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.
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