Never Smear Your Own Client, Not Even In Death

My initial reaction was "why?"  Why would he do this?  Why would he say this?  Of the many things that have passed my consciousness over the years, few are as inexplicable as this.  Like anyone else, it caused me to strain to find an answer, but nothing came.

I'm talking about the interview by Anderson Cooper of David Martin, the attorney who tried the Cameron Todd Willingham case, which Mark Bennett posted at Defending People.  Given the intense pressure that arose from the overwhelming post mortem evidence that Willingham was innocent, coupled with the additional pressure arising from Texas Governor Rick Perry's scuttling of the his Forensic Science Commission's personnel on the eve of its hearings, there was certainly an abundance of interest in what happened at trial.

But as far as I've heard, no one has suggested that it was Martin's fault that Willingham was convicted and sentenced to death.  Maybe I'm not close enough to the local scuttlebutt to know what's being whispered around the ranch, but no one has openly challenged Martin as a flaming incompetent, personally responsible for the death of a human being.

So why would Martin do this?



Let's assume, for the sake of argument, that Martin has no grossly improper motive, like he's been promised a judgeship by Perry if he does everything in his power to undermine the evidence of Willingham's innocence.  If Martin truly believes what he's saying to be true, his statements are the most irresponsible, unethical, improper I have ever heard from the mouth of a criminal defense lawyer.  Outrageously wrong. Utterly disgraceful. 

He may not be tainted by the fact of Willingham's conviction, but he should be forever tainted by his overt effort to argue the guilt of his client. Worst still, if that's possible, is his apparent use of confidential information to bolster his claim.  Willingham may be dead, but his privileged communications are buried with him.  They aren't Martin's to reveal at his convenience.

Mom's old adage, if you have nothing nice to say, say nothing at all, applies.  Martin is under no duty to come forward to argue Willingham's innocence, especially if he doesn't believe it to be true.  But under no circumstances should he come forward to argue Willingham's guilt.  Don't want to argue innocence?  Fine, then stay on the ranch and off TV.  Keep your mouth shut and say nothing. That's a perfectly reasonable thing to do.  

Bennett ponders whether Martin was enjoying his 15 minutes of fame, his opportunity to go on Anderson Cooper and be the Big Man.  It's clear from the interview that Martin is inadept at television interviews, given his slow, long-winded, pedantic speech pattern, refusal to give the floor to the host and background muttering of "this is absurd."  That would explain why Martin, with nothing good to say about his client, agreed to go on air, but it offers no explanation for his egregious breach of trust. 

There is no ethical duty of perpetual loyalty to one's client.  A lawyer need not argue the client's innocence after his representation has ended.  But that doesn't mean that the alternative is to smear his client, to argue his guilt, to expose his confidences, either.  If Martin so desperately wanted his moment in the sun, then his options were limited to speaking in his client's best interest or discussing issues surrounding the present circumstances.  There was no option of exposing communications, investigations, thoughts that existed solely within the defense.  Martin had no right to offer that up in exchange for the opportunity to go on TV in his Texas rancher hat and tout himself at the expense of his client.

If I was forced to explain Martin, the best I could offer is that he now fears that Willingham's death is on his shoulders for his failure as a lawyer to have adequately represented his client.  Even though the fingers aren't point at him, he believes in the back of his mind that he failed miserably.  Perhaps he anticipates that eventually the fingers will come around to him, point at him, blame him, for his incompetence.  Perhaps he knows something we don't, that there's good reason for the fingers to point at him.  Perhaps he is responsible for the death of Cameron Todd Willingham.  This is merely his pre-emptive way of deflecting responsibility.

Even now, Martin's description of the "scientific method" the defense team used to determine the accuracy of the arson claim rings ridiculous.  They bought lighter fluid, burned a carpet, and it looked just like the carpet in Willingham's home?  That's what he claims is proof that his client was guilty?  Now that's absurd.

While no one can make a criminal defense lawyer believe in the innocence of his client, or chose to argue it after his representation has ended, he can be taken to task for doing the unthinkable, the outrageous and the facially wrong.  David Martin's comments are a disgrace of the lowest order.  And, for good measure, just as criminal defense lawyers aren't expected to believe in the innocence of every client, they similarly aren't endowed with the superhuman ability to know when a person who professes innocence is in fact guilty. 

I may lack an explanation for what drove David Martin to condemn his own client publicly, particularly in the face of overwhelming evidence of innocence, but I have no doubt that his statements on Anderson Cooper 360 are some of the most despicable I've ever heard from the mouth of a lawyer.  Never, but never, smear your own client. 

 del.icio.us  Stumbleupon  Technorati  Digg 

Posted by SHG at 10/17/2009 4:47 AM
Categories: uncategorized
 
Trackbacks
Trackback specific URL for this entry
  • No trackbacks exist for this entry.
Comments
Display comments as (Linear | Threaded)

  • 10/17/2009 6:40 AM Tracey from Australia wrote:
    Looking in from the outside I must say I was speechless when I saw that interview. God help ANYONE who has that person as their attorney. How could you ever trust him?

    Surely there are some sort of Code of Ethics that attorneys are meant to abide by?
    Reply to this
    1. 10/17/2009 7:09 AM SHG wrote:
      There is, and it precludes the attorney from disclosing client confidences, even beyond the death of the defendant.  It's especially egregious when it happens after the death of a defendant, when he's no longer there to challenge the lawyer's outrageous statements.
      Reply to this
  • 10/17/2009 7:48 AM Gary Carson wrote:
    I'm a 5th generation Texan and can assure you that anyone that appears in a TV studio with a cowboy hat does not do so because he's been "out chasing cows".

    If no one has been accusing him of incompetent defense then they should be doing so.

    I'm not sure if he's a wanna be cowboy or a wanna be lawyer. Probably both.
    Reply to this
    1. 10/17/2009 8:29 AM SHG wrote:
      I wondered about that, being that it doesn't take a whole lot to remove one's hat before grabbing a seat in front of the cameras.  But knowing how sensitive Texans can be, I figured I would leave that call to someone more attuned to rancher fashion. Thanks for filling the gap.
      Reply to this
      1. 10/17/2009 1:15 PM Jdog wrote:
        Basically, the cowboy hat is a Texas yarmulke; all you know about somebody wearing it is that he's a frum Texan.
        Reply to this
        1. 10/20/2009 4:38 PM Sojourner wrote:
          True fact, especially when said cowboy hat is worn indoors during a nationally-televised interview, rather than outside providing highly practical sun protection, or at the local honky tonk.
          Reply to this
  • 10/17/2009 12:06 PM John Lentini wrote:
    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 ignitable liquid in the open, you can make that same pattern without an ignitable liquid inside a compartment. Patterns produced during full room involvement can look exactly like patterns produced by an ignitable 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.
    Reply to this
    1. 10/17/2009 12:13 PM SHG wrote:
      Thanks for the details.
      Reply to this
  • 10/17/2009 7:32 PM Kelvin Phillips wrote:
    I have read in another blog that David Martin was so incompetent at defending Willingham, that he is no longer allowed to try capital cases. Is there any way to confirm or deny this? If true, this could be why Martin made the statements he did.
    Reply to this
  • 10/18/2009 8:58 AM Sojourner wrote:
    David Martin is a former state trooper. I think his behavior exemplifies the brokenness of the Texas 'justice' system.
    Reply to this
  • 10/20/2009 1:25 PM Bill Golodner wrote:
    I hope Mr. Martin's cattle business is thriving, because he should never get another client who would want his representation.
    I was shocked to see such behavior. I was a police detective for over twenty (20) years and I currently conduct many criminal defense investigations. I provide my clients with expert, professional service and when all is said and done, I finish the case and that is that. I do not discuss my client with anyone without his/her approval.
    There is no investigator/client privilege per se, however, I do have a retainer agreement with the client's attorney which does constitute "attorney work product" and that is an important part of the case.

    All of that being said, I have "Honesty & Integrity" and those are
    more important than 10 minutes on TV.
    Reply to this
  • 10/20/2009 2:52 PM Mark Bennett wrote:
    When a man tells you he has honesty and integrity, you'd better keep a hand on your wallet.
    Reply to this
  • 10/20/2009 3:45 PM Bill Golodner wrote:
    You may be referencing Emerson's quote; "The more he spoke of his honor, the faster we counted our spoons." I find your attempt at publicly humiliating me offensive and it shows how small you really are! One should keep their comments on topic. You Sir! Don't know me, however, we all know you, a small insignificant man, who because he went to law school feels he has the right to shoot off his mouth at will. You are probly the type of attorney who would speak ill of his client as Martin did.
    My integrity is beyond reproach and I expect a public apology in this forum.
    Reply to this
    1. 10/20/2009 3:53 PM SHG wrote:
      I think Bennett's comment wasn't intended to suggest anything about you, and your initial comment reflected your deep concern for integrity.  It was more a joking way of saying that you had no need to tell anyone of your honor and integrity, we could see it in what you said.

      Sometimes, a bit of snarkiness comes off wrong in comments, He's a damn good lawyer, and like you, deeply concerned with serving his clients.  

      And you have clearly demonstrated your integrity by expressing the importance of maintaining  client confidentiality (and noting the very important point of the PI working under the lawyer to enjoy his privilege) and your disdain for Martin's outrageous conduct.
      Reply to this
  • 10/20/2009 3:52 PM Sojourner wrote:
    Mr. Golodner, I'm impressed with the Emerson quote. That said, Mr. Bennett is known as a highly ethical lawyer who would NEVER do what Mr. Martin did to Mr. Willingham. He also has a dry, cynical sense of humor that many enjoy. Don't take it so personally - life's too short.
    Reply to this
    1. 10/20/2009 4:06 PM Bill Golodner wrote:
      If this was my misunderstanding, then let me take the high road and apologize to Mr. Bennett. I may have shot from the hip (pun intended) too quickly. As a detective with the NYPD I prided myself on having a thick skin. I guess I've been retired a while and my skin has become a bit thin.
      Reply to this
      1. 10/20/2009 9:02 PM Mark Bennett wrote:
        I accept your apology. Thank you.

        You really should work on that thin-skin thing—when you take offense so readily, you seem to have a guilty conscience.
        Reply to this
      2. 10/21/2009 8:53 AM Jdog wrote:
        One of the more frustrating things that can happen to somebody who -- legitimately or otherwise -- [prizes | prides himself] on his integrity is to have that questioned. Alas, probably the single most counterproductive thing to do when that happens is to simply assert it. Neither Richard Nixon nor Mother Teresa could make "I am not a crook" work.
        Reply to this
        1. 10/21/2009 9:00 AM Mark Bennett wrote:
          Also counterproductive is calling your own integrity into doubt by asserting it when it hasn't been questioned.
          Reply to this
          1. 10/21/2009 9:17 AM Jdog wrote:
            How dare you say that to me! You're questioning my integrity!
            Reply to this
            1. 10/21/2009 9:28 AM SHG wrote:
              Just get a hotel room already, will ya?
              Reply to this
Leave a comment

Submitted comments will be subject to moderation before being displayed.

 Enter the above security code (required)

 Name (required)

 Email (will not be published) (required)

 Website

Your comment is 0 characters limited to 3000 characters.