Kansas Senate put payback politics over justice with public defender Carl Folsom
The Kansas Senate has done a great disservice to the people of our state by not confirming an imminently qualified and brilliant attorney to the Kansas Court of Appeals. Carl Folsom III has litigated hundreds of appeals. He knows the appeals court inside and out. He knows their standard of review of evidence. He knows how to apply the rules of statutory construction. All this applies to civil matters as well as criminal matters. Although, incidentally, the vast majority of cases considered by the appellate courts are criminal cases. He was president of the Appellate Section of the Kansas Bar.
This vote was not about Folsom. No, this was a political vote in a political process. And the scraped-together rationale to justify this purely political vote is disgusting. Instead of admitting the truth — that this was the payback for the tussle over Gov. Laura Kelly’s emergency declaration powers — the state Senate has resorted to smearing the immeasurable value of Folsom and all those who provide a service integral to our justice system.
Defense of the accused is specifically identified and protected in the Constitution. The comments some state senators made during this process reveal a complete ignorance as to their own oath to support and defend the Constitution — or more insidiously, a willingness to use the actions of those who are upholding their oath to the Constitution every day as a reason to disparage and demean them.
The right to counsel is so fundamental to our system of justice that its presence or absence can wholly determine whether due process was provided to the accused. Public defenders speak truth to power. They perform this service for the community; being paid a small fraction of what their counterparts in civil practice make. It is not just clients who benefit from a quality defense attorney in a case, but the larger community. By defending the rights of one, the rights of all are protected.
Instead of identifying a political vote in what is now a wholeheartedly political appointment process, they denigrate an entire profession. It is hard to identify which line of talking points is most vile.
State Sen. Mike Thompson, a Shawnee Republican, had the audacity to claim that Folsom’s years of criminal and appellate practice did not qualify him because judicial decisions “affect] someone’s life.” The implication was that if Folsom had more civil practice experience, he would be better suited. Let me be clear: Civil practice is about money. Criminal practice is about people. Every single criminal case is about someone’s life. It is about trauma, and poverty and substance abuse, and being separated from your family and your children. It is about the frailty of the human condition and the fallible nature of humanity. To tell a criminal attorney that his work doesn’t affect someone’s life is insulting. It is ignorant of the very fabric of the legal system, which applies the laws legislators write. It is infuriating.
While Thompson’s comments are maddening, others’ comments are slanderous and dangerous. State Sens. Molly Baumgardner and Richard Hilderbrand decided to make the assumption that public defenders must be just as terrible as the people they represent. From an uneducated individual with little to do with the legal or legislative system, that may be a forgivable misunderstanding. Our state senators should know better.
Every lawyer swears an oath to uphold the Constitution, and that includes providing the services necessary to protect the rights of those litigants in the justice system. Public defenders have a moral, ethical and constitutional duty to represent the individuals whose cases are assigned to them. We do not choose to represent the worst of the worst, but when you are good at what you do, that is what the system demands of you. That does not mean that we support what our clients have done or been accused of doing.
Half of us probably have PTSD from the work we have done in support of the justice system. We do this because the justice system demands it. And it is hard, but we shoulder the burden because we believe in the system. Without our work, you cannot justly impose any sentence upon any criminal, no matter how deserved.
The likelihood is that someday these people who chose to demonize an entire noble profession for political gain will know someone who needs a defense attorney. A brother or son who had too much to drink before they drove home. A daughter who had a drug problem and was caught by police. A friend who made a mistake. Lucky for them, when that time comes, one of the criminal bar or a public defender will step forward and take up their cause. That attorney will defend the rights of the accused and argue for a just and merciful result. Because that is what we do.
But for now, we have state senators who won’t do their job and will not tell us the truth as to why. Instead of owning their political motives, they demean an entire community that is working to serve the people of the state of Kansas without partiality or bias. These lawmakers are not fulfilling their oath of office. They are not acting in the best interests of their “clients” — their constituents. The people of Kansas would be better off with a good defense attorney instead of these individuals who currently hold office.
Kate Zigtema is a criminal defense attorney in private practice in Shawnee. She specializes in criminal defense, appellate practice and child welfare law.