Most criminal defense lawyers labor in obscurity, hoping to one day get that big case that will thrust them into the limelight and turn their small time practice into a household word. It’s not always that easy, and there’s nothing like a story in the Wall Street Journal ripping the lawyer to shreds to make one wonder why you got out of bed that day.
Before Najibullah Zazi hit the headlines as America’s newest alleged terrorist, he sought out the services of a local lawyer in Denver. He ended up talking to Art Folsom, Folsom gave Zazi and told him to give him a call if he needed anything. Who knew?
Before Najibullah Zazi hit the headlines as America’s newest alleged terrorist, he sought out the services of a local lawyer in Denver. He ended up talking to Art Folsom, Folsom gave Zazi and told him to give him a call if he needed anything. Who knew?
It was quite by accident that the biggest terrorism case in recent years landed on the doorstep of small-time defense lawyer Art Folsom, who has made a living on drug-possession and drunk-driving cases, along with the odd divorce.
Mr. Folsom represents Najibullah Zazi, accused by the U.S. government of plotting to build and detonate a lethal explosive as part of an active al Qaeda cell. Mr. Folsom, 37 years old and a graduate of the University of Denver College of Law, is up against scores of FBI agents and federal prosecutors who have worked feverishly for weeks to build the case.
Let’s face facts. Defending someone accused of terrorism is both extraordinarily unusual within the confines of criminal defense, and difficult under any circumstances. Aside from a handful of lawyers who have chosen to take up arms in a truly brutal niche, one where the rules are all different and there’s neither money nor glory to smooth over the rough spots or sweeten the pot, even the most experienced federal criminal defense lawyers have little experience with defending terrorists. My thoughts turn immediately to Josh Dratel, who took over from me as amicus chair at the NYSACDL, who has chosen the path of defending accused terrorists. It’s a brutal, and unrewarding, road.
But that hasn’t stopped others from talking about Folsom.
But that hasn’t stopped others from talking about Folsom.
Veteran criminal defense attorneys have been unusually blunt in assessing Mr. Folsom’s qualifications. “Mr. Folsom is just in over his head,” said prominent Denver defense lawyer Daniel Recht, citing Mr. Folsom’s performance so far and minimal experience in federal court.
Three experienced criminal defense lawyers on Monday questioned the strategy of the attorney for Najibullah Zazi, saying that allowing a client to talk to the FBI for 28 hours was at best “risky” and at worst would lead to a criminal charge.
“He shouldn’t have done it,” lawyer Daniel Recht said of Zazi’s attorney, Art Folsom. “He literally walked his client into prison. In fact, this fellow would not be in custody now but for the advice of his attorney.”
Recht would have advised Zazi not to talk to the FBI until Recht had a full understanding of what Zazi may have done, what he might be questioned about and what the FBI might have on wiretaps.
Well, yeah. Attorneys without federal experience often lack the appreciation of what they think of as being “cooperative” and are afraid of telling the FBI to get lost. The FBI can be quite intimidating, even to lawyers, and you’ve got have a pair to stare them down. Whether the problem was Folsom’s lack of federal experience, or that he was cowed by the agents, or both, he was certainly over his head and left Zazi dangling in the wind.
Still, Art Folsom isn’t giving up the reins.
Still, Art Folsom isn’t giving up the reins.
With a shrug and a drag on his cigarette, Mr. Folsom begs to differ. “I’ve been practicing criminal defense for 10 years,” he says. “This is an enormous case, but when you get down to the core principles, it’s about criminal defense.”
Folsom has at least brought in J. Michael Dowling, who has “25 years of experience in drug trials and other federal cases,” though notably not handling terrorism cases. But that doesn’t mean that Folsom is relinquishing his spotlight,
But Mr. Folsom remains lead counsel. TV crews stake out his office, in a building that also houses a massage therapist and a jewelry shop. After hearings, he is the one who faces the cameras.
The lure of the klieg lights is particularly hard to ignore the first time around, but as he will find out very quickly, they are extremely hot. It’s very easy to get burned.
Then there’s the question of money, since few accused terrorists also happen to possess much by way of personal wealth.
Then there’s the question of money, since few accused terrorists also happen to possess much by way of personal wealth.
Amid the hubbub, Mr. Folsom has his own legal problems. He was charged this summer with possession of less than an ounce of marijuana, a petty offense that carries a small fine. He says the pot belonged to a friend. A pretrial conference is set for mid-October.Handling a major media case is all-consuming. Just fielding the telephone calls is a full-time job. But when the client is broke, and the car payments keep coming, and the desire to continue, whether altruistic or addiction to the limelight, takes hold, it’s a problem. In the worst of all possible worlds, Folsom is financially devastated by the case, loses whatever other cases he might have or get for lack of time, and is ultimately excoriated in the media for his inept representation. Maybe, if he plays his cards really poorly, he becomes the goat for ineffective assistance of counsel and loses his license.
Mr. Folsom expects the Zazi case to take up much of his time, though his client has no money to pay him. That’s a bit tough, he says: “I’d like to be able to keep making my car payments.”
And this has nothing to do with the client, Najibullah Zazi, who will not doubt feel the fullest weight of the government come crashing down upon him in one of the most intense, and difficult, cases a defendant can face. Terrorism defense really isn’t the province of amateurs. Even with vast federal experience, the demands of a terrorism defense are different, and experience in this very small niche is incredibly important if you expect to have any chance at success. It is not, as Folsom says, just a criminal defense at its core. No drug dealer faces the state secrets doctrine.
For all those young and “small time” lawyers hoping to catch the big one, be careful what you wish for. You just might be the next Art Folsom.
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I was horrified when I read the article yesterday. However, I don’t frame it as an attorneys who is NOW over his head. I suspect that I’d be horrified as the multiple issues and strategies he was missing on his various other cases. Competency, when it is possessed, shows at EVERY level of case. Parallels abound, particularly to the lawyer who represents the mother in the Caylee Anthony trial.
NEWS FLASH! I just received a summons to serve as a juror in San Francisco. Multiple courses I’m teaching at the moment (one of which is a third year law course, “Jury Law & Strategies) aside, I’m not passing the experience up, right up until I’m summarily dismissed … stay tuned.
Folsom’s conduct seems suspect, but his big-time brethern’s opining seems a little self-serving. “Should have hired me, Mr. Z.,” they seem to all but stay. “There’s still time, so sign on ….”
I would love to be selected for a jury. LOVE TO. Alas, I’ve never made it out of the starting gate.
I smelled the sour grapes too, and wonder how wonderful a job they would do given their lack of experience in terrorist defense. And notice how Recht isn’t involved, yet still managed to get his name all over the paper? Now there’s a pro.
The DA had to use a peremptory on me on a murder trial last time I got to the box.
Now contemplating what to wear, in light of the strange state laws on juror attire I’ve been twittering about. How about this one? Jurors must wearing clothing “that enhances the dignity of the court.” Hmmm.
Scott, thanks for your take on this. I read that WSJ piece and thought well, who’s next? I was hoping someone in the blogosphere would chime in, and soon.
Has anyone offered to help the guy out, or is everyone going to sit around and talk about how they could have done it better? Whether he’s good or bad, at least step up and volunteer to help answer phones and e-mails. Something. Sheesh.
Business casual is such a relative term.
You’re right. While there’s always the question of whether their help would be accepted, if you’re going to be critical, then you ought to offer something constructive.
Ahhh, Mr. Folsom. One of the rules of life: “Unless you really, REALLY know what you are doing, never be low bidder to construct two nuclear submarines.”
Whew. I’m putting the Hawaiian shirt back on.
As an unwilling, erstwhile consumer of terrorist services, I kind of like the notion of a real terrorist having chosen only technically competent counsel. (I’m not saying Zazi is a real terrorist; I dunno, although I’ve got some suspicions,.being a suspicious kind of guy, and all.) Individuals with human DNA are entitled to choose to get competent defense, but if individuals with human DNA who are actually terrorists — as it appears that Zazi could possibly be, maybe? — choose to hire lawyers who make bad tactical decisions, I’m not sure what the downside is, except for the guest of honor at the trial. It may be bad workmanship on the part of the lawyer to let his client talk to the FBI without a thorough woodshedding in advance (and probably then, too) but, seriously: in what way, if any, is the polity ill-served if a real terrorist who has actually committed criminal naughtinesses chooses a lawyer who still has that new car smell?
2 or 3 days after September 1, 1996 my son, then just starting 10th grade, (now an attorney with NYC LAS) woke me up early – around 6:30 AM. He had been watching local news and heard a story about what was being reported as a ‘double homicide’ here in Greene County. The Pataki Death Penalty had just become effective on September 1. I was the Public Defender in the County then. My first call was to the State Police Senior Investigator to try to get the facts straight, including whether or not there was a suspect and/or an arrest. Then to the DA, at home, to find out what he knew about the case, reminding him that this was a potential ‘death penalty’ case. At 8:30 I reached the Capital Defender’s office in Albany, reporting the news that there might be the 1st DP case in NYS down in Greene County. We worked together for the rest of the day.
The best thing an attorney can do for a client, or a potential client, is to get the best attorney’s involved. The 15 minutes of fame just aren’t worth that ‘fame’ turning into ‘infamy’ because your skill and experience on that particular day are just not up to what needs to be done for the client. (Several months later I went to ‘death camp’, became ‘qualified’ to represent those charged with crimes eligible for the DP – actually did so, until the DA de-certified the case). OH the case – turned out to be a murder and then a clear case of ‘self-defense” for the 2nd homicide. The 2nd deceased was the murderer in the first case. – NO DP.
There’s no shame in not being a master – we were all there once, but this fellow actually hired a publicist – for himself! C’mon; that’s disgusting!
At least he hired a pro where it counted.