Published in 2017 Colorado Super Lawyers magazine
By Jessica Glynn on March 15, 2017
During the high-profile murder trial of Tom Fallis in 2016, defense attorneys Iris Eytan and Dru Nielsen weren’t just interested in creating reasonable doubt; they wanted to convince the jury that their client—accused of shooting his wife, Ashley, after a New Year’s Eve party in 2011—was completely innocent; that he had simply watched in horror as his wife killed herself.
“All we have to do is prove they don’t have a case,” explains Eytan, her voice rising. She is sitting beside Nielsen, her legal partner and best friend, in the conference room of Eytan Nielsen, the Denver firm they co-founded in 2015. “That’s all that we need to do. We go into court, show…”
“Show there’s reasonable doubt,” interjects Nielsen.
“A simple cross examination to show they don’t have the evidence,” Eytan continues.
“Can you see Iris doing that?” Nielsen says with a laugh. “I’m holding her back, holding her back!”
“As defense lawyers,” Eytan adds, “we are trained to be very careful about how we defend cases because prosecutors abuse facts that are completely benign to get a conviction. So you’re not going and developing evidence for them. It’s not what you do. It’s not your burden of proof. That’s called burden shifting. But with this one, it was so absurd that they were charging him with murder and it was a nationally televised case, we were thinking, ‘Have they ever even put together the scene so that they could really understand how unjust this prosecution is?’”
Instead, Eytan and Nielsen did it for them. They built the Fallis bedroom, complete with the actual furniture and measurements down to the millimeter; and during a cross-examination in a Weld County courtroom, they did for the jury what they had practiced hundreds of times in their office: Nielsen pretended to be the victim to show that Ashley Fallis would have had to have been standing on the dresser when Tom Fallis shot her for the dimensions and bullet trajectory to add up.
The jury came back with a “not guilty” verdict in under four hours.
“We didn’t have to prove his innocence, but we did,” Eytan says.
Civil rights attorney David Lane, of Killmer Lane & Newman, says the Fallis trial—particularly the thoroughness of their investigation and creativity in forensics—is a prime example of why he calls Eytan and Nielsen two of the best criminal defense lawyers he’s met. “Iris is a force of nature when she gets unleashed on a case, and Dru is a steadying hand,” he says.
Defense attorney Pamela Mackey of Haddon Morgan and Foreman says there are a lot of people in Denver with terrific legal skills, but not everyone will accept her 2 a.m. phone call or take care of their clients’ emotional needs the way Eytan and Nielsen do.
“Dru is calm, meticulous and has outstanding judgment,” Mackey says. “Iris is passionate, wildly emotional, very very intense, and can be over the top. She’s a force to be reckoned with. You have to step back when Iris is on a terror.
“They’re extremely different people who complement each other’s strengths and weaknesses.”
As an aside, Mackey suggests talking to the women separately. “Dru can hardly get a word in edgewise,” she says.
In the conference room, Eytan is explaining how she became a criminal defense attorney.
Her parents, originally from Iraq, immigrated to Israel and then Arizona before she was born. As a first-generation American, she felt isolated and embarrassed that she did not fit that “American Girl-doll kind of look or feel.” She wanted to help kids who felt different and decided on a career in child psychology—a natural fit in a family where her father and brothers were doctors.
But when her parents learned she was dating a non-Jewish boy at school, they cut her off financially. So to help pay tuition and expenses, she took a night job at the county mental hospital that changed the course of her life. She saw people being overmedicated for the staff’s convenience. Eytan knew she did not want to be a part of that system—she wanted to change it—but she didn’t know how. One day, she saw a patient being escorted by a woman in a suit and asked who she was.
“She’s a lawyer.”
“What is she going to do?”
“She’s going to get her out of here.”
“That’s what you have to do? You have to be a lawyer?”
During her second year at the University of San Diego School of Law, she felt disheartened when everyone started getting dressed up and going off to interviews at business law firms. “What are you people going to do all day?” she thought. “You’re going to help more people make more money.”
Eytan used a scholarship to fund a summer in Montgomery, Alabama, where she volunteered on the landmark Wyatt v. Stickney litigation, which sought to enforce access to treatment for those with mental illness or developmental disabilities. Later, she moved to Denver to work for what is now Disability Law Colorado, monitoring the state mental hospital. The work felt important, but she didn’t feel she was helping individual people. “I realized all of my clients were in the criminal justice system and I should be doing that. So I applied to be a public defender in 1999.”
Which is how she became a criminal defense attorney.
Eytan lets out a long breath and smacks the conference table. “There you go,” she says.
“How many minutes was that?” Nielsen says with a laugh. (For the record: 25.) “Mine will not be as colorful.”
Nielsen knew she wanted to be a lawyer in junior high when family friend and attorney Lisa Wayne took her to Denver County Court for career day. During law school at the University of Colorado, she got an internship with the public defender’s office. When she graduated, she became a public defender. “See?” she says.
It was in the public defender system that Eytan and Nielsen met. “We’d go see live music together and bitch about prosecutors,” Eytan says.
In 2001, after three years as a public defender, Eytan was asked by Larry Pozner of Reilly Pozner to come join his firm. “I did not want to work for a law firm,” she says. “It had nothing to do with who I was.” Yet the offer was enticing: She’d have resources at her disposal and still pursue the mental health issues she was passionate about. So she made the leap.
Around that time, she got involved with the Colorado Lawyers Committee; she led a team in suing the state mental hospital three times to reduce the amount of time mentally ill inmates had to wait for evaluation or treatment. “This was a major piece of litigation for us that protected the rights of individuals in jail with mental health problems, who were waiting as much as six months for a mental health evaluation or mental health treatment,” says Connie Talmage, executive director of the committee. “She was able to negotiate that number down to 28 days and make sure she got the state to agree to pay for an independent monitor who would ensure their compliance.”
But Eytan’s caseload was growing and she wanted a lawyer who could share it.
By that time, Nielsen was a felony division lead at the Denver trial office, managing and training young lawyers. She had no plans to leave. Indeed, both Nielsen and Eytan get wistful looks when they talk about being public defenders.
“It is the best job I’ve ever had,” Eytan says, “and the best job Dru has ever had. To be able to stand up for somebody that doesn’t have anyone standing up for them at any point in their life. Ever. And giving them a voice no matter if what they did was the most heinous thing. But you can say something kind about them in front of a judge. It’s a unique experience. And to get to do that on a daily basis, 20 times a day? There can’t be anything more fulfilling than that.”
“Yesterday,” Nielsen adds, “I did a hearing and I had 15 family members and friends sitting there supporting my client, which is really amazing. But it just struck me: When you’re a public defender, a lot of them don’t have anyone come to court. Nobody. It’s you and the client.”
But Nielsen made the leap, too, joining Reilly Pozner in 2007. Then in 2015, as the firm downsized, they saw an opportunity.
Their former boss, Larry Pozner, says they were a natural pair to create a firm. “People who do criminal defense well look at it as more of a statement of values than as a job,” he says, “and they both care deeply about justice.”
David Kaplan of Haddon Morgan and Foreman, who oversaw Eytan and Nielsen in the Colorado State Public Defender’s Office, says not every public defender succeeds in private practice; but Eytan and Nielsen knocked it out of the park. “These are two hard-ass criminal defense lawyers who have the reputation of being really capable and competent in a tough business,” he says.
Sean Connelly of Zonies Law, a former partner at Reilly Pozner, says the pair would often pop into his office wanting to brainstorm. “They just had an excitement about their work and belief in each individual client. They would often say, ‘I’ve got this client and he’s wrongfully accused,’” he says. “There’s no cynicism with them. They really believe in what they’re doing.”
“I think we’re a great team,” Nielsen says. “We talk about cases all the time. It’s not just here in the office. Every night I’m talking to Iris about cases and I’m getting her perspective and she’s getting mine. Somehow it’s magic.”
Currently, Eytan and Nielsen have carved out a niche representing college men accused of sexual assault. “I think everyone agrees rape is terrible and it happens, but not every time a woman alleges some type of sexual abuse is it true,” Nielsen says.
As explained in Eytan’s “Sex, Booze, and the Law” lecture, the lawyers take issue with how Title IX has been applied to sexual assault allegations. Colleges, she contends, are afraid of losing federal funding, so they’re stripping away due process by not allowing the accused to have lawyers and by basing expulsion decisions on a preponderance of the evidence. “That means: ‘Do we believe her a smidge more?’” Nielsen says.
“Let me tell you about that smidge,” Eytan adds. “If the girl was drunk, she can’t consent. Game over. You’re expelled. You’re done. That’s the law these boys now have to respond to without having a lawyer.”
As Nielsen and Eytan try to do their jobs in the wake of an accusation—digging into text messages, social media, and interviewing students in the dorms—the investigation itself has been labeled retaliation and can also lead to expulsion. “I have no doubt that many good boys’ lives have been ruined by the accusation,” Nielsen says.
That’s why it’s the cases the public never hears about—for whom she secured a dismissal or no-file up front—that Nielsen measures her success by. “I’ve represented lawyers, doctors, students, all people with bright futures that do well in life,” she says. “When I think about those cases that are not in the news, and [the accused] have gotten to go on with their lives and marriages and careers, I feel proud.”
One of Eytan’s most memorable moments as a lawyer was at a sentencing hearing for a mentally ill client who had committed, she says, a “pretty heinous” crime. Eytan used psychiatrist testimony to try to get him a more lenient sentence but he still got the maximum. She was visibly upset. Then her client reached over to grab her hand. “It’s OK, Iris,” Eytan remembers him saying. “It’s going to be OK. I’m going to be all right.”
“That’s the moment,” she says, looking over at Nielsen, who, like her, has started to tear up. “That’s why we do it.”
First Place Award in the Top of the Rockies Awards presented by the Society of Professional Journalists – Colorado Pro chapter in the Legal Reporting category.
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