Wednesday, December 2, 2009

What We Don't and Who We Ain't

Taking a break from obsessing about Adam Stoddard and Sheriff Joe and Judge Donahoe and the mysteries of Maricopa, I return now to another pair of matched obsessions.

Yes, we're back to that perhaps-bowlegged violator of legal ethics, David Martin who set out to prove his client guilty of murder and the question of just what it is that criminal defense lawyers do.


Cameron Todd Willingham
was put to death by the great state of Texas for setting his home on fire and burning up his three kids inside it. Pretty much undisputed evidence at trial indicated that the fire was arson, that Willingham didn't make much effort to get his kids out and didn't seem much interested in doing so, and that he told inconsistent stories. Oh, and there was a jailhouse snitch. On that basis, you'd have convicted him, too. You might not have sentenced him die, but the jury did. The governor signed off on that, and he was murdered by the State of Texas in 2004.

Except, of course, there's that ooopsie.

The arson evidence has been examined by a number of experts who've actually studied fire and examined how it works, folks who know the science of arson investigation rather than the old-wives-tales and received wisdom of the gee-sure-seems-like-this-must-be-how-it-works school, people who know what they're talking about. And they all say there's actually not a shred of evidence that it was arson.

The Texas Forensic Science Commission was going to hold hearings and examine the evidence when the Governor appointed a new chair of the Commission who has announced that the commission should only examine evidence in secret, that Commission members should destroy all their e-mails, and that only he should be allowed to speak with the press. He's doing all this, he assured the Texas Legislature that set up the Commission, to ensure the integrity of the investigation so that everyone can be comfortable that the Commission's conclusions, like all conclusions based on secret evidence and secret deliberations and fed to the world through a single voice are unbiased and accurate. And if you don't believe it, you can examine the evidence you won't be allowed to see.

You can read all about that stuff here and here and here and by following the links in those posts.

But there's also this. Willingham was represented at trial by a sleazy, dishonest, unethical, pond-scum, bottom-sucking lawyer. Yeah, I know all the lawyer jokes. I'm not talking about them. I'm talking about this guy.

You can read about him here and here and many other spots on the blawgoshphere. He conducted an experiment to prove his client guilty. (The experiment proved nothing, but it convinced him.) He went on national television to announce his client's guilt.

What do we do? If you've been patrolling the criminal defense blogs during the last couple of weeks you've likely seen some heated discussion about what it means to be a criminal defense lawyer. (See here and here and here, for instance.)

Well, in all those discussions of who we are and what we do, nobody mentioned the object lesson of what we don't do. David Martin is that lesson. And lest we forget it, he's at it again.

This time, it's an AP story in which he explains in detail how it is that Caeron Todd Willingham was guilty and deserved to be executed. What, is he concerned that his reputation isn't sufficiently tarnished? Is he worried that he isn't getting enough attention anymore now that the Forensic Sciences Commission won't be doing anything for months and won't ever be doing anything public? Is he disappointed that Maurice Clemmons and Tiger Woods have taken over the tabloids and that Maricopa County, Arizona rather than Corsicana, Texas is the blawgosphere's hot spot?

It's really simple when you get beyond the philosphizing and the rationalizing and the noodling around the edges of purpose and calling. When you pare it down to the basics, when you stop talking about why we do and focus on what you get to the eloquence of simplicity: We defend. Some better than others. Some with more passion. But that's the Platonic "what." We defend.

And then there's Martin.

But you know, this is a time to take off after the reporter, too. See, he talked to a few jurors who said that they still think Willingham is guilty. He concluded from that that they didn't find it relevant that there's no evidence of arson. But that's not what they said. What they said is that the only evidence they have is what was presented at trial. And from that evidence they still find him guilty.

Sure. So do I. So would you.

If you haven't seen any of the new evidence, if you don't know that the trial evidence has been discredited, it's not surprising that your views haven't changed. Why would anyone expect them to?

But the jurors aren't the lawyer. It should never have mattered to David Martin whether his client was factually guilty. He certainly shouldn't have been conducting experiments to try to prove it. And he damn well shouldn't be announcing it, now.

He didn't defend. He is who we're not and what we don't do.

The jurors? They're just ignorant. The lawyer? He's dangerous.

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