Najibullah Zazi Arrives At MDC Brooklyn; Colo. Lawyer To Represent Him in NY Case

Najibullah Zazi, who was ordered detained pending trial in NY and flown to NY today, will be housed in solitary confinement in a maximum security wing at the Metropolitan Detention Center in Brooklyn.

His lawyer, Arthur Folsom, who has never defended a client in federal court and who allowed him to be questioned for 23 hours by the FBI last week, told the Court in Denver today that he and another Colorado lawyer (who practiced in New York more than 20 years ago) will continue to represent Zazi in the NY case -- the case in which he is charged with a terrorism offense carrying a potential life penalty. The Magistrate Judge in Colorado confirmed this with Zazi, asking him whether he wanted a public defender to be appointed in NY. Zazi declined, stating he intended to keep his present counsel.

So Arthur Folsom and his new co-counsel will be traveling back and forth to NY to represent Zazi. (Only the co-counsel will appear Tuesday, presumably because it will take longer than that for Folsom to submit all the paperwork to get admitted to practice in federal court in NY or even admitted pro hac vice.) [More...]

A few questions arise from these new developments: Who is funding Zazi's defense? While by now I probably shouldn't be surprised at anything Arthur Folsom does, I can't believe he'd represent Zazi, who recently declared bankruptcy, particularly in a major terror case, on his own dime.

Aside from legal fees, as I asked the other day, who will help Folsom pay the cost of experts needed to assist the defense? Handwriting computer, fingerprint, explosive and terrorism experts will be required, at a minimum. Most lawyers would also use a jury selection expert.

Zazi's father has the public defender, so his family isn't footing the bill.

Which brings me to the next question: Does Arthur Folsom know something we don't know? Is the NY case against Zazi a phony case, meaning a plea deal already has been worked out but is being kept under wraps while Zazi continues cooperating? Is putting Zazi in solitary in a maximum security unit meant to give his associates a false sense of security? Arthur Folsom may be inexperienced and Zazi may have played him like a fiddle, but he isn't stupid. Are Folsom, Zazi and the FBI playing out a charade for the public?

Or, is another scenario at work? If Zazi really was planning on setting off a bomb, why did he go to the media to proclaim his innocence immediately upon his return from NY, even before he met with Folsom? Was he making sure his associates would know the plan had been discovered and alterations needed to be made or a Plan B put into effect? Could he be a minor player taking the fall, hoping the distraction, first of his innocence protestation and then his ultimate Indictment, would allow the major players to keep plotting and succeed?

In other words, did Zazi play Folsom and the FBI rather than the other way around? Was his real intent to distract the FBI by feeding them false information and sending them on wild goose chases?

Zazi is presumed innocent. For all the allegations swirling around, the Government has not proven anything yet. An indictment is only an accusation, it is not proof. The Government submitted evidence by proffer today -- a narrative by the prosecutor -- not witness testimony. It presented its theory that Zazi intended to set off a bomb in NY on the anniversary of 9/11.

As we all know from the umpteen DNA exonerations we've seen in rape and murder cases, when an innocent person has been wrongly charged or convicted, the result is the true perpetrator remains at large, able to strike again. I hope the Zazi case isn't a variation of this -- that while he's soaking up all the attention and resources of law enforcement, other bad apples are lurking in the shadows, shielded by his coat-tails, proceeding with some really dangerous plot.

It's far too soon to congratulate anyone in this case. Or to conclude anything -- and that includes deciding whether Zazi is a bomb-making terrorist, whether his lawyer is as clueless as he has acted and been portrayed and whether the feds really stopped a terror attack.

[Our prior coverage of the Zazi case is assembled here.]
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    What a damned mess. (none / 0) (#1)
    by scribe on Fri Sep 25, 2009 at 08:37:28 PM EST
    I can tell you this - speaking as one who has taken the cases of people who could not afford to pay and stuck it out for those clients to get even moderately good results - the idea in Mr. Folsom's head of spending $1000 every time he needs to come from Denver to NYC for a motion hearing or a status conference is going to get real tired, really fast.  (Yes, figure a good $1000 between plane fare and airport taxi and accommodation and logistics.  Let's not even think about transcript costs....)

    And that $1000 is going to come out of his pocket.

    I don't know what Colorado lawyers are getting for divorces and DWI defenses and house closings, but I can tell you that every time Mr. Folsom takes the entire fee from one of those cases and dumps it into Zazi's case he's going to say "what the hell was I thinking?  That money could be going to ..." whatever.  And when he starts having to spend whole days reading transcripts and document discovery - when he could make a couple grand putting a divorce through in the morning and defending a bar fight in the afternoon - and realizes he's foregoing all those fees while reading those transcripts, he's going to be sorely tempted to go out and do the paying work, rather than the Zazi work.

    That's human nature and lawyers are as subject to it as anyone.

    I don't know who's playing whom here, save for the government thus far successfully playing the public to clamor for more surveillance and more police-state tactics and more so-called PATRIOT Acts.  But I do know that, if asked, last week I would have told Mr. Zazi to take a good long look at the outdoors and to breathe in that fresh air quite deeply, because the way his case is going, he ain't never going to get to do that again.

    Mr. Folsom may be able to appear (none / 0) (#6)
    by oculus on Sat Sep 26, 2009 at 02:11:37 AM EST
    telephonically, assuming the court even permits hrgs. on motions.  

    The FBI will probably pay Folsom's expenses. (none / 0) (#9)
    by Jacob Freeze on Sat Sep 26, 2009 at 01:24:02 PM EST
    They already owe him for selling out his client.

    If Folsom were litigating a case against me like he defends Zazi, I would buy the S.O.B. a beach house.


    Just on the surface (none / 0) (#2)
    by NealB on Fri Sep 25, 2009 at 09:13:55 PM EST
    if Zazi was a real threat I doubt he'd be in the news. I mean, if he was a real threat, wouldn't he be in some cell in some unknown location being tortured for further information?

    Zazi. What kind of name is that?

    He found it in the Metro (none / 0) (#8)
    by Spamlet on Sat Sep 26, 2009 at 11:13:10 AM EST
    Zazi. What kind of name is that?

    Even with private counsel, (none / 0) (#3)
    by Peter G on Fri Sep 25, 2009 at 09:51:58 PM EST
    all your experts and expenses can be CJA-funded, on ex parte defense motion to the judge, if the client personally is eligible, 18 U.S.C. section 3006A(e)(1), as Zazi appears to be.  That provision won't cover counsel's airfare commuting from Denver, though.  That part makes no sense to me.  Access to counsel for a person detained in the SHU ("special housing unit") at MDC-Brooklyn is gawd-awful enough when you can hop the subway to get there.  Arranging adequate time for attorney-client consultation with a lawyer from 2000 miles away seems impossible to me.  Meanwhile, the client is being observed (and recorded) nearly 24/7.  The report of the Dept of Justice Office of Inspector General on the treatment of post-9/11 detainees as MDC Brooklyn was, shall we say, unflattering.

    that's true but it doesn't seem to fit (none / 0) (#4)
    by Jeralyn on Fri Sep 25, 2009 at 10:05:56 PM EST
    this case. Folsom also said they are expecting to add a local NY lawyer to the team. That's 3 lawyers and Folsom's PR person so far, I'm not seeing the indigency. I don't think a judge would authorize experts for a client with private counsel while the lawyers are paying big dollars to fly themselves back and forth -- not without a serious inquiry into the alleged indigency. I also think the Government would start looking for a way to inquire as to the source of legal fees. The fact that so far they are not makes me curious.

    To elaborate a bit. (none / 0) (#7)
    by scribe on Sat Sep 26, 2009 at 04:00:33 AM EST
    (sorry for the length of this comment....)

    When I pulled the idea of "just the cost of the airfare" up and used that in my earlier comment at 1 on this thread, I was using it to highlight the deep financial hole into which Mr. Folsom has tossed himself.  I did not even take the time to write about how utterly impossible (as a practical matter) it would be for Folsom to be representing Zazi.  Conculting with the client, meeting with the client, going over the defenses, going over the discovery - all those things will wind up being well-nigh impossible.

    But my point is - Folsom has taken on a crushing financial burden and that will affect the way he prepares the case.  The crush comes from both the apparent inability of Zazi to pay, and from the work for paying clients which Folsom will have to forego while working on Zazi's case.  Even the possible presence of CJA reimbursement won't help that much.  Folsom will have to lay out the cash now and any reimbursement will come later.  Much later.  That's a cash crunch he won't be able to withstand.

    In taking this case Folsom's situation - business-wise - reminds me of a colleague's.  This colleague does a nice business representing ordinary working people who need divorces, guardianships, wills, house closings and minor criminal matters.  Nothing serious, nothing heavy in terms of litigation.  Usually things are simple and the biggest asset is the family home and the biggest issue how to deal with it.  This colleague sets up his work for these clients on a flat-fee basis: "you bring me $2500 and I'll get you a divorce", in so many words.  That works well for both sides of the relationship.  The client gets the legal problem resolved for a fixed fee which they know and have to come up with in advance, and they know the problem will be resolved quickly.  The attorney has payment in hand before he starts work (no collections necessary) and every incentive to resolve the case quickly.

    This works fabulously until a complicated or new issue arises.  I do per diem work for this colleague and others and, working with him on even the most simple case is always under the gun of "do magic to resolve the issue and spend no time on making it happen", in large part because I charge (extremely reasonable) hourly rates for my per diem work.  If (to keep things very simple) the $2500 price to get grandma's handwritten Will probated and Estate administered gets complicated by a relative who does not want to see that will admitted to probate and we have to litigate, then me spending 3 hours researching and writing a simple letter brief on why Grandma's handwritten will is valid suddenly turns the case into a money-loser.  My colleague (and this obtains for everyone working on a low, flat-fee basis) is then under enormous financial pressure to settle the case and resolve the issue now because he is not getting any more money from the client regardless of how long, how hard or how successfully he works.  My colleague has fabulous negotiation and settling skills, but I often have the nagging feeling that he's selling the client on settling not because settling is the "best" result for the client but because settling (while it does insulate the client from exposure to more legal fees) guarantees my colleague's work on this case will not become a finncial black hole.  

    I can't begin to count the number of times I've seen perfectly good legal issues which, if pursued, could have gotten more for the client, left on the table in the interests of a settlement now.  Of course, this depends on the value judgment of how you define "best result".  It's an argument which can go on forever.

    This flat-fee mentality runs up against the rocks and falls to pieces when you come up an adversary who is unwilling to compromise, or at least unwilling to compromise without a court hammering them with orders forcing the case to move toward the middle.  In other words, for example, an AUSA prosecuting a supposed case of terrorism.

    Every offer of settlement, offer to resolve, offer to negotiate will be met with "plead to the indictment" or "no".  All those finely honed settlement chops are useless when the other side doesn't want to dance and resolve but instead wants to win and win it all.  The litigation skills needed to fight in that arena are atrophied (if they ever had been developed in the first place).

    This problem is exacerbated when, as seems likely, the client is unsophisticated in legal matters and is relying more heavily on the lawyer for advice, counsel, emotional support, you name it, than would the experienced client.  Now, the client takes what the lawyer says as Gospel, becomes wedded to their choice of lawyer and will not even entertain the idea that his choice of lawyer might no longer be appropriate (even if, initially, that lawyer might have been appropriate to the problem as it then existed).  

    And this emotional attachment which the client might have to a lawyer (kind of like a gambler who's lost objectivity doubling down on a bet which, everyone else sees, is certainly going bad) does not take into account the possibility that the client sees his arrest and prosecution as a martyrdom kind of thing, or is scamming his own lawyer or the feds to help the client's henchmen make good their escape.  Those exacerbate the situation.

    I think the comments which posit one of the drivers behind Folsom's behavior/choices in this matter as the "need to get on Larry King" likely have some validity.  Working on Joe Schmoe's divorce or DWI is usually not the most rewarding - in ego terms - kind of work.  Indeed, it can be both deadly dull and will never make you even remotely famous.  How much of the mix the need to be on TV might be - who knows.

    Lastly, as to tight-knit immigrant communities pooling their money to help out one of their own -that has some truth, but for it to operate two conditions have to exist which I haven't seen yet as to Zazi.  First, you have to be a member (and, usually a well-respected one) of the community for the community to pull together around you.  From what I've read, Zazi just moved to Colorado a year or so ago and is not really a part of his community.  Second, if either you are so radioactive because of the allegations against you or are likely to make life more difficult for the community because of what you are alleged to have done or who you are, they are more likely to cut you adrift.  One of the truisms that applies is that people at the bottom of the system see and understand, in great detail, exactly how the system works.  They do not have the luxury of harboring, let alone believing, illusions of fairness, justice obtaining, right will out, or any of the other things which middle-class people dragged into the criminal arena might entertain.  They've seen friends and relatives beaten by cops or dragged into cop cars for no reason, people convicted to make the system run, and all the other injustices in the criminal justice system. They are quite willing to, and do, toss members of their community to the wolves of the justice system rather than go down with them.

    More likely the community rallies around Zazi's father and/or family.


    Mohammed Atta (none / 0) (#5)
    by gyrfalcon on Sat Sep 26, 2009 at 12:22:00 AM EST
    I think it's entirely possible that this guy, if he is what the feds say he is, doesn't think the same way your garden-variety American charged with a serious felony thinks.

    What would, for instance, Mohammed Atta have done if he'd been discovered and intercepted in mid-conspiracy before 9/11?  If you're a religious fanatic whose aim is to organize a group suicide bombing, you're not going to be worried about self-incrimination, you're going to be thinking as fast as you can about how to alert your comrades and delay or distort the investigation.

    Folsom, seems to me, could well be somebody who wants more than anything else to get on Larry King.  He wouldn't be the first semi-competent lawyer to bankrupt his practice for the sake of publicity he imagines will make him a wealthy and celebrated "high-profile attorney" with lots of rich clients.

    As far as funding the defense goes, if Zazi has a lot of family in this country (don't know whether he does or not), they may well all be scurrying around getting second mortgages and digging into savings to pay the attorneys' expenses, if not the fees.  That's not an uncommon response in tight-knit immigrant communities when someone gets in trouble or is in need.