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Todd Willingham’s witch trial: the dreadful defense

David Martin on CNN
Judge Jackson's pentagram

Top, David Martin on CNN. “Anderson, excuse my informal attire. We’ve been out checking cows. … And tell me your question again?” Below, Willingham’s house after the fire (source). Pour lighter fluid on carpet, set it on fire, and it looks just like this picture.

…this is absurd, I wouldn’t hire a guy like this.


David Martin dismissing a scientist and the report he wrote because of the way it attacks the expert testimony that sent Martin’s client Todd Willingham to death row.

To me, he was not repentant. He had this attitude and air about him that he was wrongfully charged.


Rob Dunn, Willingham’s other attorney, on why his client was advised not to testify in his own defense.

OK, one more on the Willingham case — go back to the first post for an introduction to the case and disclaimer about how little I really know. The plot so far: Almost a year ago (!) I read David Grann’s fascinating article in the New Yorker. “Junk science” is the main subplot in the article and the main reason that the case has become so controversial, but it’s not the only thing that sent Willingham to death row, perhaps not even the main thing. What I’ve found going over the investigation and then the prosecution is that it took a lot of malicious ignorance to turn the faulty forensics into a witch trial.

The justice system is supposed to be able to cope with narrow-minded, overzealous authorities, though. That’s what the defense is for, and it doesn’t seem like Willingham’s defense has come in for its fair share of criticism. The problem is that there wasn’t much to it, so there’s not much to hang your criticism on. The fire inspectors produced page after page of old wives’ tales and other nonsense (answered years later by page after page of debunking), the prosecution added a healthy dose of rhetoric and innuendo, and the defense responded with… the babysitter.

Apparently Willingham’s defense was judged to be technically adequate during the appeals process. As I understand it, all that means is that no egregious errors were made. Willingham’s defense may have been error-free but it was still worthless — I’ll do my best to explain why in a bit. First, I want to take a quick look at another case. In an editorial I’ve brought up before, Duke law professor Jim Coleman suggests that there are effectively two justice systems in the US. If so, I think the high-functioning, principled one is epitomized by the arson case against Texas Supreme Court Justice David Medina and his wife, just like the Willingham case epitomizes the low-functioning, hypocritical one. Needless to say, Medina didn’t settle for a defense that was merely adequate. His is to Willingham’s as a tank is to a BB gun. The charges against Medina were a bit of an ironic reversal — as Gov. Rick Perry’s general counsel he had a role in denying Willingham a last-minute stay of execution. Did he give a minute’s thought to the enormous difference between the defense the soon-to-be dead man got and the one he’d insist on for himself? I doubt it.

In June 2007, a fire that started in Medina’s detached garage destroyed his house and caused significant damage to neighboring houses as well (my main source an article the Houston Chronicle ran on Jan. 18, 2008). Inspectors claimed that accelerants were used. I can’t tell how their evidence compares to the evidence against Willingham, but at least there was a plausible motive. Medina seemed to be having financial trouble and foreclosure proceedings had been initiated — a “red flag,” according to investigators. Medina’s wife Francisca was charged with arson and he was charged with fabricating evidence.

David Medina faces the press.

Texas Supreme Court Justice David Medina faces the press with attorney Terry Yates by his side.

The theatrical high point of the Medinas’ little flirtation with the wrong side of the bar was in January 2008, when a grand jury handed down indictments against the couple and the DA’s office dropped them like a hot potato. The foreman and assistant foreman of the grand jury were so mad they went to the press. The assistant’s acid comment was that “I’ve just never seen anything like the vigor with which these two defendants were defended by the Harris County District Attorney’s Office….” The foreman said, “If this was David Medina, comma, truck driver, comma, Baytown, Texas, he would have been indicted three months ago.” I think that’s a safe bet, and it’s hard to believe that the Medinas were really treated just like you and me would be.

On the other hand, connections aren’t the only thing that David Medina, Texas Supreme Court Justice, had that David Medina, truck driver, probably wouldn’t have. The real Medina also had the wherewithal to hire top-notch attorneys who in turn hired their own investigators. When Francisca Medina was re-indicted, the defense experts did their thing and the charges were dismissed.

Steve Baldassano, the assistant DA handling the case since January, says his office didn’t have sufficient evidence to prove arson. “We couldn’t eliminate an electrical malfunction,” says Baldassano. Francisca Medina’s attorney, Dick DeGuerin, says that last week he provided the DA’s office with a report prepared by independent fire experts who found that the evidence did not prove arson. “Our experts believe that it could not be called an arson fire,” DeGuerin says. Baldassano says the fire investigators DeGuerin hired are often used by the DA’s office, and “you have to keep an open mind to see if new evidence comes up.”

You have to keep an open mind to see if new evidence comes up. Of course. Who could argue with that, or with what the prosecutor, Vic Wisner, told the New York Times? “We have an ethical duty to seek justice.” And not only that, “it would be unlawful, unethical and irresponsible for me to proceed with a case that I do not think has the ability to get beyond a directed verdict of acquittal, let alone beyond a reasonable doubt.” Amazing how the principles kick in when a state supreme court justice and his high-powered attorneys come knocking at the door. It’s certainly possible that the Medinas burned down their house and their crimes were whitewashed. But as far as I can tell it’s at least as likely that it was another case of overzealous and under-informed fire inspectors. So maybe the special treatment was just that the system worked the way it’s supposed to. Or pretty much that way, except maybe just a little bit more, ummmm… efficiently.

As general counsel to Rick Perry, Medina was involved in the decision to shrug off the last-minute report from Gerald Hurst debunking the forensic evidence against Willingham. Needless to say, it’s deeply ironic that Medina’s wife was cleared of arson charges because the evidence was challenged by an independent expert hired by the defense, or as Perry would say, one of those “latter-day supposed experts.”

We worry a lot about the differential outcomes caused by inequities in the quality of schools or health care (and we should!), but does anything produce starkly differential outcomes like inequities in legal representation? (That’s not exactly a rhetorical question, because I really don’t know). Would Willingham have been convicted if he had an attorney like Dick DeGuerin and access to independent investigators and experts? If he’d gotten a “dream team” retrial like Alan Gell? I seriously doubt it. Who am I to say, of course, but surely his odds would have improved enormously. Looking in the other direction, I doubt that Medina would trust Willingham’s attorneys to defend his dog.

~   ~   ~

Willingham had two court-appointed attorneys, David Martin and Rob Dunn. I’ll concentrate on Martin, since he played the lead role. Every indication is that he and Dunn saw eye to eye, anyway. Martin has been by far the most outspoken of the two. When reporters were asking questions last fall, it seems that he was always available to badmouth his former client. In the process he made it abundantly clear that his defense of Willingham was an empty formality.

Martin wasn’t one of those infamous drunken defense attorneys of last resort, though — I wonder if it wouldn’t have been better for Willingham if he had been. Before his media blitz it was probably fair to conclude that he was basically competent and put on as good a defense as could be expected. The hackwork in the Corsicana paper makes him out to be positively heroic. Peel away the misrepresentation and it becomes clear just how unheroic he was (second prize for credulous fawning over a crappy lawyer goes to AP reporter Jeff Carlton, who in effect blames Willingham for his attorneys’ weak performance).

From his seat at the defense table, attorney David Martin’s job was to fight tooth and nail for Willingham. Once it was over, though, Martin became convinced his client was guilty. He dismisses the Beyler report as propaganda from anti-death penalty supporters.

“The Innocence Project is an absolute farce,” Martin said. “It’s a bunch of hype, in my opinion.”

The defense team couldn’t locate an arson expert back then willing to say the house fire was accidental.

“We never could find anybody that contradicted Vasquez,” Martin said.

In other interviews there’s no pretense that Martin ever believed Willingham. CNN’s Randi Kaye, for instance, reported that “Martin told me that he thought Willingham was guilty from day one.” He’s made it a point, in fact, to disabuse people of the unrealistic notion that defense attorneys believe in their clients’ innocence — “Most of the time, [our clients are] guilty as sin” is what he said to Grann.

It’s strange, though, that Martin couldn’t find a single expert to dispute the investigators’ findings. In recent years the situation is exactly the opposite — one expert after another has looked at the forensic conclusions from Willingham’s trial and declared that they are totally indefensible. It’s true that standards have evolved, but the trial happened a year before the current standards were published and they didn’t come out of nowhere.

It turns out that the explanation Jacobs elicited from Martin is disingenuous. Martin consulted exactly one outside expert. It’s not a fact he’s kept to himself, though he doesn’t seem to mind giving the impression that he searched high and low. He told Kaye that “We couldn’t find [an expert] that said it wasn’t arson,” but then explained:

As a court-appointed attorney, Martin said money was hard to come by and he only had enough funds to hire one expert. And it turned out that the expert ended up agreeing with the prosecution’s experts about the fire being arson so he never put him on the stand.

“You’re just going to abracadabra an arson investigator up to put on the stand? You have to get money,” Martin said.

The point about lack of money is well taken — that would have been an issue no matter who the attorney was.

It’s not just that Martin didn’t look very hard, though. Grann introduces him as “a former state trooper” and from the way he dealt with Willingham you’d think he was still a state trooper, and not a very good one at that. Establishing Willingham’s guilt to his own satisfaction was apparently a high priority, so he did a little science experiment. He described it during a live interview with Anderson Cooper on CNN. This was not a man preparing to “[fight] tooth and nail” for his client. It looks more like a man preparing not to fight.

COOPER: You say — you say you couldn’t find an expert to refute the testimony of the expert you…

MARTIN: Hey, let me tell you what we did. Rob Dunn and I, who tried this case with me, we went and bought carpet. We bought lighter fluid. We poured the lighter fluid on the carpet. We set it on fire. And when it finished burning, it looked just exactly like the carpet did in Todd Willingham’s house.

(It’s funny how the lead prosecuting and defense attorneys from Willingham’s trial turned into the Odd Couple when the media was all over the case last fall. They saved the priceless moments for TV. Prosecutor John Jackson went off the deep end on Nightline, and Martin played the cowboy buffoon — perhaps a drunken one — on CNN. Maybe the special strength of TV journalism is that it gives fools a chance to really be fools. And you can sure see how junk science would flourish if these guys are at all typical. Jackson, completely oblivious to the way fire burns and fluid flows, thinks Willingham used accelerant to burn the shape of a pentagram into his floor. Martin, on the other hand, goes out back like a kid playing with matches and proves to himself that burnt carpet looks like burnt carpet. In the interview he even urges folks to try it at home.)

Like any good Monday-morning quarterback, I’m convinced that the prosecutor’s case against Willingham was far more vulnerable than the trial suggests. For instance, the conflict that Craig Beyler pointed out between the eyewitness observations and the inspectors’ theory seems like something that could be presented in a compelling way to a jury. But it would be silly of me to try to convince anyone that Willingham would have walked if only the defense had made this argument or introduced that evidence. And what I think I’ve learned browsing defense attorneys’ blogs is that the way Martin approached his role and his client was hopelessly narrow. That’s a more fundamental problem, and a more interesting way to look at what went wrong.

On CNN, Martin described an approach to defense that’s purely reactive.

The role of the defense attorney is to test the state’s evidence. Vigorously cross examine their witnesses, and can they prove their case beyond a reasonable doubt? If they cannot, even if the person is guilty, he is found not guilty. That’s the role of the defense attorney.

It’s no wonder Willingham ended up with only one witness testifying on his behalf, and that was the family’s babysitter, not a fire expert or some other heavy hitter. To be fair, if the defense had gotten their way, they would have put two witnesses in front of the jury — they had an inmate lined up to refute the prosecution’s jailhouse snitch. His testimony might have had a little more impact than the babysitter’s, but not much. It was ruled out as hearsay, anyway.

In one of the indignant reactions to Martin’s CNN interview, a blogging public defender wrote that she would “never think that my job as a trial defense attorney was ONLY to challenge the state’s evidence through vigorous cross-examination.” It does seems like a losing recipe, since it lets the other side set the terms and do all the framing. Willingham’s prosecution gave the jury a compelling narrative backed by expert authority, and without a coherent alternative I don’t see how they could reject the charges. Martin picked at this and that, but according to a juror who spoke to the Dallas Morning News, it didn’t make much of an impression.

[Deputy state fire marshal Manual] Vasquez, who died in 1994, “was very important” but not the only factor in their decision, juror Dorenda Brokofsky said recently.

Jurors also were moved by the image of Willingham standing outside, near the windows of the room in which his daughters were burning up. “He didn’t do anything,” Brokofsky said.

The defense, she added, never suggested that the fire could have started accidentally. Martin did propose that 2-year-old Amber might have knocked over an oil lamp and started the fire while playing with a cigarette lighter, but “none of us could see how that would work.”

(Brokofsky was the media’s first-call juror last fall. On CNN she was the juror with doubts and then a few weeks later, in the Dallas Morning News, she was the juror who didn’t have doubts but was pressured to say she did by “some news organizations that seem to have decided that Willingham is innocent.” She did have a remarkable revelation for CNN, though — her father had been a local fire marshal and Doug Fogg, one of the fire inspectors who testified at length, was an old family friend. In the interview she said, “I told them I knew Mr. Fogg but they didn’t care.”)

It could be that effectively undermining the State’s forensics would have been enough to get Willingham acquitted. It certainly should have been enough. The prosecutor, the jurors, and others invested in the verdict have played up Willingham’s suspicious behavior as a significant factor, but that’s a little hard to take seriously because it’s done against the backdrop of wholesale doubts about the forensics. We do like a good witch trial, though, and the appeals court didn’t blink at the far-fetched and creepy suspicions that passed for evidence in this one. So a successful defense would probably have to take on the nonsense about Willingham’s behavior and the prosecution’s general effort to paint him as a monster.

On Scott Greenfield’s blog Simple Justice there’s an great post about common sense, which according to Greenfield is “one of the most insidious threats to justice imaginable.” I don’t know if the prosecution invoked common sense at Willingham’s trial, but the assumptions about his behavior have exactly the quality that Greenfield wrote about — jumping to conclusions, based on your own everyday experience, about an extraordinary situation in another person’s life. Willingham, so the story goes, “didn’t do anything” to rescue his children. He “cared more about his car than his kids.” Chances are good that you’ve never tried to march barefoot into a burning house, but of course you would if you had to, right? You most certainly wouldn’t just stand around yelling. (Shortly before his execution Willingham had this proposal for all the folks who were so quick to judge him: “Let me drop you in a burning house and you show me what you’d do.”) What I’ve noticed about these judgements is that without fail they’re about as thoughtful as a stone wall — there are other reasonable interpretations of Willingham’s behavior, but I haven’t come across a single attempt to explain or justify the one that proves him guilty.

I got to Greenfield’s post through a more recent one on Defending People, where Mark Bennett blogs about “the art and science of criminal defense trial lawyering.” He pitches his blogging as shop talk. Nonetheless I feel like I’ve learned a lot from it. This is what he says about “Fighting Back Against Common Sense.”

[T]he antidote to a specious argument in trial involves pulling back the curtain and showing the jury what your adversary is trying to do…. We don’t like to be tricked, and the “common sense” argument is—at least in Texas—a trick.

Would Willingham’s jury have seen through the trick if someone pulled back the curtain? I’d like to think so. And in general I like the idea that if a jury is treated like they have some intelligence they’ll act that way.

There’s a sharp contrast between Martin and Bennett on how to deal with clients that lie — this seems like an issue that’s good for separating the genuine article from cheap imitations. When pressed on the air about what he actually did for his client, Martin responded, “Here’s a gross misconception about… criminal defense trial lawyers. When a client tells you his story, you don’t just stupidly accept everything he says” (I guess if you can, you go out and do a stupid experiment instead). Here again Martin sounds like a cop. (*)

Bennett has the same problem, but his reaction couldn’t be more different: “Our clients lie to us; it’s our job, as often as not, to save them from themselves.” As I’ve already written, Willingham needed this kind of help badly. He told at least one big, foolish lie when investigators questioned him. People, especially when they’re under duress, lie for all sorts of reasons. They also get confused, respond to suggestion and change their minds, fish around for the “right” answer, pretend to be more certain than they are, etc. etc. The investigators who questioned Willingham had already divined their own fanciful version of events, so even if they wanted to they weren’t in any position to differentiate any shades of falsehood coming from Willingham. And apparently when Willingham told friends, family, and others about the fire, key details were inconsistent — what woke him up and what door he went out of, for example. For the authorities there was an easy explanation for every discrepancy and inconsistency — they were the fabrications and lies of a murderer. If anyone was going to pop this bubble of self-righteous common sense it was Willingham’s attorneys, but they were apparently no more inclined than anyone else to question the obvious explanation.

So, two attorneys faced with a client’s foolish lies. One’s not gonna be anyone’s dupe, the other’s not gonna let his clients shoot themselves in the foot. It’s two very different mindsets — one represents criminals and the other represents people. Reading any falsehood as a guilty lie and otherwise reducing humans beings to one-dimensional criminals is something that the cops and prosecutors can handle just fine on their own, isn’t it? Bennett’s online reviews give a good sense of how it looks to a client to be treated like a person — they note that he’s smart and forceful but also that he’s respectful, he’s available, he listens, and he explains. With that kind of representation you might come out at the other end of your ordeal talking the way Duke lacrosse player Dave Evans did about his attorneys — “They’ve become family and we owe them our lives.”

None of that for the likes of Willingham, of course. Martin did what had to be done and nothing more. And if the way he handled the plea bargain offer is any indication, Martin figured he knew best and didn’t need to do much listening. Jackson has written that Willingham rejected his generous offer “in an obscene and potentially violent confrontation with his defense counsel.” He’s made some wild claims about this incident, so who knows, but from Grann’s account, it sounds like Martin was determined to get Willingham to accept the offer, one way or another. So maybe, just maybe, there were good reasons for Willingham to be angry with an attorney who was so determined that he should admit his guilt.

According to [Willingham’s stepmother] Eugenia, Martin showed them photographs of the burned children and said, “Look what your son did. You got to talk him into pleading, or he’s going to be executed.”

Last fall, Eugenia told CNN that her son “did not have any defense. …[H]e told me his trial was a joke. That was his exact words.” He was right. Hopefully these days Martin is too busy with his cows to be messing around with criminal defense.

Maybe the communication and moral support that Bennett’s reviews mention are a luxury. But it’s not a luxury to be understood and defended as fully human. Willingham was reduced to a caricature and it cost him his life. The “proof” that he was a “monster” and a “sociopath” is a few scattered pieces of overhyped malicious nonsense, and it’s sickening that it could stand up in court. The prosecutor is still peddling outrageous theories about Willingham’s inhumanity.

Without the trial transcript I don’t know how Martin responded to the prosecutor’s evidence and insinuations, and maybe I’m not giving him enough credit for putting up a good fight in court. But in his comments to reporters, Martin has made it abundantly clear that on both the forensic evidence and Willingham’s character he was on the same page as the prosecution, and that page was the whole story. He could spout all the argumentative rhetoric he wanted but there was very little chance it would lead anywhere — he had no conception of another place to go. He and Jackson were already the Odd Couple, bickering while they herded Willingham down the chute, making sure all the formalities were observed. Martin did a fine job of serving the narrow interests of law and order, but he sure as hell never represented Todd Willingham.

A premise of the inferior justice system that Coleman wrote about is that people like Willingham don’t deserve to be represented any more than they deserve to be presumed innocent. That’s why I’m bothered by the story Jim Cooney told about how he decided to represent one of the Duke lacrosse players. It boils down to something like this: I had to represent these people! Look what pain they were in! And not only that, they were innocent! It’s as if they were doubly entitled to the defense that a rich person gets, by their pain, which proves that they’re human, and by their innocence. The ethos of criminal defense, as I understand it, is that everyone charged with a crime is entitled to a strong defense, period. And if an innocent human is most entitled then it follows, rhetorically if not logically, that a guilty monster is least entitled. It’s painfully obvious from the Willingham case how easily that premise justifies itself.

And talk about pain, what could be more painful than losing your three beautiful little girls in a fire, and then having to live with the memory that you didn’t save them? Imagine that and then compound it with the deadening pain that Cooney was so moved by, the kind that comes from being at the mercy of petty authoritarians who can make up whatever they want and call it truth. Of course I don’t know for sure whether or not Willingham felt that kind of pain any more than I know for sure that he was innocent. Nobody’s given me a good reason to doubt that he was an ordinary person with ordinary human feelings, though.

The suggestion that Willingham was anything less than a monster is deeply offensive to many of the people who sent him off to rot on death row and then on to his execution. But to them he was just a piece of trash, and they wanted to know just enough about him to throw him away and no more. Their self-serving ignorance is still paying dividends. Their camp is well stocked with contemptuous suspicion and doubt to throw back at their critics. And the people most responsible for the whole travesty — John Jackson and David Martin above all, but also Rick Perry and David Medina, and presumable some others who “have an ethical duty to seek justice” and/or serve rather than murder the public — get another ignorance dividend. They’ll never have to feel the shame. They sure earned it, though.

~   ~   ~

Ernest Willis

Ernest Willis on Hardball soon after his release in 2004

The approach to cases like Willingham’s — the ones with throw-away defendants — reminds me of the loathsome warrior’s slogan “Kill ‘em all and let God sort ‘em out.” Depending on the crime and the jurisdiction, I guess the appeals courts sometimes do a fair amount of sorting. Texas is pretty committed to the principle that the dead should stay dead, though. In North Carolina, as Joe Neff points out, it was ultimately good luck that Alan Gell was sentenced to death. It triggered a mandatory appeal, and the appeal brought in the high-powered lawyers who ultimately set him free. No such luck in Texas, at least not back in the mid-90s. Willingham’s direct appeal was filed by none other than David Martin, the same attorney who lost his case so efficiently. He didn’t even dispute the verdict, only the sentence. (I don’t know whether that was or still is a typical difference between the two states.)

Every now and then there’s a resurrection, even in Texas. Ernest Willis showed that it could happen to someone in much the same situation as Willingham but also that it was extraordinarily unlikely. For me, one of the most effective passages in Grann’s article is the brief summary of the Willis case. The parallels are remarkable, even down to weird details like moving the car and getting out with bare feet. I’ll add one more, though to some extent it’s implied already. Both men were basically outsiders. Willis most obviously — he really was just passing through when the fire happened. Willingham was known enough to be disliked. But both of them were more or less blank slates, and the authorities found it easy to project whatever they wanted on them.

Another inmate, Ernest Ray Willis, had a case that was freakishly similar to Willingham’s. In 1987, Willis had been convicted of setting a fire, in West Texas, that killed two women. Willis told investigators that he had been sleeping on a friend’s living-room couch and woke up to a house full of smoke. He said that he tried to rouse one of the women, who was sleeping in another room, but the flames and smoke drove him back, and he ran out the front door before the house exploded with flames. Witnesses maintained that Willis had acted suspiciously; he moved his car out of the yard, and didn’t show “any emotion,” as one volunteer firefighter put it. Authorities also wondered how Willis could have escaped the house without burning his bare feet. Fire investigators found pour patterns, puddle configurations, and other signs of arson. The authorities could discern no motive for the crime, but concluded that Willis, who had no previous record of violence, was a sociopath—a “demon,” as the prosecutor put it. Willis was charged with capital murder and sentenced to death.

Willis had eventually obtained what Willingham called, enviously, a “bad-ass lawyer.” James Blank, a noted patent attorney in New York, was assigned Willis’s case as part of his firm’s pro-bono work. Convinced that Willis was innocent, Blank devoted more than a dozen years to the case, and his firm spent millions, on fire consultants, private investigators, forensic experts, and the like. Willingham, meanwhile, relied on David Martin, his court-appointed lawyer, and one of Martin’s colleagues to handle his appeals. Willingham often told his parents, “You don’t know what it’s like to have lawyers who won’t even believe you’re innocent.” Like many inmates on death row, Willingham eventually filed a claim of inadequate legal representation.

Willingham did get a better lawyer, Walter Reaves. The enormous difference between him and Martin is clear in his reflections on the case and his comments about Martin’s unprofessional performance on TV. But Reaves didn’t have the deep pockets of Willis’s bad-ass lawyer’s law firm, and apparently it takes a whole lot of time and money to get resurrected in Texas. The 12-year-long pro bono effort on Willis’s behalf would have billed at something like $5M — an obscene figure. And without some luck, even that wouldn’t have been enough. They found a district court judge who was willing to reverse himself, then a federal court judge who was willing to override the obstructionist Texas Court of Criminal Appeals. In the end they even had the good fortune to find a DA, Ori White, who took his obligation to “see that justice is done” seriously and freed Willis without a retrial.

Willis somehow managed to come out of the whole thing unembittered, which is remarkable. He got a modest settlement and went on with his life. There was a nice interview and an article about him by Michael Hall in Texas Monthly last December. The backdrop was the Willingham controversy. In the interview he talked about the reforms that would be necessary to make the death penalty fair — holding prosecutors accountable and funding adequate defenses. He also talked about what a “dirty deal” the whole thing was:

Most people—they believe in the death penalty; they don’t know anything about it. But once in a while it strikes close to home. And then they realize this is really a dirty deal. Anyone can be walking down the street and be in the wrong place at the right time. And they can put—just like on mine—everything was circumstantial evidence. The district attorney gets up there and says, “This is the way we think it happened.” And that’s not the way it happened. How can a civilized country like America sentence men to death on circumstantial evidence like that? It’s not right.


(*) Martin’s attitude towards the stupid stories that clients feed to him reminds me of the inimitable RRH, an erstwhile commenter on this blog. He wrote about lawyers like himself that they’ve heard “every cockamamie story there is,” so they’ve “developed internal ‘bullshit-detectors’ that are so finely tuned that they are probably exceeded by only those of cops.” The claim is quite plausible, and in the context of the Duke lacrosse case it wasn’t a bad point. I had some fun with it.

The other reason RRH comes to mind is that I’ve come across comments he’s made here and there about the Willingham case. There’s a long exchange with Chris Halides and then a shorter one, in which he makes a wonderfully ax-grinding link between the two cases: “I can find no difference between professors who believe Cameron Willingham’s myriad of lies and those professors who believed Crystal Mangum’s myriad of lies.” And he also dropped in on Michael Landauer and his Texas Death Penalty blog (scroll down to the end of the comment thread), where he found a certain Dudley Sharp and thanked him for “fighting the good fight.” RRH’s contribution to the good fight starts with a disparaging comment about the intelligence of journalists like Landauer. Then he turns to one of the sloppiest and most one-sided articles that any journalist has written about the case, which happens to bolster his opinion. On that one he’s as unskeptical as can be. So it seems that he has a very ordinary, unidirectional, agenda-driven bullshit detector. Big surprise, huh? (back)

{ 1 } Comments

  1. Dan Weber | August 20, 2010 at 14:20 | Permalink

    As I understand it, all that means is that no egregious errors were made. Willingham’s defense may have been error-free but it was still worthless

    George Will wrote something in an essay over a decade ago that stuck with me because I’ve encountered the problem in various fields. I forget the original topic of his essay, but the kicker was “in baseball, it’s not an error if you don’t even try.”

    ~   ~   ~

    Yes, that does fit. Not trying in a capital murder case seems like it should somehow count as an error, but what do I know.

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  1. […] a comment on an older post, I came across this withering critique of Todd Willingham’s defense team. There’s an interesting comparison in there that I […]