FAIR PLAY / SUBSTANTIAL JUSTICE

Nichols sentenced to life in prison

Posted in Uncategorized by Ryan Locke on December 13, 2008

Brian Nichols’s jury deadlocked today, meaning that the maximum sentence he can receive is life in prison rather than death.  Nichols escaped from the Fulton county courthouse in 2005, killing a judge, court reporter, and Sheriff’s Deputy in the process.  He executed a Federal agent in north Atlanta before taking Ashley Smith hostage in her apartment in Duluth.  She gave him methaphetamine and read The Purpose-Driven Life to him and eventually was able to call the police.  Twenty-six hours after he escaped, Nichols surrendered.  Wikipedia explains exactly how he escaped and his subsequent flight in horrifying detail.

I’m especially interested in Nichols’s case because I’ve worked in the Fulton county courthouse — reading the play-by-play from the link above is especially visceral when you’re familiar with the setting — and because his prosecution turned into a financial nightmare and a political issue for Fulton county and the state of Georgia.

Here’s how public defense works in Georgia. If you commit a felony and can’t afford an attorney, you get a free one.  Each judicial circuit has an Office of the Public Defender, and they’re all managed by the Georgia Public Defender Standards Council (a couple circuits have opted out of this system, but that’s not really important here).  If your crime qualifies you to be sentenced to death, then your free attorney comes from the Office of the Georgia Capital Defender.  This office was created in 2004 during an overhaul of Georgia’s public defense system meant to equalize the quality of representation across counties.  Georgia has 159 counties, so this was a challenge (Only one state has more: Texas, with 254).

Back to the Nichols drama. He couldn’t afford an attorney, so he got four free ones from the Georgia Capital Defender.  Unfortunately, one of those four couldn’t actually practice law in Georgia (awkward!  I’m guessing that attorney moved from some other state and didn’t realize how restrictive Georgia is about reciprocity, but that’s just a guess).  The judge yanked control of Nichols’s defense from Georgia Capital Defender — in essence firing Nichols’s four public defenders — and hired four new attorneys.  The new attorneys charged $175 an hour (half of his normal fee!), $125 an hour, and $95 an hour.  The fourth attorney was a state employee (free!).

The case begins to derail $1.4 million later when the public defender system runs out of money.  This upsets some people.  State Senator Preston W. Smith, a Republican and chairman of the Senate Judiciary Committee, said the defense was “spending money like drunken sailors on shore leave” to provide an “O. J. Simpson-style defense, all on the taxpayer’s dime.”  The chairman of the Public Defender Standards Coucil responded: “The Nichols case could have been ended millions of dollars ago if the D.A. had been prepared to accept life without parole…you can’t fault the defense for trying as hard as they can to save a man’s life.”

Anyway, the most expensive death penalty prosecution in Georgia history failed.  Here’s my take on the whole thing:

1.  This case is a prime example of poor prosecutorial discretion because the state didn’t bargain. I have mixed feelings about the death penalty.  I don’t oppose it, but I don’t think that it’s impartially applied.  But even in situations when it should be applied (and killing a judge, deputy, and Federal agent is a clear case for the death penalty) sometimes it’s better to go for the bird in hand.  From the comments above, it seems like Nichols would have plead guilty to life.  Millions of dollars later, Nichols was sentenced to life.

The original judge on the case recused himself because he said in The New Yorker that Nichols’s only defense was insanity because everyone in the world knew he did it.  Although stupid to actually tell someone, the judge was right.  You can’t ambiguously execute two people in a courthouse.  If you read the play-by-play, it’s clear that the state would have no problem proving that Nichols, at the very least, killed three people in the courthouse.  That means the state has an excellent bargaining position.

So why didn’t they offer life without parole?  Because (1) this case was too juicy, and (2) the District Attorney is elected.  This case is great for a soapbox, excellent as an example of being tough on crime, and so on.  I mean, four people are dead — including a judge executed on the stand and a Federal agent murdered in his own home — and Atlanta is breathless after experiencing its largest manhunt in recent memory.  It’d be hard to find someone who wouldn’t be clamoring for the death penalty.  But cooler heads must prevail eventually.  When the District Attorney realized he could plea this out for a life without parole sentence, he should have put his lawyer pants on and made the deal.

Did the victims’ families deserve a case for the death penalty?  Maybe.  Would it have been worth millions of dollars to sentence Nichols to death?  Probably not.  Honoring the dead shouldn’t bankrupt the Georgia Public Defender Standards Council and Fulton county.

The decision to proceed cost more than tons of money.  It also affected the 72 cases the Capital Defender was handling when it ran out of money.  How many corners were cut or less effort was expended on those cases because the Capital Defender didn’t have the money to investigate or to pay its attorneys?

Bottom line: the state should have offered life without parole.  Expensive mistake.

2.  The the state overreached with its indictment. So, the three murders were in the bag.  The state chose to indict Nichols with 54 counts of various crimes — that’s worse than a law school exam problem!

Why does this matter?  Think about the work generated by each count.  Take the first two murders of the judge and court reporter.  The state and defense have to interview all the eyewitnesses and examine all the physical evidence, the state has to prep the witnesses they plan to call, the state and defense have to run background checks on those witnesses and prepare directs and crosses and whatever evidence they want to use, and the court has to spend time listening to and recording their testimony. Now do that over and over and over again to satisfy all the counts.

The farther away from the courthouse and Federal agent’s house, the more trivial the crimes become — like, do we really need to prosecute Nichols for all five carjackings he committed during his escape?  Is that a cost-effective use of state and judicial resources?  If the state can lock in a life sentence without expending vast amounts of resources to pursue 54 counts, isn’t that a more responsible choice than making a multi-million dollar gamble for a death sentence?

Also, the political fallout for how much the trial costs falls disproportionately on the public defense system.  Not many people complain that the state should have saved money by not charging 54 counts, but lots of people complain that the defense is wasting money.

3.  If you can’t get a death penalty sentence in Georgia, something went wrong.  Georgia has the sixth-largest death row of all the states (Suprise number one: California, with 667 inmates on death row).  Georgia’s the state of Troy Davis, found guilty in 1991 of killing a Savannah p0lice office.  After the trial, seven of the nine key prosecution witnesses recanted their testimony.  That’s a fancy lawyer word that means they were lying at trial.  Still, the Georgia Supreme Court upheld the verdict 4-3.  When the U.S. Supreme Court was considering hearing an appeal, the state tried to schedule Davis’s execution before the Court could meet to discuss the petition.

My point is that Georgians love them some death penalty.  If the state couldn’t get one on Nichols’s facts, someone made a few poor decisions somewhere during the prosecution.

4.  Is the era of liberally seeking death penalties over because of the cost? This issue isn’t confined to Georgia.  A recent study by the Urban Institute found that death penalty has cost Maryland taxpayers at least $186 million more in prosecuting and defending capital murder cases over two decades than would have been spent without the threat of execution.  The study estimates that the cost of reaching a single death sentence costs the state an average of $3 million, which is $1.9 million more than a non-death penalty case costs, even after factoring in the long-term costs of incarcerating convicted killers not sentenced to death.  How-much-does-the-death-penalty-cost studies have never before statistically controlled for factors that might make a death penalty case more expensive, which is why I like this study.

The cost disparity between death penalty cases and non-death penalties is equally as stark on the federal level.  Taken from cases between 1990 to 1997, the average cost for a death-penalty-eligible case where the Attorney General sought the death penalty was $218,112.  The cost per case dropped to $55,772 when the AG didn’t seek the death penalty.  Even if the case ends up not going to trial, a guilty plea in a death penalty case still costs $192,333 (if the case goes to trial it costs $269,139).

The cost is too much for some states.  Last year, the Colorado House Judicial Committee voted to abolish the state’s death penalty because of cost.  Colorado has spent $40 million in three decades to execute one inmate and put two others on death row.  Although a majority of Coloradoans would support abolishing the death penalty and using the saved money on investigating cold cases, the bill failed.

In conclusion, the state tried to reach for a death penalty verdict and got burned to the tune of millions of dollars.  Let’s hope this makes them consider seeking the death penalty a little more carefully.

UPDATE: Nichols was sentenced to four consequtive life sentences without parole.  Also, CNN confirms what I thought: Nichols was ready to take a plea, but the Fulton county DA wouldn’t take the death penalty off the table.

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