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Judge denies mistrial in Nichols case

ATLANTA - The judge hearing the case against convicted courthouse gunman Brian Nichols chided prosecutors Thursday for introducing evidence of a threatening phone call, but he refused a request by defense attorneys to declare a mistrial.

Superior Court Judge James Bodiford said prosecutors violated a court order by playing a tape of Nichols apparently threatening to kill Fulton County District Attorney Paul Howard without first providing defense attorneys a transcript of the call.

But after taking a 20-minute recess to consider the defense motion for a mistrial, he said the mistake was a 'technical violation' that did not merit a mistrial. He did, however, concede that the evidence would likely come up in an appeal of whatever sentence Nichols receives.

Nichols was found guilty Nov. 7 of murdering a judge, a court reporter, a sheriff's deputy and a federal agent when he escaped from a 2005 rape trial in Atlanta. The jury is now hearing testimony about whether Nichols should receive a death sentence.

Prosecutors this week played a June 2006 phone call from Nichols in which he said if he could have done something different, he would have 'stopped on the third floor and shot your a--.' Howard works on the third floor of the Fulton County Courthouse.

Nichols' attorneys filed a motion seeking a mistrial Thursday, saying they were not provided a transcript of the call before the evidence was introduced. The motion contends the 'content of the call was highly prejudicial to Mr. Nichols and his right to a fair trial.'

Nichols' attorneys, who have repeatedly asked the judge to declare a mistrial throughout the case, said the phone call caught the defense team by surprise and did irreparable damage to their case.

'It's a bell that simply can't be unrung,' defense attorney Robert McGlasson said. 'It's so clear this is prejudicial.'