Posted: April 24, 2007
By Celia Cohen
In the pugilistics between Joseph A. Hurley and M. Jane Brady, there was not supposed to be a Round Two, but here it comes.
In this corner, wearing one of the polka-dotted ties the courthouse crowd knows him for, is the "Sartorial Splendor," the noted criminal defense lawyer Joe Hurley. Despite his outward savoir faire, Hurley is a brawler, the sort who would be delighted to scandalize a wedding when asked to "speak now or forever hold his peace."
In that corner, wearing the black robe, is Judge Jane "Lead-With-the-Jaw" Brady, a banged-up gut puncher who hates to go down for the count, in elections or anywhere. She also hates to be questioned, so much so that she once appeared in a Halloween parade as Joan of Arc -- from God's mouth to her ear.
Round One between them was the fabled "It's Over in Dover" bout, a punch-up some might say was fixed, when Hurley dazzled but somehow never laid a glove on her.
At the time in 2005, Brady was on her way from being the attorney general to becoming a judge in the deal of a lifetime. Brady, a Republican, juked away from a perilous re-election campaign by jiving to the bench, while the Democrats got to gobble up her old office, first with a temporary appointment by Gov. Ruth Ann Minner and then with the election of Joseph R. "Beau" Biden III.
It certainly reeked of politics. Minner's own Judicial Nominating Commission held its nose and sent the governor a list of six possible candidates, instead of the customary three or four, as if to say it had to reach way down to include Brady. The Delaware State Bar Association's judicial appointments committee harrumphed and rated Brady "not recommended," although the bar association itself chose not to act on it.
Hurley could not bring himself to do the same. He marched to Dover, a one-man protest, for Brady's confirmation hearing before the state Senate.
He unfurled a sign, "Judgeship for sale." He called Brady's appointment a "rigged nomination." He said it was like stuffing a ballot box. He said it was like a fight promoter guaranteeing a boxer that the other guy would take a dive. He tossed around the word "corrupt."
The Senate was untroubled. The Democrats were content to take over the Attorney General's Office, and the Republicans were content to get Brady out of the way and perhaps find a better candidate -- which they arguably did, with Ferris W. Wharton, even though he lost to Beau Biden. Together the Democrats and Republicans voted her onto the Superior Court.
Before she went there, Brady conceded it would be a bad idea for her to be the judge on any of Hurley's cases. "I probably would have to recuse myself. It would probably be best," she said.
Round One was over. All was quiet for a year while Brady did not preside on any criminal matters, so the ones that began while she was the attorney general would filter out of the system. Then last month Hurley's cases began to bump up against Brady's docket.
Hurley wanted to deal with Brady about as much as the Republicans want the Clintons back in the White House. Round Two was about to begin.
Hurley zipped off an e-mail, asking Brady to step aside. When he followed up by asking her about it in court, he said her reply was an icy, "I am not ready to deal with that matter yet."
Being Joe Hurley, he decided to escalate the situation. Earlier this month he filed a motion seeking a court order to have Brady remove herself from his cases.
Being Jane Brady, she denied it by way of a letter that Hurley received Tuesday. Hardly deterred, he said he will take up the matter with the Delaware Supreme Court in an appeal. (This is so classic.)
Brady quoted a number of legal authorities and case law in issuing her denial. "Where a party or a party's attorney acts toward a judge in a manner calculated to create bias or prejudice, disqualification of the judge ordinarily will not be required," one authority said.
Brady wrote of herself, "I find no basis to hold that there is any conflict in handling matters in which Mr. Hurley represents litigants. I foster no animosity or ill will toward Mr. Hurley, based on his comments on my date of confirmation or any other."
As a sidelight, Hurley used his motion to do more than recount the awful things he said when Brady's judicial nomination was before the Senate. For good measure he also told a back story, never made public, about another punch-up the two of them had -- a notorious case in which Hurley represented Wayne N. Elliott, a prominent lawyer who shot and killed a neighbor's dog in rural Sussex County in late 2001.
Hurley called the dog-shooting case as political as Brady's judgeship, although at the time, everyone -- including Hurley -- said politics had nothing to do with it.
As Hurley summarized it, the incident began when Elliott heard his wife scream and got a shotgun. Their family farm in Delmar had been menaced by rogue dogs from a nearby woods, so when he saw a boxer he did not recognize, he assumed it was part of the pack and killed it.
The dog, however, belonged to a neighbor and had run off without a collar. Elliott was charged with two felonies -- cruelty to animals and possession of a firearm during the commission of a felony -- putting him in jeopardy of a mandatory jail term from three years to 20 years as well as disbarment.
Hurley expected his client, whose record was otherwise clean, to be able to plead to a criminal misdemeanor, but he was rebuffed. Brady was up for re-election in 2002, and Hurley said he was told it would look as though Elliott was getting off because of who he was.
"[I] was advised that 'this is an election year' and the reason no accommodation could be made," Hurley wrote in his motion seeking Brady's recusal. "That explanation was not welcome, satisfactory or just."
Hurley resorted to Plan B. He dragged out the case with a constitutional challenge to the animal-cruelty statute and managed to delay getting Elliott to court until two days after the election, when Elliott was allowed to plead guilty to a criminal misdemeanor, as Hurley wanted all along.
It did cause a howl because it did look like special treatment, postponed until the votes were counted. It probably would have been enough to change the outcome of the election, which Brady barely won with 48 percent of the vote in a three-way race.
After that election, Brady hung it up. She never had to stand before the voters again. Now Hurley wants similar consideration, so he never has to stand before Brady, either.