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Archive for the ‘Nichols’ Category

Today’s Nichols Update

Posted by Maggie on March 12, 2008

Another article in Creative Loafing, the alternative weekly newspaper, on Brian Nichols. A definite must-read. The story outlines clearly the history of indigent defense in Georgia, why a new system was needed, how the new system works, and then outlines just how we got where we are. Of particular note is the often ignored issue of legislative funding. Here’s a taste with quotes from former GPDSC Director Michael Mears and Emmet Bondurant, GPDSC’s first Council Chairman.

During the 2005 session, the General Assembly routinely approved a $42 million budget for the public defender system for the 2006 fiscal year. Then, in the 2006 session, it took back $5 million from the original allocation.

Mears says legislative leaders told him not to count on receiving all the money generated from the new court fees that were put in place to fund the public defender system. “I was in total shock,” Mears says. “It was like the system was being dismantled almost as soon as it was put together.”

While the amount collected from court fees intended to fund the indigent-defense system has risen every year, the amount allocated to the public defender system has dropped, and lawmakers have dipped into those funds for other purposes.

“The whole idea and the justification for the fees was sold to the public, the Legislature and the bar as a way to finance the state’s contribution,” Bondurant says. “The whole premise was that it was there for indigent defense. It’s dishonest and disingenuous to bait and switch.”

It also looks at the current situation of GPDSC as a legislative target. They attack GPDSC in part because on the ground they’re doing a good job and have effectively killed the death penalty in Georgia since the Capital Defenders took over.

Lots of quotes from friend-to-the-defense Stephen Bright and former State Republican Senator Charles Clay, who introduced GPDSC’s founding legislation. I know I am often quite hard on GPDSC, but it’s because when you read things like this you realize just what potential they have. While in many ways they are a lame duck agency, unable to set their own funding or force the legislature in any way, I stand by my repeated requests that they act as more of a driving voice for indigent defense and defenders.

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Nichols Trial Date Set

Posted by Maggie on March 10, 2008

At today’s hearing, Judge Bodiford set Nichols a trial date of July 10. The prosecution wanted June while defense requested September. Judge Bodiford, still pretty gung-ho, plans to have 9 1/2 hour days and Saturdays to get through the trial by Christmas. (Don’t even get me started on why it’s necessary for this trial to take 6 months.)

It also looks like the defense’s efforts to find a new location to try the case may have new hopes. The Russell federal courthouse, just down the street, has been under construction which was the basis for their refusal to accept taking the trial. The construction is now completed and Bodiford is going to see about getting it moved there. If it’s not accepted, Fulton County needs to start doing some serious negotiating to find a new location.

And for those who are counting, tomorrow marks 3 years since the courthouse shooting spree Nichols has been charged with.

Update: More press today. The Daily Report expands its coverage and talks to the Russell federal building staff about the possibility of a move. The AJC writes about the family of Brian Nichols and other victims in the case as trial approaches.

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Today’s Nichols Update

Posted by Maggie on March 7, 2008

So yesterday was the hearing where we were supposed to find out what’s going to happen to defense counsel. It looks like Judge Bodiford got his way and GPDSC and the defense team have worked out a deal.

The Capital Defenders are allowed to reenter the case. Specifically, Josh Moore, who was previously assigned to Nichols before the conflict, has been added to the team. It also appears that Capital Defenders will be providing administrative support to help reduce outside expenses.

Two other members of the team have accepted changes to their appointments. Attorney Robert McGlasson will change from an hourly fee to a salary similar to the Capital Defenders. And attorney Jacob Sussman, that GPDSC was trying to oust, will be relegated solely to part-time work and will not be present for court proceedings. It looks like everyone’s on board. And it looks like this will lower the expected trial expenses such that they can set a date.

One particular issue of note. Judge Bodiford did not order GPDSC to pay the Nichols team their owed fees right away. Here’s a quote from the order:

The Court is aware that a very significant arrearage exists with respect to past due attorneys’ fees and expenses for the attorneys of Ferguson Stein Chambers and Mr. McGlasson appointed in this case, and the Council has acknowledged that fact. Likewise, the Court is aware that substantial past due amounts are owed to other private lawyers across the State of Georgia who are provided representation indigent defendants, growing out of the current funding crisis besetting the Council. The Court concludes that it is inappropriate to order the Council to pay the past due amounts to attorneys in preference to the past due amounts owed to other appointed counsel throughout the state.

I think this is a wise move by Judge Bodiford. There are a lot of people with outstanding balances that GPDSC needs to pay. And a lot of people already feel like the Nichols case is taking over the system. Hopefully the compromise will work.

There will be another hearing Monday where Judge Bodiford expects to announce a trial date. However, it still looks like keeping that trial date will depend on GPDSC getting the appropriate funding from the legislature.

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Today’s Nichols Update

Posted by Maggie on March 5, 2008

It’s shaping up to be a massive day for legal news in Georgia, so I’m going to start off with my ongoing Nichols coverage. A hearing was held last week, another was held Tuesday morning, and another is set for tomorrow. Looks like Judge Bodiford is sincere in his efforts to move the case forward.

Yesterday’s hearing sounds like a version of the hokey-pokey. Let the media come in. Kick the media out. Bring the media back in. Take them out again. Several times the media were excluded from arguments on various issues. A few main issues were addressed.

First, the release of records regarding defense funding to the public. It appears Bodiford has agreed to release at least some documents over defense counsel’s opposition. They’ve been given 15 days to appeal the judge’s ruling and a temporary stay is in effect until that time expires.

Second is GPDSC’s request to remove one member of Nichols’ defense team to cut costs. They’ve proposed this for a little while now. Judge Bodiford promised a ruling on Thursday, though he made it clear he’d prefer for that to be worked out privately between defense counsel and GPDSC. GPDSC claimed that 4 attorneys was more than enough. This, of course, ignores the fact that there are 5 DA’s on the case.

Finally, Judge Bodiford asked each side to make up a list of motions that need to be considered. Among these appears to be the possibility of finding another location for the trial. The article notes that the defense opposes a change of venue that would use a non-Fulton jury. I understand their rationale. Despite how close to home the case comes, they’ll likely get a more sympathetic jury in Fulton than elsewhere in the state. No one’s mentioned a possibility for the new location.

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The Future of Indigent Appeals

Posted by Maggie on March 3, 2008

The Daily Report has a follow-up today (subscription req’d) on last week’s Georgia Supreme Court ruling requiring GPDSC to provide outside counsel for appeals that assert ineffective assistance of counsel.

This throws a wrench in the works for the current budget crisis, as it’s possible that there could be a whole set of new appeals coming their way. While this worries me, I have to admit that I don’t feel too sympathetic on this particular issue. Whoever thought they could get away with a policy of having trial counsel claim their own ineffectiveness deserves whatever repercussions come their way.

The article discusses particularly the overlap between Garland and the new legislation about conflict counsel. HB 1245 has a neighboring PD office take over conflicts when feasible, with contract counsel as backup. Passing off cases to a PD’s office I can see as frustrating, but passing them appeals is worse. Most PD’s offices in Georgia aren’t equipped with any kind of appellate division and the ability to appeal your cases is pretty limited to your own time and resources. And I’ve long thought that our switch away from salaried conflict offices is a big problem.

GPDSC actually comments in this article. We hear from Council member Don Oliver and director Mack Crawford. The enlightening information came from Operations Director Nolan Martin. Martin was the one organizing the Conflict offices where salaried attorneys would handle conflicts in neighboring circuits when they arose. Especially with the new appeal issue, they could definitely fill a niche if we kept them around. But with budget cuts, they were the first to go. It sounds like Martin wants to bring them back.

Martin, who has worked for more than a year to put together a regional system of conflict offices to handle such cases where the local caseload warrants one, worried that shifting emphasis to a “one-size-fits-all” contract system for private attorneys will be more expensive than providing salaried, dedicated conflict attorneys.

Martin provided figures showing a more than 50 percent reduction in conflict cases assigned to private attorneys from 2006 to 2007 and said that the council’s efforts to winnow out and assign such cases in house whenever possible had cut the costs of such cases from $11 million to $9 million.

But, he warned, the Legislature’s proposal could hike that figure up to $12 million or $14 million.

Another issue GPDSC seems concerned about is the new spending outlines for capital cases that gives GPDSC the burden until a certain point. Then counties will have to share in the cost. Dan Oliver worries this will hurt Circuit PD’s and their ability to get funding from counties. I think if that happens, everyone is missing the point. I’m actually okay with the county-supporting-capital-cases idea. Why? Because the decision to impose capital punishment is very dependent on the county doing the prosecution. The DA needs to be accountable to the taxpayers and make decisions about seeking the death penalty with the understanding that it’s a situation where taxpayers would support the potential extra cost. I see this as a situation where the prosecution should be coming under scrutiny rather than the PD. Nichols is a perfect example of how defense spending is a result of and a response to prosecution strategy.

The article ends with Crawford saying he’s confident funding will come through the legislature. I am, too. But I expect the struggle to continue into 2009 and potentially for years to come unless everyone involved gets their act together. (I’m talking to you, Senate.)

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Nichols Civil Suit

Posted by Maggie on February 29, 2008

Nichols hasn’t been the only one in hot water since the shootings in 2005. Several victims have sued the Fulton County Sheriff. There are a lot of potential reasons for liability. Nichols, a large young male, was monitored only by a female deputy, while preparing for court. His initial escape was due almost completely to his ability to overpower the single deputy. Then there’s the additional problem: two people were killed in a courtroom where court was actively in session. No deputy was present, even though it’s a state law requirement.

There was a hearing yesterday and it sounds like quite the circus. Six plaintiffs, nine defendants, and “more than two dozen attorneys.” The big issue was what kind of actions the Sheriff was using at the time. If their acts were discretionary, they’re shielded from liability, but not if they were ministerial.

To me, it seems pretty cut and dry despite defense’s arguments. If state law requires particular action, it’s tough classifying that as anything other than ministerial duty. They’ve tried to claim that any variations from required action are discretionary, but I agree with one plaintiff’s attorney who said that would make any action discretionary. They also state that their policies are discretionary (it says so right there in the handbook!) but again, I don’t think it’s an issue of nomenclature.

Looks like the Sheriff is going to end up shouldering the blame, though the Judge hasn’t ruled yet. And I think it’s proper. Courtroom security has certainly improved since Nichols, it’s helped to step up all over the country by giving that reality check. But it’s also pretty apparent that proper action by the Sheriff could have affected, if not completely averted, the outcome of this terrible crime.

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Today’s Nichols Update

Posted by Maggie on February 28, 2008

Brian Nichols appeared in court today for the first time since October or so. It was Judge Bodiford’s first hearing on the case. He’s already set another one for Tuesday. Looks like he means it when he says he wants to get this case moving. Props.

He also says he’s going to reconsider Defense’s Motion to move the trial. I think that’s extremely smart. Fuller was holding out since they hadn’t found any other locations yet. The actual room the trial would take place in would be virtually identical to where the crime took place. It’d be in the same building. Jurors would be walking down the same halls. I can’t see how this wouldn’t be prejudicial and potentially a huge appealable issue.

No other specifics on the hearing, though I’ll keep tabs on stories that go up as the day continues. The only other note is that Gwinnett County has finally indicted Nichols–just before the statute of limitations–on charges including kidnapping and agg assault against Ashley Smith. Gwinnett County is where Nichols had his final standoff with authorities and eventually turned himself in. Gwinnett says they don’t intend to try him on these, but wanted to make sure they indicted in case there’s some reason to go forward in the future.

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Nichols Coverage

Posted by Maggie on February 27, 2008

It’s not exactly an update because nothing new has happened, but there is some coverage of Nichols today. (Thanks to StandDown Texas for catching this one. Creative Loafing isn’t on my normal list of sources.)

Creative Loafing, our local alternative paper, has a story on the Nichols case. It’s not surprising that their coverage is pretty critical of the State’s lack of adequate funding for indigent defense in general. (They quote Stephen Bright. But also add opinions from J. Tom Morgan, a former DeKalb prosecutor, and Charles Clay, one of the legislators who brought the indigent defense legislation through in 2003. All think that everyone needs to lay off and pay up.)

What I saw here that hasn’t received any attention that I’ve seen is this:

Senior Judge Hilton Fuller – who presided over the Nichols case until he resigned in late January – signed a secret court order in 2007 that earmarks all remaining state funding for death-penalty cases to the Nichols defense team.

Mack Crawford, executive director of the Georgia Public Defender Standards Council, which administers the death-penalty funds, let the cat out of the bag about that secret order when he testified in a court hearing in November that no money would be available for other trials until the end of June.

“There is a sealed order that I cannot discuss,” Crawford testified, according to a transcript. “If Judge Fuller’s order stands, all of the money I have available for the balance of this fiscal year would technically be embargoed or committed to that one case.”

Crawford declined to comment to CL, and Fuller’s order is so little-known that even Wilson Dubose, a Madison lawyer who chairs the council, expressed surprise when told of Crawford’s testimony.

Still, Bright points out that Fuller isn’t the only Judge who’s made this kind of order. Several other judges have demanded funds from the council to no avail. So my guess is GPDSC will do with the funds whatever it wants to, just like it always does.

And again, no surprise, Mack Crawford has no comment. Shocking.

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Today’s Nichols Update

Posted by Maggie on February 21, 2008

As I’ve mentioned recently, the Nichols updates these days aren’t coming from the court itself, where things are rather quiet. (I’m assuming lots is going on behind the scenes.) But the legislature is moving fast and furious to make sure Nichols never happens again. (Ignoring the fact that statistically speaking, it’s pretty unlikely we’ll have a set of circumstances this insane again ever.)

The Daily Report covers the story and has links to all the House Bills.

First, HB 1251 addresses payment limits for appointed counsel in death penalty cases. It sets up a payment split between GPDSC and the county, with GPDSC bearing most of the initial burden, and splitting the costs at a set amount after spending reaches certain amounts. The bill makes sense, though it’s only ever going to apply to a handful of cases, and should prevent any litigation between the State and County agencies about funding.

Under HB 1252, Senior Judges (such as Judge Fuller) will not be able to preside over capital cases. Senior Judges generally only sit in when needed and do so at an hourly rate of pay, which can make the expenses of trial for a county much higher. Again, makes sense and should prevent money squabbling. But again, only going to apply to a handful of cases. (Most counties would avoid appointing a senior judge in such a case anyway.)

And finally, HB 1253, which requires GPDSC to do the appointing of conflict counsel. The only point in this one I can see is that it keeps the Judge from doing the appointing. (Although it’s strange to see the House trusting GPDSC with appointments and costs when the Senate seems to find them completely untrustworthy on anything.)

While I think most of the State has learned from the problems of Nichols, I can’t really complain about the legislation. None of it is a direct attack, it’s more about prevention. It’s about assigning costs which haven’t ever really been specifically addressed. (Thus the litigation between Fulton County and the State about payments in Nichols.) It’s definitely a more even-tempered approach than the Senate’s approach to GPDSC.

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Today’s Nichols Update

Posted by Maggie on February 18, 2008

A story in the AJC yesterday talks about the ongoing questions surrounding the Nichols jury pool. Approximately $216,000 has been spent by Fulton County on jury-related expenses so far. That includes the cost of printing all the questionnaires, the jurors’ $25 per diem, transcripts, and postage.

The issue is that the jury pool was sworn in by former Judge Fuller in January, 2007. It’s now over a year later and not a single juror has been picked. This leaves open the issue of whether to continue with the same jury pool or not. And if you keep the same pool, then you have to make sure they’re all still Fulton residents and that their questionnaire answers are all still the same.

This seems to be an unsettled area of the law and no one has a real answer on whether you have to scrap the pool and find a new one. My gut says Judge Bodiford will bring in the former jurors and at least see what he’s got before getting a new pool in order. Especially since the price tag is more and more of an issue. But no word has come down at all on any issues, new or old, since Judge Bodiford’s appointment.

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