David Martin, Willingham’s Trial Lawyer, Speaks Up (Updated With New Links)
Cameron Todd Willingham’s trial lawyer, David Martin, on Anderson Cooper yesterday.
Awfully defensive for a guy who thinks he is right. Repeated highlights:
- “You pour lighter fluid on a carpet and set it on fire, it looks just like those pictures.” (We’re not much on the scientific method here in Texas.)
- “I have been a trial lawyer for 25 years.” (Meaning that in 1992 he’d been a trial lawyer for only eight years.)
- “That’s absurd.” (Repeated frequently enough that it must be absurd.)
Texas Moratorium Network, who sent me the link, asked (reasonably):
Is there any Texas Bar ethical rule that should constrain lawyers from arguing for their former now-dead client’s guilt, like attorney-client privilege or fiduciary responsibility, even after the former client is dead. Maybe that would be an interesting topic for a blog post, Martin seemingly violating the trust put into him by his former client. If a person can not trust that his lawyer will not turn on him and start advocating for his guilt, then how can a person trust the lawyer enough to speak openly with him. I would be interested in reading what lawyers think are their ethical obligations to former clients.
As we say in the criminal courthouse, so much for the facts.
How about the ex-lawyer’s thoughts and conclusions (if they can be revealed without revealing facts)? If the lawyer says, while litigation is pending, “I think my client was guilty” is he violating some disciplinary rule? The DRs don’t include an explicit client loyalty provision, but this may be one of those situations in which ethics trump the rules.
If the lawyer says, after litigation is over, “I think my client was guilty” (again, without revealing facts), likewise, I don’t think he’s violating any disciplinary rule.
You don’t see Waco’s excellent criminal appellate lawyer Walter Reaves, who represented Willingham on appeal, shooting his mouth off on CNN. I’ve got to wonder why Martin would want to go on TV to run down his client. Not to defend his own honor—there is, as far as I know, no suggestion that he was ineffective in Willingham’s trial. Maybe just for the publicity? Or to help out his fellow rancher Rick Perry?
As a criminal defense lawyer who has had more than his 15 minutes of fame and has spent much of this week trying to keep his face (and his clients’) off the television screen, I’m left scratching my head.
Update: Preaching to the Choir, Chandler, Arizona criminal defense lawyer Matt Brown, New York criminal defense lawyer Scott Greenfield, Ohio criminal defense lawyer Jeff Gamso, Texas Moratorium Network, and Willingham’s appellate counsel, Waco criminal defense lawyer Walter Reaves (link to front page—permalink is broken) himself check in.
About The Author
There are plenty of lawyers who relish the cameras. The real question is what you say when they’re on.
It’s been a long time since I’ve practiced in Texas, so I’ll take your word for what’s in the DRs there about any continuing duty to the client. But most (if not all) states provide that the lawyer has a continuing duty of loyalty to the former client – at least in regard to the matters of former representation. ABA Standard for Criminal Justice 4-3.5(d) sets out a general principle of continued loyalty:
“Defense counsel who has formerly represented a defendant should not thereafter use information related to the former representation to the disadvantage of the former client unless the information has become generally known or the ethical obligation of confidentiality otherwise does not apply.”
I don’t see any way that what Martin said doesn’t violate that principle. Willingham has some chance of exoneration from a horrible crime. He may not be alive to personally enjoy the benefit of that exoneration, but his reputation certainly will should it happen. That chance, and therefore Willingham, is directly disadvantaged by what Martin said. I think it’s flat out unethical.
And as the Vince Foster case (Swidler & Berlin v. US) says, part of the reason privilege extends beyond death is that clients have interests that extend beyond their death. This is a prime example.
Mr. Martin’s statement about conducting an experiment with lighter fluid and getting the exact same kind of patterns that he saw in the Willingham residence actually proves the point of the fire scientists who have researched the development of fire patterns in fully involved compartments.
While it is true that you can make a pattern with an indictable liquid in the open, you can make that same pattern without an indictable liquid inside a compartment. Patterns produced during full room involvement can look exactly like patterns produced by an indictable liquid, and care must be taken in their interpretation. In fact, if the laboratory report comes back negative, the pattern should be attributed to the radiation that accompanies full room involvement.
In response to your first paragraph:
That lighter fluid and carpet creates those patterns proves only that lighter fluid and carpet in fires in the open create those patterns.
Your saying that it proves that other things burning inside a compartment make the same patterns is just as unscientific as Martin’s implying that it proves that only lighter fluid creates such patterns. Maybe more so. Martin sees a white swan, and concludes that all swans are white. You see a white swan as proof that black swans exist.
Mark,
I think you are missing Mr. Lentini’s points. What he is saying here is what he and other arson experts have been saying for quite some time now. One cannot tell anything about so-called pour patterns by visual inspection because flashover can produce something that looks as if accelerant were used. I think Mr. Lentini knows independently that black swans exist, and so is correcting Mr. Martin, who thinks that they do not.
I got that; it’s actually what I said (much more elegantly) with my two references to the science of Martin’s “experiment”.
No, what I take exception to is the first paragraph of Mr. Lentini’s comment, in which he suggests that Martin’s “experiment” proves some point. I should have said that. Oh, wait. I did.
No good comes from trying to grind an already sharp ax.
Is it hard always being the smartest lawyer in every thread?
You sassin’ me?
[...] Jeff Gamso perhaps sums up best: It’s been a long time since I’ve practiced in Texas, so I’ll take your word for [...]
[...] video mostly speaks for itself, but you can read some great blog posts about it here, here, here, and here. Willingham’s appellate lawyer even wrote about it here (the link is to the [...]
Mark, why do you believe the attorney-client privilege in a criminal case persists after death? In a criminal case, I’m wondering what possible interest the client would have after death. is there a basis for your opinion?
Swidler & Berlin v. United States.