Of Counsel

Legal Notes on Georgia and The South

Today’s Nichols Update

Posted by Maggie on January 14, 2008

You may have noticed over the past few months that I’ve taken to defending Judge Fuller quite a lot. Part of this is my inability to stand idly by when I think someone is too harshly criticized. And part of it is my gut feeling that Judge Fuller is acting appropriately. (I can’t be sure, of course, since I’m not counsel and don’t know all the inner workings.)

You may remember back in December, the Legislature asked Fuller for records of defense spending. He responded by sending only public records and didn’t unseal any other information.

Today, the Daily Report has Judge Fuller’s written response to Representative Fleming. (They have a pdf of the letters, but the link isn’t working right now, so I’m working off the article’s quotes.)

Fuller seems to lay things out methodically. First of all, it was the prosecutors who requested the Capital Defender’s Office be taken off the case and outside attorneys be appointed. And it was GPDSC who brought the attorneys into the case and determined their rates of pay. Fuller was the one who signed off, as a Judge always does in such motions and orders, but wasn’t the one making decisions.

Fuller also disputes the commonly cited figure of $2 million in defense expenses. According to the defense, it’s more like $1.2 million. The other figure includes salary for Parker (a former GPDSC attorney who represented Nichols for a period before withdrawing for health reasons), his assistant, and rent on an office.

Finally, Fuller refuses to let Fleming and his posse pin this all on the defense. He reminds them that the prosecution is the one who’s taken an extraordinary case and made it even more difficult and extraordinary. 400 hours of phone calls. 40,000 pages of documents. 478 witnesses. FBI, GBI and law enforcement at their disposal. While Fuller “applaud[s]” the DA’s office for doing it’s job, he acknowledges that the defense has to be appropriately able to respond to these actions by the prosecution.

The Daily Report brings in one person to respond to this situation, PACGA executive director Richard Malone. (PACGA is the Prosecuting Attorneys’ Council of Georgia.) I’m curious why they chose him instead of a defense attorney. And instead of responding to the issues addressed by Judge Fuller, Malone attacks the Capital Defenders, claiming they’re attempting to do away with the death penalty all together. (Perhaps he says this because they have successfully pleaded dozens of defendants guilty in return for not seeking the death penalty. Heaven forbid we save the incredible expense of putting a man to death.) Malone says he’s tried death penalty cases with multiple victims and says, “That’s a lot of money.” He also says the defense is out of line.

The article as a whole puzzles me. The response by Malone is off-topic in many ways, and he’s doing exactly what Fuller is criticizing: judging without knowing or considering the facts. I can’t think in any of my readings on the Nichols case of an article that brought in any defense attorney who had tried a similar case to respond to the issue. In fact, the only thing I can think of is Nichols’ defense counsel themselves who addressed the cost in a court hearing by comparing to other high-profile complex cases.

I’m getting a bit tired of hearing the same thing over and over again without ever having an intelligent discussion of the issues. The discussion of the general health of GPDSC is too often tied into the Nichols case. While they overlap, they are still separate problems and need to be dealt with with care and thought. I’m concerned that the legislature is going to take steps that hurt both the Agency and the Nichols case.

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