Steve Bright Editorial on Brian Nichols Case
Posted On Thursday, November 08, 2007 at at 10:07 AM by Dan
This is reprinted in full from the AJC. Thanks to Sara for sending it out.
By STEPHEN B. BRIGHT
Published on: 11/07/07
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 |
| 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. |
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| 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.
Angry About the Cost of the Nichols Case? Blame the Prosecutors!
Posted On Monday, October 29, 2007 at at 11:42 AM by Dan
Below is an article from the L.A. Times about the Nichols case. In it, House Speaker Rep. Glenn Richardson goes off about the cost of the defense. Those who follow state politics may recognize Richardson as a complete dumb ass. Of course, they would be right. Richardson is getting his butt kicked because he's promoting a stupid idea that will raise taxes.
In this case, however, Richardson is just jumping on the bandwagon. The fact is, there are two reasons this case is costing so much. One, it's a freakin' complicated case involving multiple jurisdictions, the federal government, and a huge media spotlight. Never mind that many of the folks who would usually be involved in the defense or prosecution in Fulton County could end up being called as witnesses. The second reason is the D.A.'s office. I firmly believe almost all problems with the criminal justice system are caused by either the legislature or the district attorneys. This case proves my point. The L.A. Times article has a paragraph (down towards the bottom of course) detailing how the D.A.'s office challenged one of the original lawyers, one who was on staff with the Public Defenders Standards Council. I don't believe the Council has even one backbone in the entire office, so they substituted all the lawyers with private (and costly) ones.
This is only one incident. Fulton County D.A. Howard, who never met a media frenzy he didn't like, has FIVE prosecutors on the case. Maybe he needs them, maybe not. But why isn't Richardson up in arms about those costs? Could it be because this case actually highlights what a dismal failure the legislature has done in funding public defense? That's not a problem with D.A.'s since they get a piece of almost all the action in the state, possibly including playground toughs taking milk money.
If the D.A. takes the death penalty off the table, the costs go way down. If he won't, then he should be blamed for the costs. If politicians want the ability to tramp human rights at will, they shouldn't complain that it costs a lot.
Costly trial puts heat on Georgia judge
By Richard Fausset, Los Angeles Times Staff Writer
ATLANTA -- Angered by the soaring cost of defending Georgia's most notorious murder suspect, state lawmakers said Thursday they would explore the possibility of impeaching the judge presiding over the case of Brian Nichols, the rape suspect who escaped from a courthouse in 2005 and allegedly killed a judge and three others.Critics say DeKalb County Senior Judge Hilton Fuller has mismanaged the high-profile death penalty case. They are particularly incensed that he has allowed attorneys hired by the state's public defender program to rack up more than $1.2 million in pretrial expenses and fees.
The case has come to a halt because of disputes about those payments.
"How many more millions will be spent giving Brian Nichols a defense that no one, including the taxpayers, could afford for themselves?" said Republican House Speaker Glenn Richardson in a statement. "There are serious questions about the poor handling of public funds that need to be addressed. The law provides the House that authority, and we intend to investigate the matter."
Richardson said he planned to appoint a special committee, headed by attorney and Republican state House Majority Whip Barry A. Fleming, to investigate Fuller's handling of the trial and whether there was an "abuse of the system."
It was a rare move for a state legislature, and one that could raise thorny separation-of-powers issues. But Republican state Sen. Preston W. Smith said he feared other death-penalty defendants would take Nichols' lead and find a way to run up costs, making it difficult -- if not impossible -- for the state to prosecute capital cases.
"I'm concerned that the judge's behavior is going to lead to the system, as we know it, being dismantled," he said.
Fuller, a veteran judge known for his attention to detail, could not be reached for comment Thursday. He volunteered to preside over the Nichols trial in neighboring Fulton County because the county's entire Superior Court bench had recused itself from the case.
Nichols escaped from a deputy at his rape trial in a Fulton County courtroom. He then allegedly fatally shot the judge presiding over a case, a court reporter, a sheriff's deputy and a U.S. customs agent. Nichols' alleged crimes, and the manhunt that followed, shocked Atlantans and was covered by international news outlets.
Soon after Nichols' arrest, the Georgia Public Defender Standards Council assigned a team of salaried defense lawyers to the case, but prosecutors raised issues about the standing of one of the attorneys with the State Bar of Georgia, and moved to disqualify the entire public defender's program from the case.
The council withdrew the original lawyers, and in an abundance of caution, assembled a new team that included three outside lawyers who billed by the hour. Fuller approved those rates, which are as high as $175 per hour, in July 2005. By last August, according to court documents, they had billed for more than $700,000 in attorneys fees and $200,000 in expert fees.
Two of the defense attorneys contacted by The Times declined to discuss the case. But their colleague, North Carolina-based Henderson Hill, has argued that the prosecutors are to blame for the trial's high cost.
Fulton County Dist. Atty. Paul Howard's office has assigned five assistant prosecutors to the Nichols case. They filed a 54-count indictment and submitted the names of 300 potential witnesses. Defense attorneys argue that they need a budget that allows them to mount a sufficiently vigorous defense.
Howard declined to comment for this story. But in court filings, prosecutors argued that the defense was trying to give the impression that the case was "too expensive to try and the State should just take a plea."
The case is taking a toll on Georgia's public defender system. The Legislature cut the system's budget for the public defender's council about 20% this year. It owes the three outside attorneys more than $160,000, and has declined to pay, despite an order from Fuller.
On Oct. 17, Fuller halted the case after two days of jury selection after the defense attorneys asked that the funding issues be resolved. Fuller ordered the council's director, Mack Crawford, to a hearing to determine whether he was in contempt of court. The hearing was postponed, and a new date had not yet been set.
richard.fausset@latimes.com
