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.
