Atlanta Injury Law Blog

Justice delayed is justice denied.  Brian Nichols is charged with escape when he overcame a deputy and took her gun, and with the murders of Judge Roland Barnes in his courtroom at Fulton County Superior Court, a court reporter also in the courtroom, a deputy sheriff outside the courthouse, and a federal officer several miles away. The judicial gridlock in getting him to trial is increasingly a blot on the justice system in Georgia and a drag on the operation of courts in Fulton County.

There is plenty of blame to go around.

The Sheriff's office provided inadequate security at the courthouse. For years I had thought how easy it would be for a desperado to grab a gun from an out-of-shape deputy in that courthouse and wreak havoc.  Just as I was not surprised that the planes that hit the World Trade Center on 9/11 came out of Logan Airport in Boston (another story), I was not surprised that a criminal took a gun from a deputy sheriff in the Fulton County Courthouse.

The appointed defense counsel probably did intend to break the indigent defense funding system by running up the cost as a way to undermine death penalty prosecutions generally.

The legislature did underfund the statewide indigent defense system, so that there was no wiggle room in the budget for any high profile death penalty prosecutions, and then some played politics when the funding crisis arose.

The Fulton County District Attorney's office appears to have complicated the case more than necessary.  My experience as a prosecutor was a long time ago in a smaller jurisdiction (the old Tallapoosa Judicial Circuit which then included the counties of Douglas, Haralson, Pauling and Polk). Perhaps in part because we didn't have the staff and resources to make things unduly complicated, we learned the "K.I.S.S. principle."    I don't think it was necessary to complicate the Nichols case by listing 400 witnesses and 40,000 pages of documents. 

If the trial lasts a week, the jury views him as a monster.  If it lasts a couple of months, they begin to get comfortable with him, perhaps feeling almost that he and they are cellmates, fellow travelers is a procedure dragging on far too long.

When I was an Assistant DA out in the country, we might have put the most notorious few counts on a separate indictment, limited the witness list to about 40 or 50 witnesses, and used the stuff outside the courthouse as evidence of related offenses. That would have avoided a lot of the problems of spiraling defense costs and delays.  We probably would gotten the case to trial within six months, or a year at the outside, and would have completed the trial within a week or two.

So what is the solution now?

The judges of Fulton Superior Court have all recused themselves.  They can't intervene without creating another issue for appeal

The legislators can't take any action other than funding the defense that would not create another issue for appeal.

Perhaps the District Attorney could withdraw the indictment, break the case into smaller pieces on separate indictments, and go to trial on a slimmed-down case.

At the same time, perhaps the legislature could come up with adequate funding for the indigent defense system including defense of capital cases.

Just my two cents.

Nearly 30 years ago, my first job out of law school was as an Assistant District Attorney,  prosecuting both felony and misdemeanor cases in a four county circuit.   In that job I successfully prosecuted cases that included: Murder,Voluntary Manslaughter, Involuntary Manslaughter, Vehicular Homicide, Armed Robbery, Burglary, Aggravated Assault, Arson, Embezzlement (Theft by Taking), Rape, Child Molestation, Assault and Battery, Cruelty to Children, Drug violations, Forgery, and Driving Under the Influence (DUI)

After leaving the District Attorney's office, for several years my practice was predominantly criminal defense trial work.  During that time I completed the National Association of Criminal Defense Lawyers National Trial Practice Institute. Defending citizens accused in the full range of state criminal cases which I had previously prosecuted, I won acquittals or other favorable resolutions in all cases except those in which a family member of the defendant voluntarily testified for the prosecution.

Just when I was hitting my stride as a criminal defense lawyer, for personal reasons I made a decision to join a law firm in Atlanta that defended civil cases for corporations, governments and insurance companies. In recent years I have focused primarily on representation of plaintiffs in civil injury and death cases.  However, I have had a continuing interest in the criminal justice system, occasionally defending a criminal case related to a civil case. 

Now I very selectively accept criminal cases to defend citizens who are wrongly or excessively charged with violations of criminal statutes.  The same advocacy skills and technologies used to win a favorable verdict in a civil case can be used to uphold the presumption of innocence and establish a reasonable doubt of guilt in defense of a citizen accused of a criminal offense.

Why subject myself to the stress of criminal cases?  Well, I'm not a "one trick pony."  I enjoy the challenge and tension of a criminal trial.  Why not include in my trial practice something that I have been good at and have enjoyed doing?