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Prosecutor sues judge presiding over courthouse shooting case

TLANTA - A prosecutor is suing the judge overseeing the murder trial of accused courthouse shooter Brian Nichols, seeking to force the resumption of jury selection, and questioning whether the judge should be removed from the case.

The prosecutor also is suggesting that Nichols' four current attorneys be replaced.

In a filing in the Georgia Supreme Court, Fulton County District Attorney Paul Howard said repeated delays in the Nichols trial 'create an emergency situation' that deserves the high court's attention.

In the complaint, dated late Thursday and served Friday on Superior Judge Hilton Fuller, Howard is asking the high court to lift the indefinite suspension of the trial, direct the trial court to refrain from exceeding its jurisdiction and to clarify whether Fuller has effectively recused himself from presiding over the trial because of decisions he has made.

The filing said prosecutors want to know if by recently recusing himself from handling a contempt hearing in the case, that means Fuller should be barred from handling the entire trial. Howard said the fact that the contempt hearing was canceled at the request of the defense should have no bearing on the high court's review.

The filing also asks that Fuller be ordered to compel the state public defender's office to 'provide counsel from their staff attorneys for Brian Nichols.' Nichols' current lawyers are outside attorneys appointed to represent the indigent defendant.

The filing asserts that such an order is necessary to settle constitutional issues that have repeatedly delayed the trial.

One of Nichols' lawyers, Jacob Sussman, said Friday the defense had not seen the lawsuit and had no immediate comment.

There was no immediate hearing scheduled by the high court.

Fuller said Friday he fully expected this case would be challenging.

'When I accepted this assignment, I told my wife that this was going to be a very difficult case in which not only the defendant but the legal system would be on trial,' Fuller said in an exclusive interview with The Associated Press. 'That has certainly been the case.'

When asked if he plans to continue presiding over the case, Fuller replied, 'I haven't had an opportunity to evaluate today's filings, but I haven't seen anything yet that removes my determination to stay on the case.'

When asked when the trial would resume, he said, 'I had told the lawyers several weeks ago that we would resume jury selection Nov. 26. I don't know what effect these filings will have on scheduling.'

Fuller, a retired DeKalb County judge, was appointed to preside over the Nichols trial after all of Fulton County's judges recused themselves.

Fuller has been the target of fierce criticism from state political leaders and even from a fellow judge over his handling of the Nichols case.

Earlier this week, an e-mail became public that was sent by Fulton County Superior Court Judge Craig L. Schwall to all the county's judges, calling Fuller a 'fool' and an 'embarrassment,'

State House Speaker Glenn Richardson recently announced the creation of a committee to investigate Fuller's 'poor handling of public funds' and later suggested the House consider impeaching Fuller.

The Georgia Public Defender Standards Council has said that because of the amount of money already spent on Nichols' defense so far - $1.8 million as of the end of June, according to the council - there isn't enough money for other cases. Fuller has said Nichols' defense costs have reached only $1.2 million. The council has stood by its figure, and it has pointed out that the average Georgia death penalty case costs the defender's office about $400,000.

The council has told Fuller it can't afford to pay the defense any more money.

Howard, in his lawsuit before the state Supreme Court, alleges that Fuller has overstepped his authority by indefinitely suspending the trial.

The prosecutor said he wants the issues to be resolved 'so that this trial may proceed and the victims of these violent and heinous crimes may finally be heard.'

Nichols is accused of going on a deadly shooting spree that began at the Fulton County Courthouse on March 11, 2005. Four people died in the shooting rampage: Superior Court Judge Rowland Barnes, court reporter Julie Ann Brandau, Sheriff's Deputy Hoyt Teasley and federal agent David Wilhelm.

Nichols surrendered to authorities in suburban Atlanta the next day after allegedly taking a woman hostage.