The Nichols case illustrates a troubling paradox in death-penalty jurisprudence: the more heinous a crime—and the more incontrovertible the evidence of a defendant’s guilt—the greater the cost of the defense may be. Death-penalty trials require juries not only to determine whether the defendant is guilty but also to make other complex moral judgments—why a defendant committed a crime, whether he is likely to do so again, what punishment fits the crime. Defendants are entitled to often costly expert assistance, including the services of psychiatrists, as they prepare their cases. Yet spending large sums of public money on the defense of capital cases is politically incendiary, and in Georgia the consequences may be cataclysmic.In 2003, the state created the Georgia Public Defender Standards Council to oversee the assignment of attorneys to poor defendants, but the Nichols case is testing the system. Nichols' defense team has racked up a bill of more than $1 million, partly because attorneys had to be hired from North Carolina; defense attorneys in the Atlanta area claimed they were too close to one of the victims, a judge. The bill has left many Georgians asking question: What is the cost of a fair defense? Toobin quotes Steve Bright, senior counsel for the Southern Center for Human Rights: "The question now is whether the whole thing is going to come crashing down. . . . Georgia has 159 counties, and each one has a different system of hiring lawyers for the poor." Toobin reports, "In November, a judge in a murder case in rural Pike County removed two private attorneys because the council could no longer afford to pay them."
In many places, the question of legal defense for indigent defendants is determined on a court-by-court or case-by-case basis. States such as Florida, Oklahoma and South Carolina have placed caps on legal fees, but fees to expert witnesses still send the average cost above six figures. The financial problems have delayed the Nichols case for months now, and the end is nowhere in sight. Toobin's account is worth a look, and it could inspire additional reporting on this subject. (Read more)
Toobin's story has had a big impact on the case — Judge Hilton M. Fuller, left, removed himself after being quoted in the article, reports Shaila Dewan of The New York Times. In discussing the defendant, Toobin quotes Fuller as saying, "Everyone in the world knows he did it." Fuller had halted the case when there were no funds to pay for Nichols' defense. "Prosecutors, politicians and even fellow judges have railed at Judge Fuller over the delay," Dewan writes. "Judge Fuller stood firm, saying it was pointless to try a case without meeting constitutional standards for an adequate defense." (Read more) For the Atlanta Journal-Constitution's story about Fuller's recusal, by Beth Warren, click here. (Photo by Pouya Dianat, AJC)