Flagrant Exhibit of Unprofessionalism, Disloyalty to Executed Client Adds to Nationwide Scrutiny of Willingham Execution
By Houston Criminal Attorney John Floyd and Paralegal Billy Sinclair
We’re not in the habit of criticizing fellow criminal defense attorneys, but, and unfortunately, we feel compelled to discuss the antics of Mr. David Martin, of Corsicana, Texas, recently displayed on nationwide television. Martin was Cameron Todd Willingham’s defense attorney during Willingham’s August 1992 capital murder trial. Willingham had been charged with intentionally setting fire to his Corsicana, Texas house in December 1991 which killed his three small children. Martin was appointed to defend Willingham who maintained from the outset that he was innocent of starting the fire that killed the three children.
The evidence presented at Willingham’s is listed below:
1. State arson experts testified to the effect that Willingham poured a combustible liquid on the floors throughout his house and intentionally set it ablaze which resulted in the death of his three children (twin girls aged 1 and a third daughter aged 2) by acute carbon monoxide due to smoke inhalation.
2. An expert witness specifically testified the floors, front threshold, and front concrete porch were burned, and that this can only occur when an accelerant has been purposely used.
3. Neighbors testified that Willingham “crouched down” in the front yard as the house began to smolder and refused to heed the neighbors’ pleas for him to make some effort to recuse the children.
4. Neighbors also testified that when the fire “blew out” windows in the house, Willingham “hollered about his car” and ran to move it away from the fire so that it would not be damaged.
5. A firefighter at the scene testified that Willingham was upset because his dart board had been burned in the fire.
6. Another neighbor testified that the morning after the fire, Christmas Eve, Willingham and his wife pored through the fire debris while laughing and playing loud music.
7. Witnesses testified that Willingham did not display any grief for the loss of his children either at the fire scene or at the hospital later that night.
8. A “jailhouse snitch” testified that Willingham told him that he killed his children to cover-up prior abuse of them. 1/
Absent the testimony of the state’s fire experts, there was no real evidence that Willingham committed the crime. It was the state’s expert arson testimony that convicted Willingham of capital murder and resulted in the death penalty being imposed.
As Willingham’s state and federal appeal remedies drew to a close in November 2003, his family contacted a prominent, Cambridge-educated fire scientist from Austin, Texas named Gerald Hurst. The family persuaded this expert to examine the state’s arson evidence to determine if it was reliable. Skeptical at the outset, Hurst nonetheless undertook the pro bono task of reviewing the Willingham evidence. He was astonished not only by the evidence relied upon by the state experts but the procedures they utilized to draw the conclusions they presented to the jury; namely, that the fire had been intentionally set and Willingham was the only person capable of setting it.
Three days before Willingham’s February 17, 2004 execution Willingham’s appellate attorney learned that Gerald Hurst had concluded the fire had not been intentionally set. The Hurst findings certainly lent credence to Willingham’s persistent, unwavering claims of innocence—claims which had prompted him to turn down a prosecution offer to plead guilty to a reduce charge that took the death penalty off the table. Willingham’s appellate attorney immediately sent a letter to Texas Gov. Rick Perry requesting that the execution be stayed until the Hurst report could be received and thoroughly reviewed by the governor.
Gov. Perry did not respond to the Willingham stay request. Just 88 minutes before Willingham’s execution his attorney faxed a copy of the Hurst report to the governor’s office. While the media has raised serious questions about whether the governor even read the report, Perry’s office has emphatically said that the Hurst report was thoroughly vetted between the Attorney General’s office and the governor.
In the wake of Willingham’s execution and the Hurst report, the Chicago Tribune undertook an exhaustive investigation into the arson forensic evidence that sent Willingham to his death. The Tribune secured the services of Hurst and three other prominent fire investigators—a Louisiana fire chief named Kenneth Ryland and two fire consultants named John Lentini and John DaHaan—to examine the Willingham case and determine if the arson forensic evidence used to convict him was scientifically reliable. All four experts uniformly concluded the evidence was scientifically unreliable and the procedures used to interpret that it by state experts was terribly flawed. They all formed the same opinion: Willingham did not intentionally set the house fire that killed his three children.
While some of the jurors who were either shown or read the Tribune’s findings were deeply troubled by this new evidence, Willingham’s two trial attorneys, Martin and Robert C. Dunn were not impressed. “To me, he was not repentant,” Dunn told the Tribune. “He had this attitude and air about him that he was wrongfully charged.”
Martin was far more hostile toward Willingham. Sounding more like a prosecutor than a defense attorney, Martin openly told the Tribune that he believed Willingham was guilty. “That crime scene was so replete with evidence of arson,” he said. “There was no other cause for the house catching on fire.”
The Tribune report put Willingham’s execution on the national radar of the anti-death penalty movement as a case in which it could probably be shown that an innocent man had been put to death. The New York-based Innocence Project responded quickly, securing the services of five of the nation’s most respected fire experts to also study and re-examine the arson evidence used to convict Willingham. These fire scientists subsequently issued in a 48-page report in 2006 which, like the Tribune report, concluded that none of the evidence used to convict Willingham was scientifically valid.
That same year the Innocence Project asked the Texas Forensic Science Commission to review the arson forensic evidence used to convict Willingham in light of the independent reports produced by the Chicago Tribune and the Innocence Project.
However, David Martin was not impressed with the Innocence Project’s report anymore than he had been with the Tribune report. He told the Corsicana Daily Sun in a September 6, 2009 report: “The Innocence Project is an absolute farce. It’s a bunch of hype, in my opinion.”
Fortunately, the Texas Forensic Science Commission did not share Martin’s disdain for either the Chicago Tribune or the Innocence Project’s reports. In August 2008 the commission acted upon the Innocence Project’s request and agreed to review the Willingham case. However, in an obvious effort to ensure a fair review, the commission decided to retain its own expert to examine the Willingham evidence. Last January the commission tagged a highly-respected fire scientist from Maryland named Craig Beyler to study the Willingham evidence. In August, Beyler delivered a 51-page report to the commission that was even more critical of the Willingham evidence than the Tribune and Innocence Project reports. He effectively classified the methods and procedures utilized by the state’s fire experts as “junk science.”
David Martin in the September 6th Corsicana Daily Sun article called the Beyler report “propaganda” from the anti-death penalty movement. He took particular pains to escalate his attacks on Willingham, calling him a monster without a conscience who liked to kill. The legal profession began to take notice of this unusual “defense” attorney making so much noise in the Willingham case.
The commission scheduled a hearing on the Beyler report for October 2, 2009. The commission invited Beyler and the state’s fire experts to testify at the hearing. However, just two days before the scheduled hearing Gov. Rick Perry replaced the commission’s chairman, Austin attorney Sam Bassett, with Williamson County District Attorney John Bradley, a staunch death penalty advocate, and two other commission members with new appointees with close political ties to the governor.
Barry Scheck, a co-director of the Innocence Project, called Perry’s action a “Saturday night massacre” reminiscent of the Nixon Watergate days. He charged that the governor was trying to obstruct the commission’s investigation because he did not want it established that an innocent man was executed on his watch, especially if it was ever established that the governor did not even review the Hurst report.
Gov. Perry clawed back at the media coverage in the Willingham case, adopting the Martin tactic by also calling Willingham a ‘monster” who deserved to die because there was “clear and convincing evidence” of his guilt besides the forensic evidence. Perry never elaborated on what that “clear and convincing” evidence was. Perhaps it was the testimony of that “jailhouse snitch.”
Buoyed by the governor’s fighting mood, or perhaps jealous because the governor was getting more media attention than he was, Martin then made a couple of appearances on the CNN program, 360 with Anderson Cooper. His first appearance on Cooper’s program was complete embarrassment for the legal profession. He appeared shabbily dressed wearing a “cowboy” hat two sizes too big who, as one blogger put it, appeared to be drunk. Anderson Cooper was so taken aback by Martin rants not only against the Beyler report but against Willingham as well that he told the Corsicana attorney that he sounded “more like a sheriff” than a defense attorney.
The Texas criminal defense bar went into orbit. Criminal defense attorney blogs lit up the blogosphere with blistering attacks on Martin’s character, ethics, and professional conduct. Some blogs posted disciplinary forms on line encouraging its readers to file complaints against the “traitor” attorney with the state bar. We have absolutely no reservations with any of the professional criticism leveled at Martin. His comments to the media since Willingham’s execution have been consistently despicable.
But were David Martin’s comments a violation of the attorney/client privilege as some have suggested?
The attorney/client privilege is the oldest of privileges with an ancestry dating back to the reign of Elizabeth I. 2/
The Texas Court of Criminal Appeals thirty years ago said the privilege exists to promote unrestrained communications between attorney and client without fear by the client that these privileged communications will ever be disclosed by the attorney. 3/ However, the privilege only extends to communications between the attorney and client; it does not apply to impressions, conclusions, or opinions an attorney may have about his client. 4/ This exception would apply even more so after the attorney/client relationship has been terminated, and particularly in situations where the client is dead. 5/
So the impressions and opinions David Martin has expressed publicly about his former client, Cameron Todd Willingham, though reprehensible from any professional vantage point, do not, per se, violate the attorney/client privilege set forth in Rule 503 of the Texas Rules of Evidence and Rule 1.05 of the Texas Disciplinary Rules of Professional Conduct. Opinions must always be weighed by their source, and in the Willingham case the source is a strangely calculated hickbilly attorney who, as Texans say, is “all hat and no cattle.”
But there is another troubling aspect about the things David Martin has spouted off about in media interviews concerning the Willingham case. He told Anderson Cooper that he and his co-counsel conducted an experiment that demonstrated Willingham’s guilt. They poured an accelerant on a rug and set it ablaze, and it created a burn pattern identical to the one found in the Willingham house. That test was done, apparently, in the course of investigating Willingham’s case and preparing in a possible defense. It is therefore part of the client’s confidential work product, learned during the course of representing the client, and privileged. The disclosure of its results on national television, in addition to the unprofessional antics intended to disparage a deceased client, raises a significant issue that should be addressed by the state bar.
As the client’s representative and advocate, a criminal defense lawyer has a historical duty of continued loyalty to his client and to his client’s interest. The bizarre and shameful media blitz by David Martin, which, if nothing else, only further maligned Cameron Todd Willingham after his execution, is an embarrassment to his professional reputation and to that of the criminal defense bar. One need not wonder why death penalty opponents world-wide question the ability and skill level of some of the lawyers appointed to represent those accused of capital crimes, facing the ultimate penalty of death.
1/ Willingham v. State, 897 S.W.2d 351 (Tex.Crim.App. 1995)
2/ Manning v. State, 766S.W.2d 551 (Tex.App.-Dallas 1989), aff’d, 773 S.W.2d 568 (Tex.Crim.App. 1989)
3/ Cruz v. State, 586 S.W.2d 861 (Tex.Crim.App. 1979)
4/ Manning v. State, supra.
5/ Head v. State, 2009 Tex.App. LEXIS 7628 (Tex.App-Houston [14th] Sept. 30, 2009)