Saturday, October 17, 2009

Selling out the client - Part IV (UPDATED with more links and title number fixed)


What's lawyer to do?

I'm a criminal defense lawyer. My clients have all violated the law or been accused of violating it or might be accused of violating it. Many have been already been convicted (I do a lot of post-trial work), others were just charged or face the possibility of being charged or seem to be under investigation.

Sometimes the crimes at issue are comparatively minor (possession of small amounts of marijuana, say). Sometimes they're horrific (rape-murders, for instance). Occasionally they make you just shake your head in wonder. (There was the guy who'd been convicted of breaking into the county jail.)

Sometimes the clients did what they're said to have done. Sometimes they did something close to it. Sometimes they're wholly innocent. To me, professionally, it doesn't matter. They all deserve the very best defense I can give them. Innocence (whatever that might be, see here) or guilt (almost as slippery a term as innocence) is simply irrelevant. My duty is to represent the client. Regardless.

But that doesn't really say much, so let me try and pin down a bit what it might involve:
  • Meeting with the client. There are three reasons: (1) to explain/answer questions about the charges or sentence and procedures ahead; (2) to get to know and learn about the client; (3) to learn from the client what she knows about the relevant events, about potential defense witnesses and about any ideas she might have.
  • Investigation. That's likely both factual and legal. What information can I get from prosecutors and police and former counsel (if any) and from witnesses and records? If there are transcripts I need to get them (or oder them if they haven't been made). What is the relevant law? Are there legal steps I should or could be taking? Are there motions to file? Is there case law that might help?
  • Action. Review the record. File the motions. Work out the theory. Prepare the questions for the jurors and witnesses. Prepare the arguments for the court and the jury. Draft the brief. Negotiate. Enter the plea. Try the case. Argue the appeal. Try to convince the judge to release the client.
  • Assist successor counsel.
The list is necessarily incomplete because each case is its own and you never know what will be necessary in any given case until you get into it. Do I need a forensic psychologist? A mining engineer? An architect? A graphic designer? Should I be consulting with other lawyers? Different stages of representation require different things. So do different cases and different clients. You don't know it all, can't know it all, until you're in the midst of it.

As the list is incomplete, so it is overinclusive. For a variety of reasons, you don't do all of these things every time. (Some are trial specific and others appeal specific; sometimes the client's knowledge of events is truly irrelevant; sometimes fact investigation simply doesn't have anything to do with the nature of the representation; you get the idea.) But it's the job. It's what a professional does. It's what I get paid to do. Within bounds, it's what the client should expect me to do.

But the client expects more and should get more. Despite the jokes, there is such a thing as legal ethics. As a lawyer, I have specific obligations to the client. I've talked about this several times including here and here and here. Here's a couple of them.
  • Avoid conflicts of interest. That means I don't represent multiple clients in the same or related cases where it's possible that the interests of one might conflict with the interests of another. It means that I look out for the interest of client A in his case even though I know that it might piss off the prosecutor who may bear a grudge when I've got another case in front of him someday and even though I know that there's some risk it will end up making law that will upset me personally and that may hurt other people I may someday defend. It means other stuff, too, but the key is this: It's about this client. Always.*
  • Guard client information. I'm bound, and rightly so, by attorney-client privilege. It comes in different forms. There's actual information we share. It's a secret. There's information I learn in confidence in the course of the representation. It's a secret. There's what I prepare for the representation, my notes and ideas and contacts with witnesses and investigators and experts and so on. All a secret. As a comment to the Ohio Rules of Professional Conduct puts it,
    A fundamental principle in the client-lawyer relationship is that, in the absence of the client’s informed consent, the lawyer must not reveal information relating to the representation.
    Why? Because the client must be free to tell me the truth knowing that I won't share it, and because what I do for the client is in service to the client and not the prosecutor or the court or the general public or the media or my family or friends who might like to hear a good story.** There are a few, narrow circumstances where I can or must reveal some of that information. Very few.
Both of these rules, like the duty to represent the client competently (an actual formal rule, though you'd think that one didn't really need to be spelled out), are ultimately about recognizing that there's a duty of loyalty to the client. You don't work against your client's interest, and you don't ever use what you learned in representing the client against your client's interest. Never ever.

The American Bar Association, no hotbed of radicalism, promulgates Standards for Criminal Justice: Defense Function that are broadly accepted as representing the basic guidelines for all attorneys practicing in the fields of criminal defense. (They have standards for the prosecution function, too.) Standard 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.
See, the duties don't end when the representation does. The lawyer may never use what one learns in representation to the disadvantage of that client. And that duty is eternal. It does not end with the client's death because the client's interests may well outstrip the client's life.

Which brings us, of course, to Cameron Todd Willingham. You know, the first person in the modern era to be, maybe, formally exonerated after execution. It may not matter much to him, but to those who care about him, it's a big deal. For consequential matters of reputation it sure matters. it is absolutely to his advantage to be recognized as innocent. Even if it won't bring him back.

And so we come to the sleazy, repulsive, deeply disturbing, offensive (help me out here folks) appearance of one David Martin, attorney, in Texas. He represented Willingham at trial.

I've never met this David Martin. (There are others, including a friend of mine, a lawyer in Ohio. It isn't you folks I'm talking about. I'm truly sorry he shares your name.) I have no reason to doubt that he can be tenacious in trial, that he's a terrific cross-examiner, that he bonds with jurors, that he wins more than his share of cases. There's no way in hell I'd hire him or recommend him. I wouldn't want, even, to share a beer with him.

There are lots of ways lawyers can and do screw their clients. They charge too much and do too little. They don't care about the cases. They stop working when the money runs dry. They're in over their heads. They're incompetent. They have terrible judgment. They get the law wrong. They drink too much. They sleep through trial. They don't prepare. They just fuck it up. I could go on. None of that's acceptable. But mostly it's not vicious. Mostly it's not intentional. Occasionally it is. Once in a while it's outright criminal.

But then there's this David Martin. The one who represented Willingham at trial. The one who went on Anderson Cooper and explained that his client, against whom there is, today, simply no credible evidence of guilt, was guilty. He explained how he knows: He poured some lighter fluid on a carpet and set it on fire. The result looked like the carpet that Willingham was said to have set on fire. And the next night, Willingham was buying a round of drinks at a bar. Besides, the state's experts were good. And a bunch of other courts reviewed the case and none said Willingham was innocent.

OK, let's take those in turn:
  • The lighter fluid experiment. Martin's no expert. His eye isn't a trained one. Even if the appearance was identical, that wouldn't prove that anyone poured lighter fluid on the carpet and set it afire, merely that the fire left the carpet looking the same way it would have if someone had done that. Are there other ways it could have ended up like that? Martin doesn't know. Wouldn't know. Couldn't know. Doesn't seem even to understand that there's stuff he doesn't know.
  • Buying drinks. Willingham may have been a terrible person. Doesn't mean he killed his kids. Even if he were happy they were dead, it doesn't mean he killed them.
  • State's experts. Let's assume they were terrific. Doesn't matter. The issue isn't whether they were honest and careful. The issue is whether they were right. We've learned stuff about how fire works since then. (Though some of the information was coming out by that time.) It doesn't take away from Copernicus to say that he was wrong to think the Sun was the center of the universe. In fact, he made a great leap in concluding the Earth was not. But there was still more to learn, and his conclusion was wrong. Science teaches us new things that changes prior understandings. It happens.
  • Reviewing courts. Two points. First, they didn't review the reviews of the fire investigation, didn't look at the science. Second, and this is a point pretty much always ignored when we're told the case was reviewed by umpteen courts and a bazillion judges, the reviews aren't about innocence. They're about legal errors at trial. They're not, emphatically not, new trials.
So we know that Martin was spouting bullshit. (He claimed to have just returned from "chasing cows," so maybe there's a reason.) We also know that at least one thing he talked about, the lighter fluid experiment, is covered by the work-product privilege. It's a secret. He had no business telling anyone. A clear violation of his ethical obligations.

And then there's the matter of going on the air to declare his client guilty. Why in the world would he do that? To garner business? Unlikely. That's not the way you attract clients. For the glory of national television? Some people just can't resist. Whatever the reason, he was wrong. Whatever he was thinking, he wasn't thinking enough. That duty of loyalty. That obligation not to disadvantage. That lack of judgment. That putting his own interests before his client's.

He's right that you don't need to believe your client innocent to provide a stellar defense. As I said, innocence is, ultimately, irrelevant to the work we do. Proclamations of guilt are something else.

It really is inexcusable. Really. Inexcusable.

Now, read what other lawyers have to say. Here and here and here and here and here (this last is Walter Reaves, Jr., Willingham's lawyer on direct appeal, and it's a link to his front page - the permalink to the particular entry is broken). It's important and telling that these are all from lawyers who do criminal defense work every day, who know what this business is, and are proud to have the chance to do it. Martin really is the outlier. For that, we can be grateful.

Also, you should go to the Texas Moratorium Network, which collects, summarizes, and offers a call to action.
* Mark Bennett's done a couple of important posts about conflict waivers recently (here and here) which touch on some of these issues.
** Scott Greenfield has a this valuable discussion of privilege in the context of blawging.


  1. Just a quick point that Martin deliberately misstated and that needs to be emphasized: the report from Craig Beyler didn't just conclude that the state's "experts" conducted a flawed investigation by modern standards, but also that they conducted a flawed one by contemporary standards. No matter what we take as the baseline, the state's fire investigators conducted themselves in an unscientific and unprofessional manner.

  2. You're right about what the report said, and about what can be concluded from it. I'm less sure that you're right about Martin intentionally getting it wrong. He might have, but the guy's so basically sloppy that he might equally have just missed it.

    Or maybe he intentionally lied. Hard to tell with the guy.

  3. Do you happen to know what law school this bozo lawyer (David Martin) went to? What percentage of his class? I ask this because another reason for his complete lack of competency might be that he never really learned anything in his law school.

  4. If attorney client privilege shields clients, it also shields attorneys and is more likely to be used by attorneys than clients especially in probate cases where former clients have deceased.

    Hence, confidentiality in such cases becomes an escape hatch for attorneys and the trustees with whom they conspire.