But the legal battle over his sentence has now reached an impasse over the issue of paying for his defense. Nichols’s court-appointed lawyers have already spent at least $1.2 million, depleting the budget of the Georgia Public Defender Standards Council, which oversees the public-defender program (the state currently provides about $40 million annually to the council, and individual Georgia counties furnish another $60 million to $70 million to the total). With no more money available from the council, Nichols’s lawyers say they’ve recently had to start working for free. So they filed a motion to stop the trial until the state provides more money for Nichols’ defense. Last week, Judge Hilton Fuller granted the motion. The result: a showdown between Fuller and the Georgia State Legislature, which oversees funding for the council, and an increasingly strident public debate over what constitutes an adequate taxpayer-funded defense for an alleged murderer.
It’s an issue that’s cropping up across the country. Judges in different states have intervened in death-penalty cases because many states have refused to underwrite the cost of a constitutionally adequate defense, according to John Holdridge, the director of the American Civil Liberties Union’s Capital Punishment Project. “The problem is that politically it’s a very unpopular cause—the defense of people accused of crimes,” Holdridge says. “Politicians are constantly clamoring that they believe in the death penalty, but they refuse to pay for a fair system.” The states that are quickest to shepherd convicts into the execution chamber are also among those with the lowest-paid public defenders, Holdridge maintains. “Lawyers in most death-penalty states would be lucky to get a third of $165 [an hour],” he says, citing the standard pay for defense lawyers working in federal court (which is at the top end of the public-defense pay scale). “You get the defense you pay for.”
Prosecutors say that it doesn’t help them to square off against an underfunded defense. “It’s an adversarial system. It benefits the advocates on both sides to be prepared and adequately funded,” says Eugene O’Donnell, who worked in the district attorney’s office in New York City’s borough of Queens and is now a professor of police studies and law at New York’s John Jay College of Criminal Justice. A financial shortfall on the defense side “can create appellate problems,” he adds.
A solid defense in capital cases is more important than ever. In recent years, the justice system’s margin of error in death-penalty cases has come under scrutiny; since 1997, 56 people have been released from death row, according to the Death Penalty Information Center. That has prodded many judges to make doubly sure that defendants in capital cases have solid legal representation. Ineffective lawyers are a leading cause of wrongful convictions, says Eric Ferraro, a spokesman for The Innocence Project, a nonprofit that seeks to exonerate the wrongfully convicted. A Columbia University Law School review of all capital sentences from 1973 to 1995 found that 68 percent were later overturned, with poor legal representation a leading reason why. Often, according to death-penalty critics, poorly paid public defenders are simply overwhelmed with the complexities of capital cases and the vast resources stacked against them. For these critics, Nichols’s robust defense—costly though it may be—is an example of the system working as it should. His lead lawyer—a private attorney earning $175 an hour, well below his usual rate—is a highly respected and experienced litigator.
But many members of Georgia’s GOP-controlled legislature don’t see things that way. For them, the Nichols case shows how indigent defense costs can balloon to unreasonable levels. “This defendant now has four lawyers, an unlimited budget, according to the judge, and he killed a judge, a law-enforcement officer, a secretary and a federal officer … [with some of the murders recorded] on videotape,” state Sen. Eric Johnson, a Republican from Savannah, told NEWSWEEK. “You wonder if they’re trying to force the prosecutors to throw up their hands and never seek the death penalty again.” Preston Smith, a Republican state senator from Rome who chairs the committees responsible for overseeing and funding the state’s judicial system, has decried what he calls a “gold-plated O. J. Simpson-style defense team.” “Ultimately, the case may victimize 9 million citizens of Georgia,” Smith says. The judge is “establishing a policy to end the death penalty in Georgia by virtue of a few people that are going to make sure it’s too expensive for Georgia taxpayers to afford.”
Defense lawyers, however, respond that their firepower pales in comparison to the guns the prosecution has arrayed against them. For starters, there’s the sprawling 54-count indictment encompassing 11 different crime scenes and 22 victims. Prosecutors also retained famed forensic pathologist Henry Lee as an expert witness, defense lawyers told the judge, and they’re drawing on the investigative capabilities of the Atlanta Police Department, the Georgia Bureau of Investigation and the FBI, whose agents are assisting with crime-scene reconstruction and other investigative work. In addition, in their arguments to the judge requesting more money, defense lawyers noted that the prosecution’s case features 32,000 pages of discovery and a witness list of more than 400 people. Prosecutors declined to comment but according to The Atlanta Journal-Constitution told the judge in the case that they have had to forego expensive jury consultants, while the defense plans to use them. And in court filings, the prosecution has noted that they, too have limited funds—while pointing out that Nichols’s lead attorney is being paid much more than the $95-an-hour rate typically paid to Georgia public defenders under state law.
In the showdown between Judge Fuller and the legislature, neither side seems to be backing down. “Let me be clear,” Fuller wrote in his order. “This case would have proceeded to trial more than one year ago, and at far less cost, had the State of Georgia completed the task it assigned itself as of January 1, 2005, the task of adequate defense funding.” For their part, many of the state’s powerful Republican lawmakers are vowing not to allocate another dime for indigent defense. In the coming days, the standoff will likely intensify, as a second judge considers contempt charges brought by Fuller against the Georgia Public Defender Standards Council. The second judge’s task: to determine whether the state is willfully withholding money it is obligated to spend. As Fuller wrote in his order, “From the outset this court has recognized that defense funding would be a critical factor necessary to ensure a fair trial in this case, but no one anticipated the role that politics has assumed.” When it comes to the death penalty, politics is never too far away.
