Judge refuses to bar death penalty in courthouse shooting case

ATLANTA - A Superior Court judge on Wednesday denied a defense request to bar the death penalty if accused courthouse killer Brian Nichols is convicted of murder, but he did order the state public defender's office to pay certain expenses related to Nichols' defense.

A previous request to delay Nichols' trial indefinitely also was denied.

Judge Hilton Fuller said two suggested defense remedies to the lack of funding for Nichols' lawyers - barring the death penalty and delaying the trial - are 'moot or inappropriate at this time.' Those requests were made July 31.

But he did say the Georgia Public Defender Standards Council should be held to its promise to pay three of Nichols' remaining lawyers at certain rates and to provide reimbursement for certain expenses. The council has said it is strapped for cash and can't guarantee any more funding to Nichols' lawyers.

'This case must be tried, and it must be tried properly,' Fuller wrote in his ruling.

Fuller sealed the specific expenses he was ordering the council to pay.

The council, which is footing Nichols' legal tab because he is indigent, has said Nichols' defense had cost the agency $1.8 million through the end of June. Nichols' lawyers have said they have not received payment for some fees and expenses since the summer, and have had to dig in to their own pockets to pay some expenses. They said they have also been told no more money can be guaranteed for their future fees and expenses.

Fuller said his order 'should provide for reasonable and necessary defense funding to date.' The judge denied as premature a defense request to go further and find all proposed defense expenses to be reasonable and necessary.

He did say that if the council doesn't come through, as he hopes it will, to secure adequate funding for Nichols' defense, he could address that in a future order.

'If the court's confidence in governmental officials proves to be misplaced, the court will continue to exercise its powers to correct deficiencies in a reasonable manner,' Fuller wrote.

Jury selection in Nichols' murder trial is set to resume Monday. Defense lawyers asked anew Tuesday in a separate motion for an indefinite delay, citing the funding woes. Fuller has not ruled on that specific motion. It was unclear if Wednesday's ruling renders Tuesday's defense motion moot.

Nichols is charged with escaping from custody at a downtown Atlanta courthouse where he was on trial for rape on March 11, 2005, and killing the judge presiding over the rape trial, a court reporter chronicling the proceeding, a sheriff's deputy who chased him outside and a federal agent he encountered at a home a few miles away that night. He surrendered the next day.

Prosecutors plan to seek the death penalty if Nichols is convicted of murder. Nichols' lawyers plan to ask the jury to find their client not guilty by reason of mental illness, arguing that he was suffering a 'delusional compulsion' at the time of the killings.

Had Fuller granted the motion to bar the death penalty, Nichols' lawyers had said in court papers that Nichols would plead guilty since the most he could be sentenced to would be life in prison without parole. Nichols, through his attorneys, had previously offered to plead guilty in exchange for life without parole, but prosecutors rejected the offer.