Najibullah Zazi's Legal Representation

Mohammed Zazi, father of Najibullah Zazi, is now represented by the Federal Defender's office in Colorado. Colorado has excellent federal defenders and he will get quality representation.

What about Najibullah? He told the court today he wanted to stay with Arthur Folsom, the lawyer he met for the first time on Tuesday of last week, who took him to the FBI office on Wednesday, had him waive his right to remain silent, provide fingerprint, DNA and handwriting samples and for the next three days released personal details about his client's life and activities to the media. Folsom and the PR rep he (presumably) hired didn't stop talking until Saturday, when things went south. As a result of the chain of events Folsom set in motion, Zazi, his father and a third man in New York are now charged with making false statements to federal officials, an offense that carries up to 8 years in prison. And the feds have a wealth of information about Zazi, his family and a lot of other people it would have taken them months or years, if ever, to gather. [More...]

Folsom is not a federal criminal defense lawyer and he has no experience in terrorism cases. He chose a strategy for his client that has had profoundly negative consequences. Without knowing a shred of evidence the feds had compiled against his client, or even whether his 24 year old client whom he met a day earlier was telling him the truth, he trotted him down to the feds and in front of the media. [More...]

Zazi will have a detention hearing on Thursday. If he is ordered detained, he will stay in jail for the duration of the case. Given that the feds are still building their case, hoping to add terror charges, Zazi could be in jail for a year or more prior to trial.

The Government already has filed a notice that it intends to introduce or use evidence obtained via FISA warrants. Defending Zazi is likely to be a full-time job for many months -- and most likely will require more than one lawyer, as well as paralegals and experts in everything from handwriting and forensic disciplines to wiretapping, FISA, classified information procedures and terrorism. It will cost a small fortune to do it right.

Zazi is an airport van driver coming out of bankruptcy. He can't possibly have the funds for both counsel and the necessary team of experts.

Perhaps Folsom could bring in an experienced lawyer as co-counsel. Even if finances weren't an issue, I think that ship has sailed. What experienced federal defense attorney in private practice would want to sign on with Folsom now that the case has reached this point? (Update: Folsom's PR rep now says he's in discussions with private counsel to "expand the legal team.")

The Federal Defender's office can only take one defendant in a case, given the potential for conflict of interest. Now that it has been appointed for Zazi's father, it can't also represent Zazi. Zazi's only option, other than staying with Folsom, is to request appointed counsel under the Criminal Justice Act. There are 150 Colorado lawyers on the CJA panel, with varying degrees of federal criminal experience (although all have more than Folsom.) Given a case of this magnitude, the Court would not only appoint one who is highly qualified, but upon reeasonable request, would appoint more than one. In addition to counsel, the court would authorize payment for experts, private investigators, paraglegals, etc.

The statement by Folsom's PR spokesperson today that Folsom's inexperience in federal cases doesn't mean much because this region doesn't have many lawyers experienced in dealing with federal courts and the FBI, is just not true. This is hardly the District's first terror case and a number of lawyers here specialize in federal criminal defense. In addition, many excellent private attorneys accept a limited number of CJA cases. I can think of a dozen or more qualified counsel off the top of my head.

I think it's only a matter of time before Folsom drops out of the case. I hope it's not too late for whoever succeeds him to repair some of the damage. Zazi is entitled to the presumption of innocence. There's not been a shred of evidence tested in court that he's involved in terrorism. Yet, he's quickly losing the presumption in the court of public opinion.

By the time the Court gets around to imposing a restriction on extra-judicial comments in the case, the image of Zazi as the guy the feds say is "the real deal" who "lied to the FBI" about bomb-making notes on his computer will be cemented in the public's consciousness. If and when the charges are upgraded to include terror offenses, it may be very difficult to find an impartial jury.

Folsom seems like a pleasant fellow whose heart is in the right place. But he needs to ask himself whether he has the skills and experience necessary to help his client in what promises to be a bruising battle ahead. I think he will come to the right decision.

Update: The AP reports Folsom is now assembling an experienced team of counsel But, the case may be transferred to New York.

[Our prior coverage of the Zazi case is assembled here.]

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    i guess i just assumed, (none / 0) (#1)
    by cpinva on Tue Sep 22, 2009 at 02:47:26 AM EST
    much like a cpa, lawyer's were required to determine if they had the requisite skills and knowledge, before accepting a client. if so, i have to wonder if mr. folsom isn't in violation of the code of ethics, because he has clearly demonstrated his total lack of both, with regards to mr. zazi.

    No, he's not in violation (none / 0) (#2)
    by Jeralyn on Tue Sep 22, 2009 at 03:09:23 AM EST
    it's more a matter of the case getting far bigger than he first assumed. At the point he knows he's in over his head, he should rethink his involvement.

    Obviously he has no business being the lead on a federal criminal case. Certainly not at the outset, but I hope he at least is a criminal defense lawyer.

    Maybe he is some Gerry Spence with a jury, but we're a long way from juries. Someone who knows the ends and outs of dealing with the FBI and US Attorneys seems essential at this stage. Unless there are no federal crimes investigated and tried in Denver, obviously there were lawyers who were actually prepared for this.

    I dunno, seems like he imagined this as some PR coup for his practice and, he may certainly get publicity. Perhaps not the kind he was looking for.

    Suffice it to say that I know I have no basis for criticizing his actual work, but I do know that you do. I also know that you are not quick to criticize anyone for anything. So your strong criticisms here are rather startling.

    Makes me think that Folsom was about as bad as you have seen in this case.


    He splits his practice... (none / 0) (#4)
    by magster on Tue Sep 22, 2009 at 08:39:49 AM EST
    ...between criminal and divorce/custody cases.

    Hmmm (5.00 / 2) (#5)
    by Big Tent Democrat on Tue Sep 22, 2009 at 08:47:36 AM EST
    I hope he does not sell insurance on the side.

    This does not sound good.


    Reminds me of Ginsberg on behalf (none / 0) (#7)
    by oculus on Tue Sep 22, 2009 at 10:10:38 AM EST
    of Lewinsky.  He is a plaintiffs' attorney in civil litigation.  Much more dire consequences here though.

    To answer BTD (none / 0) (#10)
    by Jeralyn on Tue Sep 22, 2009 at 11:34:03 AM EST
    " I also know that you are not quick to criticize anyone for anything. "

    You are right, especially another lawyer and on a case in my District. But I've been biting my tongue for five days. The odd strategy is the reason I have followed the case so closely.

    I waited to write this until I saw his experience and strategy were making their way to the media. (and even then I discounted one blowhard's view entirely). Normally I would say "well we don't the details of the case so we shouldn't jump to conclusions." But, the lawyer had no details of the FBI's case, no deal for immunity (at least on paper which is all that counts) and only denials from his client when he chose the strategy, so that rule just doesn't apply.

    A search of PACER I did days ago failed to produce his name as an attorney in any federal case. But still I kept quiet, criticizing only the strategy, since I assumed he was at least being advised in the background by an experienced lawyer.

    When I ran into him yesterday (almost literally, the TL kid was with me, we had just finished  a hearing in our case (we have different defendants), I practically collided with him in the clerk's office.  He really seems like a nice guy, I almost feel sorry for him, but then I think of his client and his client's father who have been so adversely impacted by his rush-in while knowing nothing strategy.

    The point of almost every one of my posts to date, if anyone goes back and reads them all, has been to warn about voluntarily submitting for interviews with law enforcement and trying to sell your case for innocence in the media.


    Not really. (none / 0) (#6)
    by scribe on Tue Sep 22, 2009 at 09:15:12 AM EST
    The point is, when you pass the bar you are presumed to be capable of undserstanding the issues and procedures in the relevant state's court.  When you get admitted to the federal District Court, you are required to (a) read their rules and (b) sign a statment under oath that you have done so and will abirde by them.

    The problem is that there is no substitute for experience.  This becomes more and more true the greater the stakes.  In the state where I practice, lawyers do residential real estate closings.  One of the first things new lawyers get handed at most small firms is to close a sale of a home (or, maybe, it's one of the first matters they bring in).  A lot of the time, the young lawyer is flailing around doing a lot more work than is needed, and this is only cured with experience.

    The same obtains in any other area of practice.  (Which, BTW, is why we call it "practice".)  Even though I've been practicing for going on 20 years, almost all of my practice has been in civil litigation, and most of that in state courts.  Despite having what I (and most other lawyers I know) think are pretty good skills, I would not dare to undertake a complicated criminal defense case such as Zazi is tangled up in.  There are too many pitfalls for the unwary.  

    Stuff like which experts are "good" and which have the repute of whores.  When the prosecutor is leading you down a garden path - a path existing because of obscure-to-the-outsider caselaw.  What sort of software to use to read and digest all the electronic discovery you have dumped on you.  Where to buy that software and how to use it.

    You name it.

    I have no doubt that Mr. Folsom is a good, honest and trustworthy guy, and a competent attorney within the sphere of his experience.  It's just that his sphere of experience does not seem to include complicated (or even simple) federal criminal defense.  Some of the lawyers I know who do real estate and divorces don't even have a PACER account and, as a result, could not file a paper in federal court (though being admitted to the relevant bar) if they wanted to.  (I remember having to try to teach one how, once.  After explaining it would take two weeks to set up that lawyer's account, it wound up initially as "I'll write it, and you file it, scribe." and then the colleague just settled before having to file anything.)  Folsom probably (and I speculate here) either did some legal work for Zazi or someone Zazi knew in the past and, when trouble raised its head, Zazi went to the lawyer he knew, or who was recommended to him.  

    And when the FBI saw Folsom coming in with Zazi, they took the gentle "just a few questions to clear some things up" approach, and drew them in for days and days of questioning.

    At this juncture, Folsom should tell his client to shut up and get someone who knows their way around the federal courthouse on board, so Folsom can get out of the way.


    Perhaps the "someone who knew Folsom" (none / 0) (#8)
    by oculus on Tue Sep 22, 2009 at 10:14:17 AM EST
    was Zazi's al Qeada connection?  (I read a lot of John La Carre!)

    Or maybe it was just (none / 0) (#9)
    by scribe on Tue Sep 22, 2009 at 11:04:59 AM EST
    one of the other airport shuttle drivers.

    Or maybe the Yellow Pages.


    I'd guess (none / 0) (#11)
    by Jeralyn on Tue Sep 22, 2009 at 11:36:24 AM EST
    a friend he had helped on a traffic or DUI matter. I read he was referred by friends.

    my point (none / 0) (#12)
    by cpinva on Tue Sep 22, 2009 at 03:31:40 PM EST
    exactly scribe. knowing the basic rules isn't the same as having the requisite experience. recognizing one's limitations is the single best way to keep your client out of trouble.

    oh, btw, all experts are "whores", some just more highly compensated than others.

    No, not all experts are. (none / 0) (#13)
    by scribe on Tue Sep 22, 2009 at 04:40:04 PM EST
    Many of them are highly professional, experienced people who know more about their particular field than you could possibly imagine.

    What most people do not get their heads around are the two prongs of experting.  First, they are there to help the jury understand complicated topics - be they medical, technical, or whatever.  By way of example, a colleague once had an expert in a technical/engineering case who'd had a major part in flight testing all sorts of aircraft - US and captured - during and after WWII.  During a break, he related getting a vigorous ride in the back seat of a captured Me262 trainer flown by a test pilot dissatisfied with some calculation or other.  And he was able to relate that experience to the case at hand.  ("You could tell it had been built by slave labor.  You could see out the bottom where they'd left parts out, on purpose.")He had over 30 major patents to his credit and was a natural-born engineer who, more importantly, could  and did make complicated or subtle engineering concepts understandable to anyone.  

    The second prong of expertizing - and even more subtle - is that there is no such thing as a "True" opinion or a "False" opinion, whether rendered by an expert or not.  There are only opinions which the hearer accepts or rejects.  That is because, as a definitional matter, an opinion is the product of the opiner taking in a mass of information and experience and weighing each individual fact or piece of information or experience and placing it in a context.  The selection (or rejection) of facts, the various weights assigned to each of them, and the context itself are each personal to the person rendering the opinion.  They form a sort of algorithm.  If that algorithm is too far outside the norm - a smell test, for lack of a better term - the hearer is likely to reject the opinion, but that rejection will be not because the opinion is false, but rather because it seems implausible to the hearer.

    There are many experts who will render a faovrable opinion and use the same boilerplate language time and again.  That might be perfectly acceptable in the context - if roughly the same set of facts present themselves.  As long as they are intellectually rigorous and honest about it, that does not make them whores.