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Frank Dunham Jr. created the federal public defender’s office in Northern Virginia out of whole cloth, nursed it into prominence, and, ultimately, in the wake of Sept. 11, embraced its role as an advocate for suspected terrorists. Now, with the office ready to attempt to persuade a jury to spare the life of perhaps its most notorious client, Dunham won’t be there to be a part of it. Diagnosed with an aggressive brain tumor last year, Dunham is retiring from the office he built. And the hole he will leave, friends and colleagues say, will be significant. “No one is indispensable, but some people are very hard to replace, and Frank is one of them,” says John Zwerling, an Alexandria-based criminal defense lawyer who has known Dunham for years. Dunham’s illness was diagnosed in May, and he needed immediate surgery. The treatment that followed was intense and debilitating, but Dunham was hopeful he would go back to work eventually. By December, he realized that couldn’t happen. “I think he hoped he could heal to the point where he could practice law again. That was very early on after he was diagnosed, before he went through radiation,” says his son Chip. “Maybe deep inside he knew he wouldn’t be able to, but actually making the decision to give up that position was very hard.” Late last year the 63-year-old federal public defender announced his resignation, citing as reasons his illness and the desire to spend more time with his family — his wife, Elinore, and sons Chip, a tax attorney in suburban Maryland, and Jody, who is training at Quantico, Va., to be an FBI agent. Dunham’s retirement officially takes effect Wednesday, just days before jury selection is set to begin in the death penalty trial of Zacarias Moussaoui, the only person charged in connection with the Sept. 11 terrorist attacks and who pleaded guilty to six conspiracy charges last year. Now, the lawyers Dunham selected to assist him on the case he managed for three years must forge ahead in his absence. “His leadership and personality would make whatever pitfalls they are going to go through easier,” says William Cummings, an Alexandria, Va., defense attorney and longtime friend of Dunham’s. “I think they’ll carry on, but it certainly would be easier with Frank there.” Dunham’s resignation also marks the end of a memorable 25-year career as an influential criminal defense lawyer who handled some of Northern Virginia’s most nefarious cases in one of the most difficult venues for defendants. And since 9/11, Dunham’s office has played a large role in representing individuals accused of plotting to kill Americans as part of an Islamic jihad. PROSECUTIONS AND PERRY MASON Thirty years ago, Dunham worked the other side of criminal law as an assistant U.S. attorney in Virginia’s Eastern District. He developed a reputation as an aggressive prosecutor, Cummings says, but his disarming sense of humor and self-effacing humility made him likable, even to courtroom adversaries. It was early on in his life when Dunham decided he wanted to go to law school, according to Chip Dunham, who recalls hearing stories about his father’s childhood affinity for Perry Mason novels. “He always wanted to be a lawyer, but his family didn’t have the money,” he says. After college, Dunham worked days to pay for night classes at Catholic University’s Columbus School of Law. In 1970 he became the school’s first night-school student to graduate first in the class. Dunham spent one year clerking for a federal judge, followed by eight years as a prosecutor, before entering private practice. For the next 22 years, Dunham specialized in white-collar criminal defense at Cohen, Gettings and Dunham in Arlington, Va., representing a number of high-profile clients. Long before FBI deputy director Mark Felt was revealed as Watergate’s “Deep Throat,” Dunham defended him in the 1980s when he was accused of authorizing agents to burglarize the homes of suspected members of the radical “Weather Underground” terrorist group. Dunham went on to defend another FBI agent, Earl Pitts, who was accused of spying for Russia, as well as Galen Kelly, a professional “cult deprogrammer” hired by a young woman’s parents to kidnap her and bring her home. In addition, Dunham served as president of the Federal Bar Association, in 1998 and 1999. It was in the Federal Bar Association newsletter that Dunham learned that plans were in motion to launch a federal public defender’s office in the Eastern District of Virginia, one of the busiest jurisdictions in the country without such an office. Right away, Dunham knew this was the job for him. In 2000 a selection committee recommended Dunham for the position out of about 25 candidates and he was appointed by the U.S. Court of Appeals for the 4th Circuit. When Dunham assumed the post, he alone made up the federal public defender’s office. It was his job to hire lawyers and staff, manage the budget, and find office space in Alexandria, Richmond, and Norfolk. His friends and family say that position was the pinnacle of his professional life. “The absolute crowning achievement of his career was this job. He loved it and he was perfect for it,” says Michael Nachmanoff, who has served as acting federal public defender since Dunham became ill. RUNNING START Dunham was just settling into his new position as the district’s first-ever federal public defender when he received the call. Moussaoui was about to be indicted by a federal grand jury in Alexandria, and Chief Judge Claude Hilton of the U.S. District Court for the Eastern District of Virginia wanted Dunham to take the case. It was a monumental task, but Dunham never hesitated. “Before he even had offices and staff up and running he had what I think is safe to say the biggest criminal case ever prosecuted in this country,” Nachmanoff says. Still, with no office and few resources, Dunham assembled a handful of lawyers to help him defend the accused terrorist. The team included Gerald Zerkin, an expert in defending clients facing the death penalty. Dunham, who had never handled a capital case, often looked to his colleagues for advice based on their areas of expertise. There were concerns that the Moussaoui case would consume the fledgling office. But colleagues of Dunham’s say he didn’t let that happen, even as more high-profile cases came their way. The Eastern District quickly became a hub for prosecuting accused terrorists, such as John Walker Lindh and Ahmed Omar Abu Ali. Then there was the case of Yaser Hamdi, whom the United States was detaining as an enemy combatant without allowing him access to legal representation after he was captured in Afghanistan and accused of fighting with the Taliban. Dunham took on Hamdi’s case, which reached the Supreme Court in 2004. The high court ruled in favor of Hamdi, and he was released. It was considered a landmark case, and Dunham was praised for his impassioned argument before the Court. Just one month before arguing on Hamdi’s behalf, Dunham made his debut appearance before the Supreme Court in the case of Thornton v. U.S., which questioned whether police may conduct vehicle searches without a warrant. Dunham represented the petitioner, Marcus Thornton, who claimed his rights were violated by such a search. The Court found, however, that such searches are constitutional if there is probable cause. Dunham worked tirelessly to prepare for his Supreme Court arguments. “He thrived on that sort of challenge,” Chip Dunham says, adding that it was usual for his father to wake up at 4 a.m. to get an early start on the day, and working weekends was the norm, especially at that point in his career. Meanwhile, Dunham and his team continued working for Moussaoui, despite his resistance. They stood by their client even as he hurled insults in open court and accused them of working in cahoots with the prosecution. During a June 2002 hearing, Moussaoui told the judge he refused to share any information with his lawyers because “I believe that they are working against me.” Convinced his client was mentally ill, Dunham pleaded with Judge Leonie Brinkema to order a competency evaluation, but she refused. Instead the judge granted Moussaoui’s request to defend himself, but she ordered Dunham and his team to remain on the case as standby counsel. Moussaoui’s self-representation was short-lived, and the judge soon told Dunham and his colleagues to resume their roles as his lead defenders. But the attorney-client relationship did not improve. Ignoring the advice of counsel, Moussaoui stood before the judge on April 22, 2005, and pleaded guilty to conspiracy charges that carry a possible death sentence. He admitted to training with al Qaeda and to being part of a conspiracy to hijack and fly a commercial airliner into the White House — a plan he said was to be carried out after the Sept. 11 attacks. During a lengthy diatribe in court, Moussaoui lambasted his attorneys, especially Dunham, whom he called a “Judas” and “an ex-prosecutor who is doing the job of the prosecution.”After Moussaoui’s plea, Dunham stepped down from the case. During an interview with Legal Times just days after his withdrawal, he said: “I looked at the roster and just thought we had too much personnel on the case. Mr. Zerkin is an experienced capital defender, and I am not, so I said, �Hey, what do you need me for?’ “ At the time, those familiar with the case weren’t surprised by Dunham’s decision — his explanation was reasonable, and it seemed like a logical stage at which to make such a change. What was shocking was the news that came next. On May 5, Dunham was diagnosed with a type of brain cancer called glioblastoma, the most aggressive of brain tumors. In most cases the prognosis is considered grave. “I think everybody was devastated by it. First thing you hear is �brain tumor’ and you’re in utter shock,” says Cummings. “It was just utter sadness to see someone who was such an asset to the profession taken to the sidelines.” LASTING IMPRESSION Dunham’s colleagues agree his expertise has been missed, especially in the Moussaoui case. “He brought a sense of organization that a case of that magnitude desperately needed. It was painful at times, but it’s the way you have to litigate a case like that,” Zerkin says, adding that had Dunham stayed on the case, there likely would have been a lot more team meetings. While the basic principles of teamwork and organization that Dunham instilled have remained, Zerkin admits, “We certainly could have continued to use his guidance and participation.” Now, Moussaoui’s lawyers are making last-minute preparations for the upcoming penalty phase. Jury selection is scheduled to begin Feb. 6 and is expected to last about a month. “That case, before Frank fell ill, was very much an ensemble effort, but that’s not to say his work and leadership weren’t critical,” Nachmanoff says. “I know they would love to have his input at this point, but they are doing a great job without him.” As for the future of the Eastern District’s federal public defender’s office, a committee has not yet been formed to search for a permanent replacement. Regardless of who is chosen, Nachmanoff says he is confident the office will continue to thrive thanks to Dunham’s efforts. Under his leadership the office grew from 15 to 24 prosecutors and gained a reputation as one of the best in the country. But Dunham’s legacy is more than just his achievements as a prosecutor, a white-collar criminal attorney, and a public defender. Just as important is the attitude he imparted to those with whom he worked over the years, Nachmanoff says. “He believed you could fight hard and then go out for a beer at the end of the day. He didn’t feel the need to take things personally. I think he wanted this office to reflect that attitude.”
Sarah Kelley can be contacted at [email protected].

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