Organize the South

The case of Brian Nichols, who is to be tried for escaping and killing four people, including a judge, may cost Georgia more than money.

The suggestion being made by legislators that the presiding judge should be impeached because of unpopular rulings is a serious threat to judicial independence and the rule of law.

John Spink/Staff (ENLARGE)

Defense members Penelope Marshall (left), defendant Brian Nichols and attorney Jacob Sussman listen as jury selection gets underway. One of his four attorneys is working for free and a second has slashed rates.

(ENLARGE)

Stephen B. Bright is president and senior counsel of the Southern Center for Human Rights in Atlanta.

The case is damaging the state's new public defender system, which was given $4.5 million to provide lawyers to defend capital cases — a job that would cost over $12 million even without an extraordinary case like Nichols.

And with the case has come a return to old-time demagoguery in which legislators do not provide the public defender agency the money to do its job and then berate it for not being able to do it.

A committee of the Georgia House of Representatives is supposedly investigating spending for defending Nichols and considering recommending the impeachment of the presiding judge.

However, any responsible legislative investigation would not take place until after the trial and it would include the expenses of the prosecution as well as the defense. The district attorney is spending far more in prosecuting Nichols than his lawyers have spent defending him.

As Judge Hilton Fuller has observed in orders regarding funding for the defense, the cost of defending the case is influenced by what the prosecution spends on various experts, such as a doctor from Connecticut, the number of witnesses it plans to call (possibly as many as 400 in a case that could be proven with 10), and the scope of the investigation conducted by the FBI, the Georgia Bureau of Investigation and other law enforcement agencies.

It has been suggested by legislators and even one judge that the expenses for the defense of the case approved by Fuller are excessive. But their criticisms are uninformed. None of them know what expenses have been allowed and the legal reasons for allowing them.

The critics and the Fulton County District Attorney want to treat the Nichols case like any other case. However, it is an extraordinary case that requires lawyers with the time and ability to defend it and the payment of expenses necessary for it to be tried fairly.

Lawyer must be capable

Everyone may not agree that a person who cannot afford a lawyer to defend himself at a death penalty trial should be provided one by the state. But the courts have held that the constitutions of Georgia and the United States require it. Like it or not, agree or disagree, trial judges must follow the law. Critics have the luxury of ignoring the constitutional requirements. Judges do not.

The right to a lawyer would be meaningless unless the lawyer is capable of defending the case. A lawyer capable of handling a drunk driving case may not be able to handle a death penalty case. And even lawyers capable of handling some death penalty cases may not be able to handle an extraordinary case like the Nichols case. Two lawyers may be enough for most penalty cases, but four defense lawyers may be required for the extraordinary case, just as five prosecutors may be required.

Both the U.S. Supreme Court and the Georgia Supreme Court have held that a defendant must be provided funds for expert witnesses, investigation and other expenses that are necessary for a fair trial. Both courts require trial judges to rule on whether such expenses are to be allowed only after considering a detailed showing by the defense lawyers that such expenses are required for a fair trial. That showing may require the defense lawyers to reveal to the judge attorney-client communications and other confidential information.

The applications and the rulings regarding expenses are not made public until after trial. The reason is fairness. Otherwise, people with court-appointed lawyers would be forced to reveal confidential information and their strategies to the prosecution. A person who hires a private lawyer is never required to disclose this information. Requiring those who cannot afford lawyers to disclose confidential information and their strategies would be contrary to the most basic notions of equal treatment of people accused of crimes.

Alday case a warning

It is impossible to say whether Fuller has been right or wrong in his rulings or whether other judges would have treated them differently without knowing what expenses he has approved, which he has denied and the reasons for his rulings.

The same criticisms that are now being made regarding the Nichols case were made with regard to the expenses for the defense of Timothy McVeigh in the Oklahoma City bombing case. McVeigh was provided a team of highly respected and well-paid lawyers as well as funds for experts and other expenses. Federal Judge Richard Matsch refused to make public his rulings for funds for McVeigh's defense public despite clamor from politicians that he do so. McVeigh's trial was ruled a fair one, and he was put to death.

Those who would rush Nichols to trial without paying the expenses necessary for a fair trial are willing to risk the case later being reversed if appellate courts find that he did not get a fair trial.

The last time a Georgia judge treated an extraordinary case like Nichols as just another case and tried it on the cheap, it took a lot longer and cost a lot more than it should have. That was the prosecution of three people who escaped from a prison in Maryland, fled to Georgia and killed six members of the Alday family in southwest Georgia.

The local judge appointed local lawyers over their protests and denied a change of venue. The three were swiftly convicted and sentenced to death. But 11 years later, the federal courts reversed the convictions for denial of a change of venue, one of several denials of fairness in the cases. The cases had to be tried again.

The second time, a different trial judge appointed lawyers from throughout the state with experience in defending capital cases to represent the defendants, paid the lawyers for their work and ordered adequate funding for experts and investigation.

All three were convicted and one, Carl Isaacs, was sentenced to death. (The other two were sentenced to life imprisonment, showing that competent lawyers and fair trials make a difference.) All the convictions were upheld on appeal and Isaacs was executed in 2003. It would have made more sense to do it right the first time. And Isaacs would have been executed at least 15 years earlier.

Trial could be reversed

The Nichols case, like the Alday case, is an extraordinary case — the kind we wish never occurred, but unfortunately they do, every 30 years or so. They cost more to prosecute and to defend.

The district attorney, Paul Howard, is certainly treating the Nichols case as an extraordinary case, assigning more members of his staff to prosecute it than other murder cases and spending more on it than on other cases. Any judge presiding over the case must recognize reality and treat it as an extraordinary case to defend.

If lawyers, experts and expenses are not paid to secure a fair trial for Nichols, one of two things will happen. The trial may be delayed until funds become available because there is no point in having a trial without the investigation, the expert witnesses and the other things the court has ruled are necessary for a fair trial. By definition, the trial cannot be fair. The other alternative is to conduct a trial, get verdicts that will be reversed later and have another trial in 10 or 15 years.

If the case is reversed, it will not be on a "technicality." The right to a fair trial, guaranteed by the constitutions of Georgia and the United States, is not a "technicality" any more than the right to free speech is a "technicality." A fair trial is the most basic difference between a fair judicial proceeding and a lynching, between the rule of law and the rule of the mob.

Case could damage system

It has been suggested that the lawyers in the Nichols case are making it more expensive than it should be in order to discourage the prosecutors from seeking the death penalty. If that is so, they are going about it in an odd way. One of the four defense lawyers is a distinguished former federal defender for Delaware, who is working on the case for free. Another defense lawyer has voluntarily reduced his hourly fee from $160 to $125 and then to $95.

Lawyers do not normally work for free or for such reduced rates. (It is easy to verify this — call any law firm in Atlanta and see what kind of legal services you can get for $95 an hour.) I am not aware of any members of the prosecution team who are working for free or who have voluntarily reduced their salaries in order to save the state money in its prosecution of Nichols. Nor am I aware of any expert witness on either side who has volunteered his or her services to save the state and county money. Only two of the defense lawyers are doing that.

The problems that have been encountered in the Nichols case may have been anticipated by Fulton County District Attorney Lewis Slaton and may have contributed to his decisions not to seek the death penalty for Wayne Williams for the Atlanta child killings in the 1980s.

Slaton was a tough prosecutor and highly respected. He continued to serve as district attorney long after Williams was convicted and sent away. The courthouse is named for him. But with his office came a higher responsibility than playing to the crowd at the expense of the court system and the community. He put Williams behind bars, punished him for what he did and protected the community without the damage to the system that the Nichols case is causing.