Life or death for courthouse shooter Brian Nichols? A Fulton County jury may decide today.
By STEVE VISSER, JEFFRY SCOTT, MARK DAVIS
The Atlanta Journal-Constitution
ATLANTA, Ga. — The deadlocked 12-member panel may ask Superior Court Judge James Bodiford in writing if they can rehear a controversial tape recording of a telephone conversation in which Nichols tells his brother that he killed four people --- and should have targeted prosecutors the day of his courthouse shooting spree.
The jury deadlocked with a 9-3 vote and did not tell Bodiford whether the majority favored the death penalty or life in prison. If they were leaning toward death, the surprise request to hear Nichols’ threat to kill again could indicate the three holdouts were reconsidering their position.
Defense attorneys, who vehemently objected when the tape was first sprung on them without warning in November, have called the contents a “bombshell” that would certainly prejudice Nichols’ case. They failed earlier to keep the jury from hearing the angry conversation.
While the name of District Attorney Paul Howard is not said on the portion of the tape the jurors first heard, prosecutors have indicated in court that Nichols was targeting Howard and that the recording shows that Nichols is a continuing public danger.
Three of the 12 jurors --- including the man later chosen as jury foreman --- said before they were chosen for the panel that they had reluctance and misgivings about voting for a death penalty. They were seated, however, after they satisfied state law and said they would “consider” imposing death in the Nichols case. It is not known if any of those three are among the trio refusing Thursday to go along with the majority decision.
On the July 30, 2006, audiotape of Nichols’ call from the Fulton County Jail to his brother Mark Nichols, the defendant says he had confessed to the killings of a judge, court reporter, sheriff’s deputy and federal agent.
He also tells his brother that had he known then what he knows now, he would have “stopped on the third floor and shot” the prosecutors.
“I’d do it again,” he said.
Defense lawyers, glum that the jury was focusing on the tape, argued that the recording is grounds for a mistrial.
“It highlights how prejudicial that telephone call was,” lead defense lawyer Henderson Hill told Bodiford. “You should instruct the jury that prejudicial evidence should not play a part in their deliberations --- that is the minimum.”
Bodiford, however, said the tape was in evidence and the jury should be able to hear the portion that had been played during the trial, if they requested it. He said he would make his final decision today. “If I should have declared a mistrial, I should have done it on Nov. 19, and it would be over.”
The defense asked Bodiford earlier Thursday to declare the jury hung. Under Georgia law, a hung jury means Bodiford must decide whether to give Nichols life without parole or life with parole. He cannot give him death if the jury is split.
“We see signs of stress,” Hill said. “They are struggling.”
But Bodiford refused and told the jury to go back to the jury room and continue deliberating.
On Nov. 7, after 12 hours of discussion, the jurors convicted Nichols of 54 crimes from the March 11, 2005, courthouse shootings, including four murders, carjackings, robberies and assaults. The panel has already deliberated more than 25 hours in the penalty phase.
They found him guilty of killing Superior Court Judge Rowland Barnes, who was presiding over Nichols’ rape trial, court reporter Julie Ann Brandau and Sheriff’s Deputy Sgt. Hoyt Teasley at the courthouse. He also killed off-duty U.S. Customs agent David Wilhelm.
When the tape was introduced in November, prosecutors admitted they violated the court’s rule that they could not play tapes before the jury without first providing transcripts of the tapes to the defense team. But they argued they only discovered the contents of the tape recording at the last moment and introduced it into testimony so fast they forgot the court’s order to first provide the defense with a transcript.
Bodiford ruled then that the prosecution had violated the court’s order, but not in bad faith, and he allowed the tape to stay in evidence.
The next day, on Nov. 20, Nichols’ attorneys moved for a mistrial because the tape had been played for the jury.
“This was harmful, this was damning . . . this is a critical piece of evidence that the defense now has to deal with and weren’t even aware of it until yesterday afternoon,” defense lawyer Robert McGlasson argued to Bodiford. “There is no way we can undo that harm, your honor.”
Copyright 2008 The Atlanta Journal-Constitution