Sunday, 18 October 2009

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.


1 comment:

Anonymous said...

Can Martin be disbarred or cited by a criminal defense association or the ABA for his comments?