THE NICHOLS CASE: Failure to win death penalty resonates

The Atlanta Journal-Constitution

Sunday, December 14, 2008

If Brian Nichols doesn’t get the death penalty, who does?

That question is likely to resonate from the chambers of the Legislature to the halls of justice as lawmakers, lawyers and judges consider the implications from a multi-year, multimillion-dollar failed effort that will serve as a legal milepost.

The notorious case has set the stage for a renewed battle over capital punishment.

Within an hour after Nichols’ sentencing, Fulton County District Attorney Paul Howard and other proponents of the death penalty said they will push again for laws making it easier to send killers to death row when juries are conflicted.

But opponents will argue to judges that the case —- the most expensive in Georgia history —- is proof that the death penalty can never be administered fairly.

“An awful lot of money has been spent on this case,” said Stephen Bright, an Atlanta lawyer and nationally renowned opponent of capital punishment. “And for no purpose, except to have a show trial at enormous expense that has damaged Georgia’s court system in many ways.”

Even so, Bright expressed astonishment that three jurors did not vote for death in such a notorious case. “As Governor Blagojevich would say, that’s ‘bleeping’ amazing,” he said.

The holdout jurors enabled Nichols to avoid death by lethal injection. The effects of the deadlock will reach far beyond Nichols himself.

“If any case should get the death penalty, you’d think it would be this case,” said Richard Dieter, executive director of the Washington-based Death Penalty Information Center. “This may become one of those cases that say to the populace at large, ‘Why are we doing this?’ “

Dieter, who opposes capital punishment, said numerous capital cases cost millions of dollars and never result in an execution. “Spending money on the death penalty is like building a bridge to nowhere,” he said.

Everyone knew Nichols would spend the rest of his life behind bars. The only question was how he would die: naturally or at the hand of the state.

Encouraged by the families of victims, Howard refused to make a deal for anything less than death.

It took more than three years to get the case to trial. In the meantime, the soaring cost of Nichols’ defense —- estimated at more than $3 million —- ravaged Georgia’s public defender system. The cost of the criminal investigation and prosecution could equal or surpass that, legal experts say.

Marquette University professor and pro-death penalty advocate John McAdams said jurors who voted against giving Nichols the death penalty were disingenuous when they first agreed to be on a jury in a capital case.

“Members of the jury simply lied about their willingness to apply the death penalty when the facts merit it,” he said. “I can’t read it any other way.”

Under Georgia law, potential jurors must be dismissed if they are so opposed to the death penalty they could not vote for a capital sentence under any circumstance. The same is true for jurors who support capital punishment but say they could not consider a life sentence. Jurors can be seated, however, if they say that even though they have misgivings about the death penalty, they could still consider imposing it.

The Nichols jury had clear authority, under state law, to give Nichols death.

Georgia’s death-penalty statute allows a jury to hand down a death sentence if it finds at least one of 10 aggravating factors. Nichols’ jury found 11 separate aggravating factors, including killing more than one person, killing a law enforcement officer and killing a judge.

Former state House Majority Whip Barry Fleming (R-Harlem) agreed with Howard that the case shows an urgent need for nonunanimous jury verdicts in death cases. In recent years, Fleming proposed legislation to let a judge sentence a defendant to either life or death if a jury deadlocked at least 9-3 in favor of death. The bill did not apply to a jury’s decision as to guilt or innocence, which must be unanimous.

Fleming’s bill was amended to allow a judge to impose the ultimate sentence if the jury favored death by at least a 10-2 vote. But the legislation stalled in the Senate.

Of the 36 states with the death penalty, five —- Alabama, Delaware, Florida, Montana and Nebraska —- do not require unanimous jury verdicts for death sentences.

Rep. Tim Bearden (R-Villa Rica), a co-sponsor of the bill in the Georgia House, said he and others will reintroduce the legislation in the upcoming session in January. The new bill would require a 10-2 vote for death-penalty sentencing and require only an 11-1 vote for convicting someone of any felony other than murder. Bearden said the hung jury that spared Nichols a death sentence “is going to bring a lot of attention back on that bill.”

“I’d like to say I’m shocked,” he said of the sentencing verdict. “But I’m not. It just happens too often. So many times they make the perpetrator into a victim.”

McAdams, the Marquette professor, said most Americans will not change their positions on capital punishment because of the Nichols case. Opinion polls still show a majority of Americans support the death penalty, he said.

But getting a death sentence in Georgia has proved to be difficult for prosecutors in recent years.

Other than 2007, when Georgia district attorneys obtained six death sentences, no more than four capital sentences have been handed down here in any single year since 2001. In 2006, no death sentences were imposed in Georgia.

Still, it happens. At least three killers were sent to death row this year. Fulton County had its first capital sentence in eight years —- a triple homicide that included the killing of a toddler. DeKalb County had its first in 19 years, a triple homicide that included the death of two toddlers.

With prosecutors unable to get a death sentence in a case as aggravated as that of Nichols, defense lawyers predicted challenges will be raised in future capital cases. One claim will be that Georgia’s death penalty is being applied in a disproportionate and arbitrary manner. Nichols killed four people, including officers of the law, and he didn’t get death. Defense lawyers will argue any future defendants who killed fewer people or killed less heinously do not deserve it either.

Atlanta lawyer Tom Dunn, who handles death-penalty appeals, said he wasn’t surprised at the trial’s outcome because Georgia’s death penalty historically has been imposed so randomly. He predicted appeals to Georgia’s highest court.

“The Supreme Court of Georgia has avoided dealing with the randomness of being sentenced to death, highlighted by cases such as Nichols, by simply ignoring the many cases of death-eligible murder which do not result in death,” he said.

Atlanta lawyer Chris Adams, former head of the state’s capital defender office, said the Nichols verdict will affect courtrooms across the state.

“This case is going to have a lot of prosecutors stepping back and asking, ‘Is this a Fulton County issue or an issue I need to evaluate in my judicial circuit?’ ” he said. “Jurors all over Georgia are going to know about this case from Atlanta. It’s going to be an undercurrent that will make its way into a lot of deliberations in capital cases.”

Rick Malone, executive director of Georgia’s Prosecuting Attorney’s Council, disagreed. He said prosecutors will continue to seek the death penalty when they think a case merits it, as he believes the Nichols case did. He called it “perhaps the most egregious case we’ve seen in decades.”

He said District Attorney Howard had no choice but to seek the death penalty, and the decision was up to the jury. “There is not a DA in Georgia who would not have sought the death penalty on that case,” he said.

Graph compares Georgia with Nation, Years 1998-2008.

Georgia: 12
Nation: 306
Georgia: 9
Nation: 284
Georgia: 5
Nation: 235
Georgia: 1
Nation: 167
Georgia: 3
Nation: 169
Georgia: 1
Nation: 153
Georgia: 4
Nation: 140
Georgia: 3
Nation: 138
Georgia: 0
Nation: 121
Georgia: 6
Nation: 115
Georgia: 3*
Nation: ** 
Sources: U.S. Bureau of Justice Statistics, Office of the Georgia Capital Defender, The Atlanta Journal-Constitution 

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