On December 10, 2007, Brian Gene Nichols will celebrate his thirty-sixth birthday in jail pending trial on a fifty-four count indictment for murder, kidnapping, robbery, aggravated assault on a police officer, battery, theft, carjacking, and escape from law enforcement authorities. He has offered to plead guilty in exchange for a sentence of life without parole. As they say in court, the People (through the District Attorney) have declined the offer. The fact is that if there was ever a case warranting the imposition of the death penalty, this would be it.
On March 11, 2005, Brian Nichols was standing trial for rape and false imprisonment. Judge Rowland W. Barnes, a well respected jurist, was presiding. Julie Ann Brandau was his court reporter. After having his handcuffs removed, Brian Nichols overpowered a deputy and took her gun. He then made his way to Judge Barnes’ courtroom and shot him in the back of the head. Then, he turned and shot the court reporter. It was calculated and deliberate. As he exited the courthouse, Brian Nichols shot and killed Fulton Deputy Sheriff Hoyt Teasley. There are no real disputes about what happened.
On May 5, 2005, a Fulton County grand jury indicted Brian Nichols for the crimes he committed on March 11, 2005. The Fulton County District Attorney has indicated that he will seek the death penalty. Recognizing the absence of a meaningful defense on the merits, Brian Nichols’ legal defense team has focused on using the problems of the system to avoid an inevitable conviction and probable death penalty. So far, they have been very successful.
Last week, Judge Hilton Fuller indefinitely postponed Brian Nichols’ trial pending resolution of issues unrelated to Brian Nichols guilt or innocence. In reality, “justice” in the Brian Nichols case has been hijacked by a game of chicken between a judge and the legislature. Of course, Brian Nichols’ defense team is content to defer his day in court until someone blinks. After all, each passing day is another day that he serves the sentence Brian Nichols wants -- life without parole.
The crux of the impasse involves the right of a criminal defendant who faces the death penalty to effective legal representation. No one seriously contends that Brian Nichols is not entitled to counsel. On the other hand, no one seriously contends that Brian Nichols is entitled to the best lawyer in America or the most lawyers. In this context, the questions are how expensive a lawyer, and how many lawyers? Logically, the answer lies somewhere between the extremes of no lawyer and the most expensive group of lawyers available.
So far, the defense costs for Brian Nichols easily exceed one million dollars. In a case where there are so few facts in dispute, average Georgians find this a little more than excessive. Moreover, there is an additional complication.
Death penalty opponents now routinely advocate driving up the costs of defending death penalty cases as an effective litigation strategy for avoiding, and eventually repealing, the death penalty. Successes, like the one in the Brian Nichols case, and in other cases around the country, have only increased efforts to artificially inflate defense costs in the hopes that district attorneys, and states, will simply abandon their efforts to enforce the law as it exists. So, the question is how much of Brian Nichols’ defense costs are real, and how much are just tactical attorneys’ fees and costs as part of a litigation strategy to avoid the death penalty.
In the Brian Nichols case, the judge has insisted that Brian Nichols’ defense team be paid more with no end to the attorneys fees in sight and every reason by the legal defense team to claim as much as it takes to break the defense fund bank. The legislature, faced with the prospect of lawyers with an insatiable appetite for more, has refused to allocate more money to the fund which pays for lawyers for criminal defendants. The judge has said - no fees, no trial. The result - stalemate.
Many believe that it is only the defendant that is entitled to justice. They are wrong. It is justice for all. In that way, justice for all is a two way street - for the people and for the defendant. In the Brian Nichols case, stalemate means for the people - justice denied.