David Martin, Disgrace to the Legal Profession

by publius

Via Ta-Nehisi, I saw this amazing Anderson Cooper interview of Todd Willingham's defense attorney, David Martin.  It's enough to make you literally nauseous.  Remember that Martin's zealous defense consisted of getting the babysitter to testify:

The defense had tried to find a fire expert to counter Vasquez and Fogg’s testimony, but the one they contacted concurred with the prosecution. Ultimately, the defense presented only one witness to the jury: the Willinghams’ babysitter, who said she could not believe that Willingham could have killed his children.

In the CNN interview below, he explains that he thought Willingham was guilty because Martin himself had done a backyard science experiment and poured lighter fluid on a piece of carpet and burned it.  To noted forensic expert Martin, it looked the same as the carpet in the Willingham case. 

And so even though he has no expertise in any of this stuff, he's now on TV bashing the report of real scientists (the ones he ignored), and claiming Willingham is clearly guilty.  And remember, he was Willingham's own attorney.

He's so defensive and obnoxious about it that it's pretty clear he's protesting too much.  I'd probably feel that way too if my malpractice had caused an innocent person to die.  And hey, at least he stayed awake during trial.

Anyway, here you go people -- this is the face of criminal defense in Texas.  Remember this guy next time you hear Justice Scalia and pals talk about how competent our underfunded state court criminal justice systems are.  Remember that an entire jurisprudence of deference to state criminal courts is constructed on the foundation of David Martin.

Also, everyone should read this entire post from Burnt Orange Report, which rounds up various disgusted reactions from Texas attorneys.  It also suggests that Martin may be violating his continuing ethical and professional obligations to Willingham.

Comments

[Point]

I'm speechless -- just about.

I mean, this guy -- the man's defense attorney -- is convinced of his client's guilt because -- drumroll --

A burnt carpet looks like a burnt carpet*.

*Yeah, I'm paraphrasing. But not by much.

[Crashman06]

This just reinforces one of my most strongly held beliefs: Never trust a man who goes out in public wearing a cowboy hat.

[Point]

Herostratus

I'm pretty sure your last post is a violation of OW's civility rules; at any rate, it says nothing helpful here.

[Jesurgislac]

We're not allowed to say bad stuff about Texas though?

Texas, yes, especially if you live there.
Rick Perry, yes, because he's a public figure who does not comment here.
Texans, no: some of them comment here. *waves at McKinney*

[Point]

I'm pretty sure we've got some regular commenters from Texas -- so, no.

[Point]

And Jes beat me to it >/

[Julian]

I recently finished Letters To A Young Lawyer, I liked it a lot, though Dershowitz's observations might be old news to lawyers around here (but IANAL). I liked his argument/reminder that our criminal justice system is not purely adversarial, and that prosecutors have great power and, lest we forget our Spiderman, great responsibility to help innocent people avoid conviction. To paraphrase Claude Raines, I am shocked, SHOCKED, to find corruption going on in a politicized criminal process.

[Davebo]

Who could possibly hate Austin? I mean Dallas or Houston? Sure. But Austin?

[McKinneyTexas]

Hey ya'll (Jes, Point, I am tipping my 10 gallon hat your way as I scrape the bull dung off of my boots--just got in from shoeing a mule, plowing the back 40 and punching some dogies, not to mention dropping various and sundry clients in the grease).

Martin was out of bounds. The work product privilege does survive the litigation, it belongs to the client, not to the attorney and it can't be disclosed. Doing so violated Texas' Code of Professional Responsibility. Martin was taking a lot of flak nationally for botching a defense, so there is an understandable tendency toward defensiveness. But, being a lawyer isn't always easy and sometimes you just have to say "I gave it my best shot, a bunch of appellate courts agreed the trial was fair, I thought the trial was fair and beyond that, no comment." Having had to report, more than once (but not too often) my own mistakes to a client, I know it isn't easy.

I think one bit of nuance is worth noting--my take on the CNN interview was that the science changed shortly after the trial. Kind of hard to blame Martin if that is the case. It is the appellate lawyer's job to flip a bad verdict based on new evidence, but doing so is tough. This is why our rules on new trials, among many others, need to be changed.

A side note about lawyers: Every lawyer makes mistakes. In fully litigated matters, it's seldom just one or two. I always look back at things left undone, things done in-artfully, etc. The definition of a good lawyer is someone who fixes his/her own mistakes before the client takes on water.

[Jay S]

he's now on TV bashing the report of real scientists (the ones he ignored),

Whoa Nellie, where's the evidence that he had access to these reports at trial? He consulted a second opinion and got a confirmation of the prosecution expert. This was the consensus expert opinion at that time. It's not clear to me that it is still not fire "expert" consensus in Texas. I would guess that overturning long held beliefs is a tough sell.

Even his appellate lawyer didn't get a contradictory expert opinion until the 11th hour.

Where is the malpractice you allude to. Yeah he did his own tests, and they were hardly exhaustive, but he didn't follow the two expert opinions blindly. Am I missing something?

[publius]

For one, he didn't seem to go looking very hard. When the first expert doesn't work, find another - esp. in a capital case that turns on forensics. Plus, only the babysitter was a witness.

But the real ethical violation here is bashing your client and revealing privileged information. And just on a human level, when the science changed, he should have continued being advocate.

I bet a decent amount of money he's trying to get some type of appointment or some other type of benefit.

As for making fun of TX, I think the posting rules (as I interpret them) apply more scrutiny, if you will, to attacks on individuals here. But attacks on public figures or states, etc. are less of a concern. though I should say that i disagree with the stereotype (which our friend mcK disproves). texas is eventually going to turn blue. There are just going to be a lot of executions between now and then.

[McKinneyTexas]

Texas will never be blue, Publius. Maybe a bit purplish, but not blue. Just isn't going to happen.

Davebo, while Dallas may technically, in a geographical sense, be in Texas, it really isn't Texas.

[byrningman]

This is so pitiful, words fail me.

[Catsy]

McK: Texas will never be blue, Publius. Maybe a bit purplish, but not blue. Just isn't going to happen.

With respect to your insights as a local, I think you're underestimating the degree to which the GOP has become toxic to Hispanics, and the demographic trends which (especially in the SW) make this a much bigger deal in 10, 15 years than it might now seem.

publius: It's enough to make you literally nauseous.

Nauseated. :)

And yes. This entire case nauseates me. I would shed no tears if it eventually ends up being the death of our system of institutionalized murder.

[McKinneyTexas]

Plus, only the babysitter was a witness.

Another obscure point occurs to me: criticizing a criminal defense lawyer for not calling enough witnesses is problematical. There may not be any potential witnesses who don't have their own credibility issues, i.e. prior criminal conviction which are admissible to show lack of credibility, or who actually have something relevant to say, such as an alibi witness or self defense, neither of which were at play in the Willingham case.

Martin is out of bounds for violating his duties as a lawyer. Whether he put up an objectively competent defense is a separate matter. Experts don't grow on trees and they are subject to cross examination. Publius implies that an expert who could have credibly and persuasively made a difference was somewhere on Martin's radar screen--that fact has not been established. Moreover, putting up a witness, particularly an expert, has a very real downside. They almost always have their own damn paper trail and can usually be crossed effectively unless they are on very firm ground.

I've won a fair number of cases by touching up adverse experts to the point where the other side's case simply lost any credibility. I've largely avoided that by not hiring experts unless absolutely required. As it happens, I start a trial next week where cause and origin of a fire is somewhat disputed. My expert is pretty solid (actual physical evidence recovered from the point of origin was tested in competent lab and found to contain materials susceptible to spontaneous combustion) and the other side has hired a crappy expert, which is the only kind available given the facts. The point here is that there are plenty of cases where a competent expert proves the other side's case and an incompetent expert makes your bad case even worse.

[McKinneyTexas]

Catsy: you have a point about changing demographics. Where I come down is this: the rising Hispanic population, socially conservative and more entrepreneurial than many realize, will broaden the Republican and independent base. Statewide elections will be more contestable. The color will be purplish, but more red than blue.

[Jay S]

Here's thehttp://www.newyorker.com/reporting/2009/09/07/090907fa_fact_grann?printable=true> New Yorker article for folks who would like to refresh their memory.

The defendant was hardly sympathetic, and there appeared to be some change in the story of the witnesses after arson suspicions were raise. Getting good witnesses for the defense seemed difficult. As to a fire expert, the work that was being done to refute fire lore was happening in another state at roughly the same time, if I have the time line straight.

The ethics violation may be real, and Martin may well have aspirations that are well served by his protests, but that is separate from the trial itself.

[BFR]

McKinney: "...the rising Hispanic population, socially conservative and more entrepreneurial than many realize, will broaden the Republican and independent base."

I'm skeptical. Yes, hispanics tend to be more conservative but outside of the Cuban exiles, they've been a core constituency of the Democratic party for some time. Also, as their numbers increase relative to the population as a whole, the GOP is going to have a harder time muzzling white resentment elements within their coalition.

If hispanics start considering shifting their allegiance to the GOP, there will be plenty of Dobbses & Tancredos to remind them why they are Democrats in the first place.

[McKinneyTexas]

BFR--Bexar County (San Antonio) is heavily Hispanic and routinely elects Republicans as well as Democrats. Hispanics preponderate in favor of Democrats, but far less so than African-Americans.

The Pat Buchanan wing of the Republican party could marginalize Republicans forever. If I were a Progressive, I'm not so sure I'd want that. Push enough Republicans and Independents into the Democratic Party and watch it move center-right, fiscally, socially and otherwise.

[Jay C]

@ McKinneYTexas

Hey ya'll (Jes, Point, I am tipping my 10 gallon hat your way as I scrape the bull dung off of my boots--just got in from shoeing a mule, plowing the back 40 and punching some dogies, not to mention dropping various and sundry clients in the grease).

C'mon McK: you know we sophisticated, intellectual commentators here at ObWings wouldn't hold such simplistic stereotypes like that about Texans ... no way!

We just assumed you spent the time you could spare from shafting clients in polishing the steerhorns on your big Cadillac, touring your oil wells and browsing the Neiman Marcus catalogue.... ;)

But more seriously, I think the problems that the Willingham case underline (dueling expertises, bad "science" in courts, etc.) seem to aggravated from having taken place in Texas: a State that is generally perceived as having a far more "frontier" attitude towards death-penalty cases than the American norm (which you, of course, would know better about that we). The take from Texas seems to be that defenses like that supplied by Mr. Martin are the usual for indigent defendants; that the state's prosecutorial apparatus is way more defensive and dismissive of criticism of capital-punishment "mistakes"; and that there is a general speediness about the process there that makes perceived "errors" like the Willingham execution even more egregious.

To be sure, the only way to absolutely insure against erroneous exceutions is to abolish the death penalty: but in Texas, how likely a probablility is THAT?

[McKinneyTexas]

To be sure, the only way to absolutely insure against erroneous exceutions is to abolish the death penalty: but in Texas, how likely a probablility is THAT?

Not likely at all. Not gonna happen. Not now, not in twenty years. You'll see gay marriage first. The best you can hope for is meaningful oversight. It could take as many as a half dozen Willinghams to force a real change. That's what is pathetic. It's one thing to defend the DP as a legitimate punishment for capital crimes--which I do--and another to look the other way when the system fails or when it needs improvement, as it surely does.

[BFR]

McKinney: "BFR--Bexar County (San Antonio) is heavily Hispanic and routinely elects Republicans as well as Democrats. Hispanics preponderate in favor of Democrats, but far less so than African-Americans."

I'm less familiar with TX than CA where I grew up but I think there were areas in CA that were formerly as you describe, back when CA was competitive, before the CA GOP went full lunatic xenophobe. Not sure if the TX GOP would ever fall apart like that.

[Point]

"The Pat Buchanan wing of the Republican party could marginalize Republicans forever. If I were a Progressive, I'm not so sure I'd want that. Push enough Republicans and Independents into the Democratic Party and watch it move center-right, fiscally, socially and otherwise."

Maybe not necessarily fiscally, but socially could be possible.

More generally, isn't there an LBJ style liberlism left in TX? And what of Houston, which has one of the largest LGBT communities in the country, and may well have one of the first gay mayors of a big city?

[Mike Schilling]

Real question, not rhetorical: to what extent is the problem that Martin didn't have the resources to defend the case properly: e.g, to search for further experts until he could find one (or a few) that would be both helpful to his client and credible.

[Ben Alpers]

I'm glad y'all are focusing on Texas rather than looking north to my adoptive state of Oklahoma. Norman's a perfectly pleasant place to live, but it ain't Austin. And the chances of this state getting meaningfully purplish, let alone blue, anytime in the next quarter century are similar to the chances that the Thunder will win the NBA Championship this year. No wait. That Thunder championship season is actually probably a better bet.

All that being said, I hope we don't get in the habit of denouncing entire states on ObWi. Even in Oklahoma there are plenty of good people (as well as many who do not yet know their right hand from their left, and many beasts as well, as God explains to Jonah when He spares Nineveh ;-) ).

[Carleton Wu]

Experts don't grow on trees and they are subject to cross examination. Publius implies that an expert who could have credibly and persuasively made a difference was somewhere on Martin's radar screen--that fact has not been established.

From 50k ft, the fact that a widely-respected expert thinks that the evidence runs so completely against the charge of arson as to be laughable suggests that experts were to be had at the time with that opinion. But that's just inference.

But this thread does give me a change to bring up The Wu Solution to substandard public defense- eliminate private criminal defense. If everyone has to depend on the public defenders system, it'll get *good* *damn* *quick*.
Besides which, money ought not buy justice (or the avoidance of it). Im fine with money buying all kinds of stuff, but a better chance of not getting convicted does not seem like something that should be for sale.

[Bernard Yomtov]

Ben Alpers,

Old joke:

How to find Texas: Go west until everything smells like s**t. Then you're in Oklahoma. Take a left and go until you step in it, and you're in Texas.

[byrningman]

McKinney, I'm curious -- how do you go about convincing a jury that your expert is more competent and credible than the other side's expert witness?

Just curious, if you cared to explain quickly, thanks.

[Michael Cain]

Can we kick Texas out of the union yet? If Rick Perry wants to secede, let him. People from Texas are stupid rednecks. I hate the way they talk; I hate the way they look. What's with the stupid cowboy hats? And I especially hate people who say, "Not all Texans are bad. Look at Austin." Austin sucks. Austin is a stupid redneck college town. Texans can go to hell.

Texas may be at one end of the spectrum, but between the Missouri River and a few counties along the Pacific Coast, hats and boots and bolo ties are part of the culture. A goodly chunk of NYC's electricity derives from Texas natural gas and Wyoming coal. When you let Texas go, are you going to let them take Houston and its refineries with them? Eaten any bread products made with wheat flour lately? Chances are good it's based on crops grown in the Missouri-to-almost-the-West-Coast stretch, and trust me, trying to grow wheat in Indiana sucks. Death penalty? Most of those states don't use it as much as Texas, but running against it costs a lot of votes. People point at the growing Hispanic population? Lots of Hispanic cowboy hats and boots in that part of the country.

Take away the Dem Senators in North Dakota, Montana, Colorado, and New Mexico and the D majority in the Senate is suddenly 58-52 the other way. If the Dems are indeed running a big tent operation -- and I think they are trying to -- then there has to be room for folks in cowboy hats and boots.

[TexasToast]

I am amused by the anti-Texas stereotype. It reveals a profound ignorance of Texas history and culture. Texas law is profoundly liberal at its core. Community property, homestead, independent probate administration, and a history of anti-bank, anti-insurance, anti-big business statutory schemes place Texas as clearly in the Jeffersonian/Jacksonian tradition - a tradition equally as American as any other American subculture. Dont forget that the President of the Civil Rights Act and the Voting Rights Act was from Texas and was far closer to Texas roots than the descendants of Prescott Bush - Senator from Connecticut.

[Josh E.]

Yes, Texans like their individual property rights, and "profoundly liberal" Texas is essentially indistinguishable from every other confederate/solid-south state. Texas-bashing is stupid but let's not pretend it's Vermont.

[Jay S]

From 50k ft, the fact that a widely-respected expert thinks that the evidence runs so completely against the charge of arson as to be laughable suggests that experts were to be had at the time with that opinion. But that's just inference.

I'm sorry, but I don't think that expert witness was actually available at the time of the trial, and would not be considered expert in that state at that time.

IANAL, but publius has made claims that I think might be libelous. The lawyer did what he could with the facts he had. He may be an ass for the things he is saying now, but given the case he was handed, I don't think he was guilty of malpractice.

We should be addressing the "expert" witness issue and what we accept as evidence. This is the crux of where this case breaks down.

[Slartibartfast]

Then you're in Oklahoma.

You're going to hit rural Indiana before you get as far West as Oklahoma.

"Liquid manure" or "liquid fertilizer" smells, not coincidentally, just like a very crowded pigpen.

[Hartmut]

Maybe Texas should be renamed Augias. That would cover both the literal and the metaphorical stink ;-)
Opponents could be informed that it is also Latin for 'you may profit'
(for the pedants: that would be 'augeas' but why spoil the joke?)

[Hartmut]

Should have looked it up first. In English the king is Augeas, not Augias, so the joke works perfectly.

[von]

Martin is out of bounds for violating his duties as a lawyer. Whether he put up an objectively competent defense is a separate matter. Experts don't grow on trees and they are subject to cross examination. Publius implies that an expert who could have credibly and persuasively made a difference was somewhere on Martin's radar screen--that fact has not been established. Moreover, putting up a witness, particularly an expert, has a very real downside. They almost always have their own damn paper trail and can usually be crossed effectively unless they are on very firm ground.

I agree with McKinney, here. Trials boil down to who the jury believe. The facts are secondary. Hiring an expert just to have an expert mouth the lawyer's words is, in many cases, worse than having no expert at all.

Publius is entitled to his opinion, but my opinion is that we don't have enough evidence to judge the defense this harshly.

[von]

I should add that I'm just as disgusted as Publius by Martin's CNN appearance, however.

[McKinneyTexas]

byrningman--essentially expert testimony boils down to three elements: qualifications, factual basis and opinion(s) based thereon.

In a typical, noncontroversial case the expert is qualified (e.g. a surgeon), has actually treated the patient, conducts standard of care diagnostic studies, diagnoses a condition caused by the event made the basis of the suit, treats the condition conservatively without satisfactory result, operates and the patient improves. This is a pretty clean case and the prudent defense lawyer takes the evidence as he/she finds it and simply crosses the doctor on his/her brilliance in successfully treating his patient, making him/her well and capping future damages at virtually nothing.

Problematical experts are those who make their living in the courtroom. They are hired to fill gaps in a parties claim or defense. They engage in significant leaps in logic, supplying their own self-declared expertise as the gap-filler. They are highly selective in which facts they accept as true for their basis and they generally have basic but not specialized qualifications.

Typical means for chopping up bad experts is to pose hypothetical questions with facts other than those relied on by the expert but which you think the jury is likely to believe. In my case next week, my fire guy opines that rags soaked in oil-based wood stain, known to spontaneously combust, were placed on a trash pile located in a particular room which then spontaneously combusted causing roughly half a mil in property damage. His opinion is based on the fact that other rags were recovered from the trash pile, tested in a laboratory and found to contain the offending material.

Enemy expert hangs his hat on cigaratte butts found in a different room where no fire occurred. He opines that since there were cigarettes in Room A, there might have been cigarettes in Room B, where the fire started, and these cigarettes might have started the fire. On cross examination in pretrial deposition, Doofus conceded he had no actual evidence of cigarettes in Room B and no evidence of the combustion factors necessary to produce a cigarette-induced fire.

Assuming the judge doesn't boot Doofus for an inadequate basis and an opinion that is speculative rather than based on probability, I expect the jury to make the right decision. They usually do.

[chmood]

Just for the sake of 'putting the boot in': I LOVE Texas. Even *scary* Texans are a helluva lot nicer than most people elsewhere (especially the Georgia rednecks I grew up around).

Just stay away from the Houston police. 'Specially if you're 'Spanic.

[russell]

He may be an ass for the things he is saying now

I'll give Martin credit for defending a guy he thought was guilty based on the available evidence at the time. I'll even give him credit for giving it his best effort. I'll even say that his experiment with the carpet and the lighter fluid was a good-faith attempt to understand the evidence.

The point Cooper was making was that *in light of information that had come to light since the trial*, it appeared that Willingham may have been innocent.

Martin steadfastly refused to concede even the possibility that that might be so. I understand that he was in the hot seat, but Willingham is dead.

Yes, he is an ass, in good and full measure. To the degree that Perry is taking actions to avoid having to officially acknowledge that Willingham may have been innocent, he is an ass as well.

Here is my bold statement: Willingham was not the first and will likely not be the last innocent person to be executed. There is no way to make the legal process infallible. If you want to support the death penalty, IMVHO you need to sign up for that as part of the deal.

For me personally, that takes the death penalty off the table as an option. There is no remedy we can offer someone who has been killed, and I don't see that the death penalty offers any real benefit above life imprisonment other than satisfying a sense of vengeance. I'd prefer that our criminal justice system be more about justice than vengeance.

My two cents.

As a lifelong northeastern urbanite I confess that Texas culture strikes me as kinda odd, and Texan self-regard seems out of scale to the inherent merits of the place.

I don't really see what the big deal is about.

But I'm sure Texans find us Yankees pretty odd as well. You say po-tay-to, I say po-tah-to.

Idiots and fine people, both, wear all kinds of hats.

[McKinneyTexas]

Russell--agreed on all points accept one, which I would modify. I don't know that Willingham has been exonerated. Maybe he has, but I don't know that. For me, it's enough that that there may have been an objective reasonable doubt as to his guilt and that fact, if it exists, needs to be fully explored. Perry is a coward for not allowing the investigation to go forward. That Perry is shortstopping a second look at the evidence suggests, but does not prove, he is afraid of what the second look might show. Martin is a dumbass for not keeping his mouth shut. Unprofessional, as well. The two are not the same.

[ajay]

Ethical question for any lawyers - it was my impression that, if your client tells you he's guilty, you aren't allowed to defend him if he then pleads not guilty in court. Is the same true if your client says he's not guilty but you are convinced he is? Is it your duty to persuade him to plead guilty, or can you, ethically, defend a not-guilty plea that you don't personally believe?

[carolita]

This 2004 Chicago Tribune article is very thorough, and gives the names of many witnesses that Willingham's lawyers could have called, but chose not to, as well as highlighting the known connections between jurors and the State arson inveistigators, which should have been used to disqualify those jurors.

In 2004 the Chicago Tribune carried a lengthy article, Man executed on disproved forensics, which includes a point-by-point rebuttal of the evidence used in the trial. This article quotes a Willingham defense attorney, David Martin, as saying he believed Willingham was guilty. It also quotes his other defense attorney, Robert Dunn:

"To me, he was not repentant," said Robert C. Dunn, one of Willingham's trial lawyers. "He had this attitude and air about him that he was wrongfully charged."

Imagine that! He was not repentant. Just because he happened to be innocent. And NEITHER of his attorneys even considered that he might be innocent. No wonder they didn’t bother to put on a defense. Think about that. The man was on trial for his life, and neither of his attorneys even considered that he might be innocent.

Several commenters in Scott Cobb’s diaries on Daily Kos have noted that David Martin is a former Fort Worth police officer and was in the Texas State Police. Apparently Robert Dunn was also a police investigator. I don’t know if that influenced their decisions, but it is apparent that they were unclear as to the duties of a defense attorney.

This quote is from a diary on Daily Kos outlining some of these issues, and the role Rick Perry's lawyer, David Medina, played in this mess.

[Slartibartfast]

I'll give Martin credit for defending a guy he thought was guilty based on the available evidence at the time. I'll even give him credit for giving it his best effort. I'll even say that his experiment with the carpet and the lighter fluid was a good-faith attempt to understand the evidence.

The way I see it, Martin had decided that Willingham was guilty in advance of the original trial, and is still determined to hold to that position now. The burnt-carpet experiment was confirmation bias masquerading as science.

[russell]

slarti, I suspect you are correct. I was just trying to give it the most favorable reading I could.

[Slartibartfast]

I have no quarrel with that, russell; just noting how it looked to me.

[McKinneyTexas]

Ajay--a lawyer is ethically obligated to defend a guilty person. There is nothing wrong with requiring the state to prove guilt beyond a reasonable doubt. We have an adversary system. A lawyer is required to advocate his/her client's position, whether the lawyer believes it or not. A lawyer may disbelieve a client, yet argue the client's testimony as true. A lawyer may not allow his client to take the stand and tell a lie. It's a bit of a fine line: I may not believe a client, but if the client says "X", I'll stand behind it and do my best to persuade a jury. I'll also inform the client, in detail and in writing, that he/she is likely to lose and should consider compromising. If the client tells me "X" and then decides "X" won't win the case and wants to shift to "Y", he/she either stays with the original story or gets another lawyer. Don't think there aren't some gray areas and don't think that some lawyers don't cross the line. Most of the ones I know stay in bounds, but not all.

[Jay S]

Russell, I think confirmation bias is nearly the opposite of bad faith. You have so much faith that you close your eyes to other possibilities.

In fact Martin seems to regard the original fire investigator in this case as a personal friend, and having some of the criticism of him sound like the investigator was acting in bad faith makes him angry and defensive. This is something we have some experience with here.

Assuming bad faith, instead of bad science inflames rather than informs.

[ajay]

McKinney - thanks, that was very clear.

Presumably, too, as in plea bargaining, there's no ethical problem the other way: a lawyer can ethically encourage a client whom he believes to be innocent to plead guilty?

[McKinneyTexas]

a lawyer can ethically encourage a client whom he believes to be innocent to plead guilty?

I started to say "Never!", but then thought better of it. Keeping in mind I am a civil trial lawyer, not a criminal defense lawyer, my sense is that there are times when, circumstantially, an innocent person faces a lot of risk by taking his/her case to a jury and if a decent deal can be worked out, taking that deal may be in the client's best interests. It's a tough, tough call under those circumstances. My inclination would be to try the case. I do recall handling a small criminal matter pro bono where the charges were bullshit. I went to court three times and asked for a trial date so I could try it, win it and be done. On the last appearance, the state offered to take a nolo plea and a $100 fine on a misdemeanor. The client took the deal for fear of getting convicted. Ultimately, it's the client's call.

[Jay S]

Here is a copy of the http://www.docstoc.com/docs/document-preview.aspx?doc_id=10401390>Beyler report Martin refers to. In the related documents tab is the City of Corsica's response.

The evidence of bias Martin sees on page 49 is colorful language (mysticism) used to describe the colorful language (fire talks) used by the state fire expert at trial. I'd say the court room usage was more unprofessional, and Martin is looking for something to hang his bias claim. Confirmation bias again, perhaps.

I did think the conclusions about not reflecting contemporary (1991) standards was unsupported in the Beyler report, and the city response lists that as well.

[rdldot]

Russell, I just want to thank you for being here. And for speaking for me (even though it's not deliberate on your part) so that I can just hang back. There are times when you're not on a post and I think 'Where is Russell? - He needs to get in here'. Please don't ever leave OBWI.

[russell]

rdldot, thanks for the kind words.

[The Crafty Trilobite]

Re the ethics of presenting false testimony, there's also the interesting epistimological question of when exactly we "know" that someone is lying. If I have a client whose story seems unlikely, I don't know he's lying. Even if his story happens to conflict with all the other evidence, that does not -- quite -- mean I know for a fact that he is lying. And if I don't know he is lying, I can present his testimony.

I might very well advise him strongly not to testify, because nobody else will believe him either, but it is ultimately up to him whether to take a deal or gamble. The same is true if he happens to be telling the truth but has no other evidence for it.

Here, it sounds like Martin privately concluded his client was probably guilty, which would be fine if that were all, and Martin maybe therefore failed to put on as strong a defense as he could, which would not be fine. Trying to justify himself afterwards like this is pretty awful.