Of Counsel

Legal Notes on Georgia and The South

All You Ever Needed to Know About Nichols

Posted by Maggie on October 19, 2007

The Nichols case has started to take over the blog, just like it’s taken over the Public Defender system of Georgia. I’ve added a Nichols tag which I’ll add to relevant entries. I wanted to lay out the basic facts charged as well as the legal issues that have come into play. Despite the flack I give the AJC, their timeline of events was a great way to review the major milestones over the last few years.

For those of you who may not follow every single post on my blog, the Nichols case has become a huge quandary for the entire State of Georgia and threatens to destroy our rather young Public Defender system. The facts of the case, as set out below, explain just why one case is so much to handle.

The summary continues after the jump.

Obviously all of the following is “alleged,” though I may not remember to include it in every single sentence. The facts of the case start in March, 2005. Nichols was on trial for rape and false imprisonment. This was the second time the case went forward, there’d been a hung jury the first time. He was accused of confining and sexually assaulting his ex-girlfriend. On March 11, it’s alleged Nichols overpowered a female guard who was monitoring him while he changed into civilian clothes for his trial. (To see the complete indictment–helpfully divided into charges by room–go here.) He struck the officer, who was later in a coma due to brain injuries. The indictment claims he took her keys, sidearm, radio, handcuffs and ammunition.

Once out of custody, Nichols crossed into a separate building (the Fulton County Courthouse is actually three separate buildings connected together, some by skybridge) and went to the chambers of the judge presiding over his trial, Judge Rowland Barnes. It’s alleged he held two case managers and an attorney at gunpoint in the Judge’s office. He overpowered another deputy, gained access to the courtroom and shot the Judge in the back of the head during civil motions. He also shot court reporter Julie Brandau.

Once outside the courthouse, Nichols shot a deputy who died on the scene, and ended up across the street in a large parking garage. He has several charges of armed robbery, aggravated assault, and hijacking cars based on his attempts to find a vehicle to escape. It’s unclear exactly where he was after that–there are reports he used public transportation to leave the area–though he is charged with murder for the death of a US Customs Agent in the North part of the county. He allegedly drove the victim’s car outside the county. The national media gave extensive coverage to the manhunt that followed. Nichols ended up entering the home of Ashley Smith. Smith famously talked Nichols out of continuing his crime spree and notified police of his whereabouts.

Monday, March 14 a mistrial was declared in his rape trial. Tuesday, March 15 Nichols was back in court and appeared before an out-of-county Judge who ordered him held without bail while the charges were pending. Nichols’ defense attorney, Barry Hazen, withdrew from his representation. Chris Adams, of the Georgia Capital Defenders took over the case. Adams was later replaced, at Nichols’ request, with Gary Parker, a deputy director of the Georgia Public Defender Standards Council. Parker added 3 private attorneys to the team. Parker stepped down from the case in March, 2007 due to health problems and was replaced by a private attorney who waived all her fees.

March 25 Judge Hilton Fuller, a senior Judge from neighboring Dekalb county agreed to hear the case after all the Fulton Judges recused themselves since all knew at least one of the victims. After Judge Fuller took over the case, most motions and other records have been sealed. In May, 2005, Nichols was indicted on 54 separate charges in Fulton County.

As far as the legal issues go, defense attorneys requested a change in location–meaning they wanted to go to a different courthouse but keep local jurors. They want the case moved outside the courthouse since that location is itself part of the crime scene. They also requested the Fulton County DA be recused. The Judge ruled the DA could remain on the case. Other courthouses rejected requests for their use. The courtroom issue does not appear to have been finally settled. The Judge has also decided to personally choose the bailiffs in the courthouse instead of the County Sheriff, who has been sued by several victims in the Nichols case. The Judge has ruled to allow cameras in the courtroom at trial.

Once you see how big this case is, the funding problems start to make a lot more sense. 54 charges. Over 300 witnesses, many of whom are civilians but many may be law enforcement and FBI agents who were involved in an investigation of Nichols’ escape. In November 2006 (at the time the case was scheduled to go to trial January, 2007) defense attorneys requested a continuance because the number of documents received from the prosecution was so high, they didn’t have the ability to get through them all. They claimed the recent receipt of 2,000 documents and 20 audio cd’s of data and expected 2,600 more documents within the coming weeks. By December 2006 prosecutors had already turned over 60 hours of recordings but still had to turn over 240-350 hours more. It’s been reported most of these recordings were of phone calls made by Nichols from jail. The alleged victim from the rape trial reported receiving a call from Nichols in 2006 which led to his phone access being restricted and his calls scrutinized.

In January, 2007 the funding issues came to the forefront and in March the trial was officially postponed to allow funding for defense attorneys and potential experts. In May 2007, GPDSC cut 41 full-time jobs, many from conflict attorneys who step in when PD’s have to conflict out, bringing cases all over the state to a halt. The legislature cut funding for GPDSC for their 2008 budget, which was already less than what was required for operating expenses. Fulton County will cover the cost of one of the attorneys, but the Georgia Supreme Court held they will not cover the rest. Their fees have already been decreased significantly. As all filings in the case are under seal, there have been repeated legal wranglings regarding the funding issues with everyone refusing to release their records. Other defendants in other counties have even subpoenad the information to no avail.

Last month, the defense finally announced their intention to use a mental illness defense. This was always considered likely and guarantees a hefty set of expenses for experts for both sides.

Just imagine the effort that has to be expended in a case like this. It is a death penalty case, meaning extra levels of appellate scrutiny. There are hundreds of witnesses. The defense needs to know how they are all involved and interview all they can, possibly more than once. The complexity of trying a case the same place a crime allegedly happened is fodder for a significant number of motions regarding venue and recusal. And no matter what legislators may say about one case being too expensive, Nichols’ defense attorneys have worked for years on this case, seem to be doing an impeccable job, and have shown that they cost substantially less than other complex, high-profile cases.

The prosecution has the responsibility of deciding how a case like this will be presented. Nichols has maintained he would plead guilty if they took the death penalty off the table, but the DA has consistently refused to do so. The prosecution has five attorneys on this case and maintain they are working “on a budget” though they refuse to say what it is. Estimates put it at around double the defense costs. They maintain they keep costs low by refusing to hire a jury consultant while the defense team did. (Let’s think… who really needs a jury consultant more in this case?) The prosecution has a lot more work here than they usually do, that’s certainly true. But they’re not the ones fighting the uphill battle.

Hands down, no one wants to try this case more than once. It needs to be done right and Judge Fuller seems to understand that. The case is now on hold. Defense attorneys filed a motion to hold GPDSC in contempt for non-payment of fees after jury selection started last week. Judge Fuller recused himself from the hearing that was scheduled for Monday where GPDSC had to show why the Judge shouldn’t hold them in contempt. GPDSC is a state agency under the executive and it’s possible the court could hold the governor in contempt. No bail out is in sight. GPDSC refuses to pay.

GPDSC is a young agency, established in 2003, to establish a state-wide system of Public Defense after findings that defendants were not adequately represented. It’s a good system, helping counties fund their public defenders, and having that network allows PD’s from all over the state to train together and share ideas. It also has a separate office for handling capital cases that has had an amazing record since its formation. It needs to stay. But the Nichols case is a constant excuse for the legislature to cut back on funding instead of giving more. They express concern that one case could “sink” an agency and wonder why we really need PD’s anyway. So far, no one has stepped forward to stand up for the defenders of Georgia. At least Nichols has a scrappy defense team. Georgia Public Defenders don’t even appear to have their own agency backing them up, not to mention anyone else.


3 Responses to “All You Ever Needed to Know About Nichols”

  1. Gideon said

    Excellent, excellent post. Thank you very much.

  2. Audacity said

    A jury consultant?

    Nichols’ defense team is pissing me off more and more every day.

  3. […] Maggie at Of Counsel has done a wonderful job summarizing Georgia’s indigent defense problems in the Nichols capital case in this post. […]

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