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.

My position is that a) all facts the lawyer learns in the course of representation are privileged; and b) this privilege survives the end of representation and the client’s death. So, for example, the fact that the defense team did its own pseudoscientific experiment would be privileged and not something that the ex-lawyer would be free to reveal (without the client’s permission).

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 Mark Bennett

Mark Bennett got his letter of marque from the Supreme Court of Texas in May 1995. He is famous for having no sense of humor when it comes to totalitarianism.
This entry was posted in criminal defense lawyers, death penalty, ethics and/or professionalism, media and tagged , . Bookmark the permalink.

17 Responses to David Martin, Willingham’s Trial Lawyer, Speaks Up (Updated With New Links)

  1. Jeff Gamso says:

    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.

  2. John Lentini says:

    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.

    • Mark Bennett says:

      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.

      • Mark Bennett says:

        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.

      • Michael says:

        Is it hard always being the smartest lawyer in every thread?

      • Mark Bennett says:

        You sassin’ me?

  3. Pingback: Capital Defense Weekly » Blog Archive » Ethics check: Willingham style

  4. Pingback: Shameful — Chandler Criminal Defense

  5. Mike Trent says:

    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?

  6. Tim Burton says:

    If you read the Willingham trial transcripts, it seems obvious that Martin did a horrible job as defense attorney.

    His biggest error was not finding an arson expert who would have disputed the state’s case. There were plenty around. Gerald Hurst, who wrote the 2004 report on the Willingham fire, lived in Texas and had been consulting on arson cases since 1972.

    Martin also failed to use the 1992 edition of Guide for Fire and Explosion Investigations, the standard manual for scientific arson investigation, to vigorously attack the methods and conclusions of the arson investigators.

    Martin also failed to point out how many of the neighbors and other witnesses to Willingham’s behavior during and after the fire changed their testimony from the original police statements to make it incriminate Willingham at trial.

    Martin failed to mention in the closing arguments that Willingham loved his klds and had no motive to kill them. He should have held up a photo(s) of Willingham playing with one or more of his children. He also wasted a lot of time talking the Bible.

    Martin bought in to the prosecutor’s theory that accelerant had been spread throughout the house, and came up with a bizarre alternative theory that the 2-year old spread oil from an oil lamp and then was playing with a lighter or matches and started the fire. That was stupid.

    A much more reasonable theory was that the 2 year old dropped something close to the space heater, such as a blanket, and accidentally started the fire. The mother remembers the healer being on, and it was Dec. 23. Martin could have checked the weather report to see how cold it was.

    Martin only called 2 witnesses for the defense, and the testimony of one of those was thrown out as hearsay. That was an inadequate defense.

  7. Pingback: Incendiary: The Willingham Case | Justia Law, Technology & Legal Marketing Blog

  8. Scott Fenney says:

    I see why Martin argues his client is guilty, otherwise he has to come to terms with how utterly incompetent his representation was and how that may have resulted in an innocent man’s death. The Frontline show demonstrates to anyone that has seen it that not only is there reasonable doubt, but there is massive doubt. Willingham may have been guilty, but for the jury to only deliberate for an hour and be sure “beyond a reasonable doubt,” shows an astonishing lack ability on Martin’s part to raise any of a half dozen questions that should have a least slowed the jury down to more than an hour of deliberations. Martin should be ashamed.

  9. reposa says:

    I came across this thread as I was researching the latest developments in Texas-style Corruption and thought I would drop a line. You want to get together sometime and discuss authoritarianism and criminal justice as part of my new series “The Least Dangerous People in the World”

  10. beverly burns says:

    What is the prosecutor’s current position? Is it appointed (if so, by whom) or, elected (if so, what is the district or area)?
    Has there ever been any malpractice filed against defense attorney Martin? at least for A/C privilege being broken?
    This case was just represented on CNN in conjunction with a 30 year served innocent death penalty case in SC.
    WHY is Martin not being more clearly blamed for the laws (at the very least) that he broke?

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