Kansas public defender again faces rocky hearing for appellate judgeship
When his father is released from prison in 2025, Jamari Traylor wants to reconnect with him by playing the video games they enjoyed when he was a kid.
“I just know how much better the graphics and stuff is. I want to sit down and let him have a chance to see how things have progressed,” Traylor said. “It’s something we always did and it comes from my childhood, that’ll bring us back together.”
He also plans to finally open the bottle of scotch his father, Jessie Traylor, had saved for a 21st birthday drink. Jessie Traylor was sentenced to life in prison in 2008 for a drug possession charge that today would have earned him only 10 years.
This moment between Traylor, 28, a former University of Kansas men’s basketball player, and his father, 52, is now possible because of Carl Folsom, a Kansas Public Defender who committed dozens of pro bono hours to guiding them through the clemency application process.
They were successful in January 2017 when former President Barack Obama commuted Traylor’s sentence from life to 20 years. He’s expected to be released in 2025.
“It’s going to be a great feeling, a feeling of my dad that I haven’t had since I was a young man,” Traylor said by phone Thursday morning from Japan, where he plays professional basketball.
On Thursday, for the second time in a year, Folsom’s nomination for a spot on the Kansas Court of Appeals came before the Kansas Senate Judiciary committee. And, for the second time in a year, his experience as a public defender was a major sticking point among senators concerned that his experience was not broad enough.
The committee voted Thursday to advance Folsom’s nomination to a vote by the full senate, but without recommending he be confirmed.
Last June his nomination was rejected on an 18-17 vote, just short of the 21 votes needed for confirmation.
Many, including prosecutors and the Kansas Bar Association, who spoke out in defense of Folsom after his rejection in June are speaking again hoping to propel the attorney towards a judgeship.
Folsom referenced those voices while testifying Thursday.
“I have faith that the elected representatives of this state will consider these new facts and make an independent decision that I’m qualified,” Folsom said.
Lawmakers, however, indicated that the wealth of support may not be enough to change their mind.
Sen. Molly Baumgardner, a Louisburg Republican who opposed Folsom’s confirmation last year, said the letters did not assuage her concern that Folsom’s experience was too narrowly focused on criminal law.
“The information is friends and colleagues saying we support him,” she said. “That is not information ... it’s popular support from a group of friends we respect that but again it does not change that underlying application.”
Folsom might have a better shot, she said, if he took a few years off and practiced a different type of law to broaden his experience.
Folsom, a graduate of the KU law school, has worked in the Kansas Appellate Defender’s office, and was an assistant Federal Public Defender in Kansas and Oklahoma. He spent three years as a civil attorney at a private firm and is an adjunct professor at the KU law school.
He said, Thursday that he had litigated more than 200 appeals in his career.
‘My life today is forever changed’
One letter to Senators was from Brandon Flint, a Folsom client convicted of aggravated assault.
Flint said everything he had going for him was “flushed down the toilet” when he pointed a gun at two men attacking the mother of his children.
Because of technicalities in Kansas law, the jury in his case could not consider whether he’d acted in defense of another person.
Now a felon with a firearms conviction Flint, an army veteran, lost his job. Folsom appealed to the state legislature to change the laws and apply them retroactively thereby reversing his conviction.
“He defended my rights to the upmost of his abilities and my life today is forever changed because of him,” Flint wrote.
“(Without Folsom) I’d still be a felon, and I have no idea what job I’d be doing,” Flint said.
Lawmakers received letters from the U.S. Attorney for the District of Kansas, Steve McAllister, former Kansas Senate President Jeff King and several attorneys and prosecutors across the state.
McAllister, a Trump appointee, said he had argued cases against Folsom, his former classmate, several times. He praised Folsom’s integrity, skill and fairness proclaiming that he would not be driven by an “agenda” on the bench.
“The work and role of prosecutors could not be successful without good defense attorneys, of which Carl is one,” McAllister wrote.
King, who served in the state senate when the confirmation process was created, wrote that he hoped the story of Folsom’s confirmation could send a message recognizing the work of public defenders.
“Every person in our legal system has a right to a lawyer to defend them and we should applaud lawyers who defend all varieties of clients,” King said.
King referred to the confirmation of Supreme Court Justice Caleb Stegall, who was also attacked during his confirmation because of a client he represented. King said he was proud of lawmakers for choosing to confirm regardless. Last year, Stegall, a conservative, harshly criticized the senate for its rejection of Folsom in an op-ed in the Topeka Capital Journal.
In an interview, Wednesday, King said he believed in the confirmation process but that “the process is only as good as the information that’s put into it.”
“I think the senators were greatly handicapped by the information at their disposal,” King said. “I know a number of people that are supporting him last time were not given the opportunity last time.”
During Thursday’s hearing, Sen. David Haley, a Kansas City Democrat, cited King’s testimony as proof of Folsom’s qualifications.
Haley served with King, a Republican, on the Sen. Judiciary committee.
“(King) and I were not always on the same page and we would look at different applicants for these positions,” Haley said. “I am pleased that he and I are on the same page. It is obvious, Mr. Folsom, that you should be there.”
In an emailed statement, Gov. Laura Kelly reaffirmed her support for Folsom.
“As I have said, Carl has a passion for the practice of law and a real understanding of how it affects Kansans’ daily lives. He is not afraid to stand up for the people of our state and protect their fundamental rights, and he will serve Kansans well, with fairness and compassion, on the Court of Appeals,” the statement said.
Public Defenders
Concerned that the words of lawmakers had tanked morale in an already struggling agency, the Kansas State Board of Indigents’ Defense Services published a swift resolution in June affirming the value of public defenders in the state’s justice system.
The resolution condemned the statements made by Senators attacking Folsom’s work and clients as “as inaccurate, uninformed and detrimental to providing the due process of law guaranteed to every citizen of this State.”
Public defenders are already notoriously overworked and underpaid nationwide.
Jennifer Roth, a public defender in the state’s appellate defender office who worked with Folsom on legislative changes to help Flint, called the day the Senate voted to reject Folsom one of her “lowest days in 2020.”
This move, she said, not only suggested that the Senate did not value diversity of experience on the court but also served as a blow to public defenders in the state and their ability to recruit and retain good lawyers.
“For people to feel like they’ve been fairly heard and their case has been fairly considered then we need to have people who have these different experiences,” Roth said.
Baumgardner said Thursday that her position did not reflect a belief that public defenders were not valuable but rather a position that Folsom needed more varied experience.
Throughout his time working with Folsom, Jamari Traylor said, he had been optimistic but nervous. Previous efforts to help his father hadn’t worked out.
The work of Folsom and other attorneys at the Clemency Project, he said, “means everything.”
“They gave us hope because there was honestly a time when I didn’t think I’d see my dad outside the prison,” Traylor said. “It wouldn’t have been possible without them.”
This story was originally published January 21, 2021 at 1:24 PM.
