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Don't flub case against killer Nichols

POSTED: October 23, 2007 5:00 a.m.
A perfect legal storm may be gathering around the Brian Nichols murder case. Georgia could wind up with another national black eye, and justice could be delayed or denied for years.
A Fulton County jury is scheduled to be impaneled beginning Oct. 15 to hear mountains of evidence that Nichols shot to death Judge Rowland Barnes, court reporter Julie Brandau and Deputy Sheriff Hoyt Teasley. The slayings occurred in 2005 in the Fulton County courthouse in broad daylight. Nichols also is accused of killing U.S. Customs agent David Wilhelm in a separate setting.
The identity of the killer is certain. The state has called 400 witnesses. From the outside, the state’s case appears to be a slam-dunk.
From the inside, a legal mess, fraught with political intrigue, is shaping up.
Consider:
* District Attorney Paul Howard has brought a voluminous 54-count indictment against Nichols, charging him not only with the slayings but a myriad of other crimes. With the help of the FBI, Howard has launched a nationwide investigation into Nichols’ background before the defendant moved to Atlanta. Evidence from those background interviews could be used in the sentencing phase of the case. Howard has said he will ask for the death penalty. The DA’s critics say he is grandstanding  —  complicating and raising the cost of what should be a simple trial. His fans say Howard wants to make certain Nichols does not escape the ultimate punishment. Fulton County is noted as the Georgia venue least likely to impose a death sentence.
* The Nichols case will be the first major test of the new statewide system for indigent defense for capital cases. Signs already abound that the system may not survive the trial.
Such an ending would suit several judges and trial lawyers just fine. Those folks are unhappy that appointment of defense lawyers for indigent defendants has been mostly removed from local jurisdictions  —  an important perk for many jurists.
* The Nichols defense team is running out of funds, having already spent $1.8 million trying to counter the state’s wide-ranging and complex indictment. The defense says it will need at least $2.4 million for the trial and initial appeal. Another problem here: Going broke is not unique to the defense in Nichols’ case. The capital crimes section of the indigent defense fund is running out of dollars across the state. The General Assembly specified the new system would be financed by fines and other revenues generated by the courts. As usual, the Legislature guessed wrong on the money. The courts are not producing nearly enough funds, and the state has trimmed allocations.
* Gov. Sonny Perdue has repeatedly refused requests from the court to help provide emergency funds for the Fulton court to guarantee Nichols a fair trial. Oddly, Perdue, known for his disdain of the legal system, is in charge of the indigent defense agency. Georgia was once infamous for greedy governors corrupting the criminal justice system. Reform-minded governors and Legislatures of old finally removed most of the executive branch’s authority to deal with criminal defendants. The current Legislature put Perdue & Co. squarely back in the middle of the procedures.
* The defense is expected to use perhaps the only available option in trying to save their client: a rarely successful argument that the defendant was insane at the time of the murders. Such a defense will run up the court costs considerably. Mental-health expert witnesses must be paid and their expenses reimbursed. The state has a slate of its experts ready to rebut.
* The trial is expected to take three months. Seasoned Superior Court Judge Hilton Fuller has decided against sequestering the jury, apparently believing that allowing jurors to go home at the end of each day will facilitate selection of a better-qualified panel.
“No matter what happens, Judge Fuller is determined not to be another Lance Ito [the judge in the O. J. Simpson trial],” says an associate of the judge. “He also is determined not to have a repeat of the initial Alday trial [another famous ‘slam dunk’ trial from the 1970s of the killers of the Ned Alday family in Seminole County. The guilty finding and death sentence were overturned on appeal].”
Then, of course, there is always a kook factor in such cases as Nichols.’ The defendant received several marriage proposals shortly after his arrest. Demonstrators against capital punishment and others questioning the fairness of Southern justice are likely to turn out and make lots of noise. And a jury panel that can afford to take three months out of their lives to listen to a trial is not likely to be representative of a cross-section of Fulton County.
One other thing: If the defense runs out of money, don’t be surprised to see the trial delayed indefinitely or halted in midstream until state government recognizes that giving Nichols the finest defense possible is in everyone’s best interest.

Contact Shipp at P.O. Box 2520, Kennesaw, GA 30156, or email mailto: shipp1@bellsouth.net
 

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