebody wanted him dead and was willing to pay to make it happen. “The police even offered protection; I was paranoid for the longest time,” Hurley says. But time passed, and Hurley didn’t, and everything was good again.

 “Yes, he is a character,” says Peter Letang, a career prosecutor who now does criminal defense work, and who has tried many cases against Hurley. “But he is first and foremost a very honorable person. I have never doubted his word on anything. He is good to his word without exception. And new deputies, he beats their ears back regularly and they still like him.”

 What’s not to like? The ties, maybe.