Key Quote: “The same senators who expressed horror at the prospect of defending a poor person accused of a crime are no doubt the same ones who would rubber-stamp any prosecutor, without asking whether they had ever prosecuted an innocent person or questioning their record prosecuting persons of color,” said Brannon, the federal public defender who works with Folsom. “And they would not question the morals of a civil attorney who represented big pharma or their lack of experience with criminal cases. This double-standard has always existed, but these senators brought it into broad daylight.”

Before Kansas Senate snubbed Carl Folsom, he helped veteran beat faulty felony

Kansas Reflector

Sherman Smith

August 13, 2020

Emporia authorities didn’t view Brandon Flint’s actions favorably when he walked out of a nightclub in 2008 and rescued his fiancee from an attack by two men.

The U.S. Army veteran, who had served two tours in Iraq, retrieved a handgun from his car and pointed his weapon at the attackers as they struggled with the woman. The men quickly complied with Flint’s orders to leave. 

“I reacted with superior force, took over the situation like I was trained to do and I’d done time and time again while I was deployed, and it caught me a felony,” Flint said.

Prosecutors in Lyon County charged Flint with aggravated assault with a deadly weapon, and the district judge refused to let the jury consider whether Flint’s actions were justified as defense of another person. The jury convicted him of the felony. He was placed on probation, required to register as a violent offender and lost his job. 

Carl Folsom helped Flint clear his record. The public defender appeared with Flint before legislators in 2010 and convinced them to rewrite state law regarding the use of force, including a retroactive provision for Flint’s sake. Folsom then argued before higher courts to get Flint’s conviction overturned. 

Folsom’s work with Flint wasn’t recognized earlier this summer by politically motivated senators who denied Folsom a seat on the Kansas Court of Appeals and denounced his experience representing criminals. 

Gov. Laura Kelly called a special session in June after using her veto authority to force legislators to re-draft a bill dealing with the state’s coronavirus response. The Democratic governor also asked senators to consider Folsom as her choice to fill an appeals court vacancy. 

Republicans combed through the details of Folsom’s past as they prepared to send a message to the governor. They focused on an essay Folsom had written two decades earlier, his comments during a panel discussion on strict sentencing for marijuana convictions, his stand for transparency in a fight over a proposed poultry plant near Tonganoxie, and an appeals case in which Folsom was appointed to represent a man convicted of possessing child pornography.

The June 3 debate over Folsom’s lack of experience outside of criminal defense failed to take note of clashes between police and protesters happening at the time in the streets of Topeka and other cities across Kansas and the United States.

“This cannot be dismissed as mere politics,” said Melody Brannon, who leads the federal public defender’s office in Kansas and is Folsom’s boss. “It is much deeper and more harmful. Public defenders represent clients who are poor and often people of color. To denigrate our clients and Carl’s work while protests against systemic racism saturate our communities is particularly reprehensible. Our responsibility as public defenders is to call out police and prosecutorial abuses in defense of our clients of color — these senators did not want that experience and presence on the bench.”

A review of judicial resumes reveals little to no criminal defense experience among current members of the Kansas Supreme Court and Kansas Court of Appeals. The benches are filled instead with experienced prosecutors and civil attorneys.

The Senate’s rejection of Folsom forced the Court of Appeals Nominating Commission to restart the process of choosing three nominees for the vacant appeals court position. The commission again has picked Folsom as one of the three best candidates for the job.

Kelly has until Aug. 25 to decide whether she will nominate Folsom again.

‘Entire theory of defense’

Folsom was “really a godsend” to Flint.

Flint now lives in Sioux City, Iowa, and travels around the world to work on nuclear power plants. He wouldn’t be allowed to do this work with a felony firearm conviction.

“The desk that Homer Simpson sits behind with all the lights and switches? I fix the stuff on the other end of them. Make sure all the pipes open and close like they’re supposed to,” Flint said. “I have to have pretty high-level clearance. Some of the plants I go into, they do retinal scans like James Bond and s***. I go through airport security every day.”

Folsom wrote about Flint’s case in a 2013 post on the Kansas Defenders blog.

Flint’s actions were a clear example of the affirmative defense of another, Folsom wrote, but the prosecutor argued Flint overreacted to the situation. The district judge agreed.

“The jury never got to decide whether Mr. Flint was legally allowed to defend his fiancee, even though that was his entire theory of defense,” Folsom wrote in the blog.

The Kansas Court of Appeals initially rejected Flint’s appeal because, under state law at the time, he wasn’t entitled to claim defense of another when he didn’t actually use force. Under the logic of the law, Flint would have had a stronger defense if he had actually shot the men.

Folsom brought the situation to the attention of the Legislature and asked for a retroactive fix. In testimony for a committee hearing, Flint explained how he became a felon by protecting the mother of his child. He highlighted his Army service in Iraq.

“I hauled jet fuel and was shot at with everything from AK-47s to RPGs and rockets,” Flint told the legislators. “Roadside bombs hit our convoys constantly. I went through all of that to help keep our great nation safe, only to find that the same great nation I protected does not allow me to protect myself or my loved ones.”

After the Legislature adopted changes to state law, the appeals court overturned Flint’s conviction. The state asked the Kansas Supreme Court to uphold the guilty verdict, but justices agreed there was no crime.

Despite his overturned conviction, the Kansas Bureau of Investigation listed Flint as a “non-compliant violent offender” on the state registry, and the Lyon County attorney’s office in 2013 decided to retry him.

This time, with the new law in place, the court gave the jury the option of deciding Flint had the right to protect his companion. The jury found him not guilty.

“There is a big difference between the heart of the law and the letter of the law — the reasoning for it and its implementation,” Flint said. “That’s why people like Carl are important in my mind, because the difference between a conviction and an innocent verdict could rely on just a couple of words, how they are written and how they are interpreted.”

‘Collateral damage’

In the days after the Senate declined to affirm Folsom’s appointment to the appeals court, Sen. Rob Olson tried to justify his “no” vote in an email responding to criticism by public defenders.

“Everything about this special session was the governor and some legislative leadership stuffing two days down our throats,” Olson said. 

The Olathe Republican complained he wasn’t allowed to debate or offer amendments to the signature piece of legislation before the Senate, a compromise plan for dealing with the pandemic that had been worked out between the governor’s office and Republican leadership.

“My district would have been better represented — and the nursing homes, special needs and junior college community in my district would have been better served — if I had not even attended the session,” Olson said. “Then someone I knew absolutely nothing about just days before gets thrown at us. I did not even have a chance to meet him.”

Folsom emailed the Senate roster a week before the confirmation hearing to make himself available for any questions the legislators might have.

There was enough time before the confirmation hearing for Sen. Eric Rucker, R-Topeka, and Sen. Molly Baumgardner, R-Louisburg, to gather background information on Folsom and form a plan of attack.

The governor didn’t just veto the Legislature’s plan for dealing with the pandemic. Kelly also had vetoed an education package cherished by Baumgardner. The package included the establishment of a new report card system for students in foster care, a provision with bipartisan support. Later, Kelly created the report card system through an executive order that lifted language word-for-word from the bill she rejected.

This behind-the-scenes crossfire served as backdrop to the debate over Folsom on the Senate floor, where Baumgardner led the charge.

The senator complained Folsom’s experience as a public defender was too narrow for consideration of an appeals court seat. She expressed alarm that he had once asked for a reduced prison term for a man who had 20,000 images “so horrific they included penetration” of girls ages 5 to 15.

Folsom couldn’t be trusted to be fair toward victims of such crimes, Baumgardner said.

“Kansans that go before the appeals court should have a judge that is not perceived as an activist judge, is not perceived as being partial,” she said.

Senate Vice President Jeff Longbine was the only Republican to take a stand for Folsom.

“If we do not recognize the value of public defenders in our justice system, then we have no justice system,” he said.

In an 18-17 vote, the appointment failed to win majority support from the 40-member chamber.

Furious over the decision, the governor voiced her frustration in an abrupt news conference in the Statehouse rotunda.

“Why they did this, I don’t know,” Kelly said. “Sounds like politics to me, when you’ve got a man as qualified as this and as good a person as this. To let him become the collateral damage in your political games is absolutely wrong. The Legislature needs to think long and hard about what they just did.”

‘Cynical exploitation’

Meryl Carver-Allmond, a career public defender who now handles appeals in capital murder cases, hears criticism about her profession all the time.

The jibes go like this: Public defenders aren’t real lawyers because they settled for a low-paying job with no ladder to climb or hope of someday being a judge.

“I’ve heard that at dinner parties, family reunions, whatever, but to hear it on the floor of the Kansas Senate was pretty discouraging,” she said.

Even Sen. Vic Miller, a Democrat from Topeka, referred to public defenders’ clients as “vermin” while trying to articulate the nuances of the justice system.

People tell Carver-Allmond the Senate debate was just politics, she said, “like that’s supposed to make me feel better.”

“I didn’t have the most privileged upbringing,” Carver-Allmond said. “My family was pretty poor, but I knew that my parents loved me. I had my basic needs met. We always had clothes. We always had food. We always had the things we needed. And I can’t say the same for a lot of my clients. A lot have been through some really horrible, horrible things. So that’s kind of where I come at it from. You really have to look at the whole person and not just the one horrific act that everybody knows about.”

She conducted an informal review of the background of the seven Kansas Supreme Court justices and 12 Court of Appeals judges. Few have ever worked in criminal defense, but 75% of the appeals docket deals with criminal cases. 

A review by the Kansas Reflector affirmed her findings.

Based on judicial biographies and incomplete responses to questions relayed by Lisa Taylor, the communications director for the Kansas Judicial Branch, Supreme Court Justice Carol Beier appears to have the most experience on the criminal defense side of the scales of justice. Beier practiced criminal defense law exclusively for a year in Washington, D.C., and for a year while teaching at the University of Kansas.

Justice Eric Rosen was a public defender in Shawnee County for about six months. Appeals Judge G. Gordon Atcheson estimated he spent 40% of his time on criminal defense work in the years right before he was appointed to the court. No others have any apparent experience representing individuals charged with a crime.

In contrast, four Supreme Court justices and four appeals court judges have experience as prosecutors. The others have experience in civil litigation.

“The same senators who expressed horror at the prospect of defending a poor person accused of a crime are no doubt the same ones who would rubber-stamp any prosecutor, without asking whether they had ever prosecuted an innocent person or questioning their record prosecuting persons of color,” said Brannon, the federal public defender who works with Folsom. “And they would not question the morals of a civil attorney who represented big pharma or their lack of experience with criminal cases. This double-standard has always existed, but these senators brought it into broad daylight.” 

In 2014, the Senate approved Republican Gov. Sam Brownback’s appointment of his chief counsel, Caleb Stegall, to the appeals court. After the Senate rejected Folsom’s appointment, Stegall, now a Supreme Court justice, authored a stunning rebuke published by The Topeka Capital-Journal.

“I was disappointed this past week when again some chose to attack a judicial nominee because he has represented unpopular people; namely, criminal defendants,” Stegall wrote. “Not only is this unfair to the nominee — Carl Folsom III in this instance — it belies either a real ignorance of our system of justice or a cynical exploitation of that ignorance.”

As Flint put it: “Everybody needs represented, man. Everybody needs to be heard.”