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1 février, 2008 10:02

Greg Land

Fulton County Daily Report

01-31-2008

A barrage of efforts by the local district attorney, attacks from the Georgia Capitol and widespread criticism from the public and some quarters of the legal community were not enough to drive DeKalb County Superior Court Senior Judge Hilton M. Fuller Jr. off the Brian Nichols case. But an unguarded comment to a New York reporter effectively torpedoed his role in the case.

On Wednesday afternoon, Fuller stepped aside, expressing his view that the costly, complex case would only suffer if he remained after a New Yorker article quoted him as saying that "everyone in the world knows he did it."

"Judicial impartiality, real and perceived, is a critical element of the trial process," wrote Fuller in a letter to Fulton County Superior Court Chief Judge Doris L. Downs. "In light of recent media reports, I am no longer hopeful that I can provide a trial perceived to be fair for both the state and the accused."

Fuller expressed frustration at leaving the case, but said that to do otherwise would have inevitably led to a renewed recusal call from Fulton District Attorney Paul L. Howard Jr., and provided a basis for Nichols' lawyers to argue on appeal that he had prejudged their client.

"Personally," he said, "I accepted this case for all the right reasons, and it bothers me to leave the job unfinished.

"However," he continued after a pause, "it's the right thing to do for this case and for the state's justice system at this time." As he spoke, Fuller's clerk, Mary McCall Cash, brought him the letter to Downs, placed it in an envelope and handed it to the judge.

"You lick it," said a misty-eyed Cash. "I won't do it."

Howard, who has battled to have Fuller disqualified, issued a terse statement in response to the judge's recusal.

"Our purpose," it read, "remains the same, to dispose of this case in a manner characterized by justice and fairness. Accordingly, we wish Judge Fuller well as he moves on to other assignments."

Because the case remains open, Howard said in his statement, he would make no further comment.

Although Fuller had been blamed by politicians and pundits for allowing the case to be delayed and overrun by spiraling costs, he has been defended by others in the legal profession. Informed of Fuller's decision, University of Georgia Law professor Ron Carlson praised the judge's fortitude, even as he applauded his decision to step down.

"Judge Fuller has taken a lot of flak and a lot of grief for this case, and that's to his credit," said Carlson. "Having said that, I think he made the right call. While I don't personally think Nichols' case was hurt by his comments, the Judicial Canons require that judges 'act in a manner that promotes public confidence in the integrity and impartiality of the judiciary.'"

And although Nichols' announced intention to seek a mental-health defense effectively amounted to an admission that he had committed the courthouse killings, said Carlson, Fuller's comments "would be an issue on appeal as surely as the sun's coming up tomorrow."

Fuller said that he only consented to The New Yorker interview to help the writer, lawyer-journalist Jeffrey Toobin, understand the complex case, "because there's been so much misinformation."

"I had a specific agreement with Toobin," said Fuller on Tuesday, before announcing his recusal. "Our conversation was to be on background only, and there would be no direct quotations or attributions, unless they were floated by me first."

Not so, said Toobin, reached in New York.

"I don't know what to say," he said. "I mean, it was clearly for attribution; we even had a New Yorker fact-checker call and confirm it. ... I have great respect for Judge Fuller, but that was not at all my understanding."

But Fuller said the only fact-checking he was aware of were inquiries concerning the layout of the courthouse and the timeline of events on March 11, 2005.

On Wednesday, after Fuller's announcement, Toobin declined to comment further.

"I think, under the circumstances, I'll just allow the story to speak for itself," he said.

The New Yorker story was only the last, jagged piece of a much larger story that began the day of Nichols' arrest, when a team of lawyers from the brand-new Georgia Public Defender Standards Council first sought admission to Atlanta Police headquarters, demanding to see the man accused of killing Superior Court Judge Rowland W. Barnes, court reporter Julie Ann Brandau, Fulton County Sheriff's Deputy Sgt. Hoyt Teasley and off-duty U.S. Customs Agent David Wilhelm.

In the intervening 34 months, Nichols' defense team has been replaced and now comprises four private attorneys who have continually struggled for their own fees and funding for experts, investigators and transcripts. After the defense team ran up expenses of more than $1.2 million, the state agency responsible for funding their efforts pulled the plug, and Fuller stopped jury selection in October, saying Nichols could not be provided an adequate defense unless more money was forthcoming.

Although the expenses were all approved by the Public Defender Standards Council, Fuller has been accused of allowing the case to get out of control, and has been pilloried by members of the General Assembly, where a House committee was appointed to investigate his handling of the case.

In October, shortly after Fuller halted the trial, Fulton Superior Court Judge Craig L. Schwall circulated an e-mail to other Fulton judges calling Fuller a "fool," and pondering what action the Fulton bench could take to have the judge removed.

Then, Georgia Supreme Court Chief Justice Leah Ward Sears and Justice George H. Carley chided the trial court, defense lawyers and prosecutors for "the degree of contentiousness and delay that has plagued" the Nichols trial. The high court's chastising remarks came in an opinion that rebuffed DA Howard's attempt to have Fuller removed from the case.

Downs was on the bench and unavailable for comment but, with Fuller's recusal, is likely to call upon Coweta Circuit Superior Court Judge A. Quillian Baldwin Jr. to appoint a replacement judge. Because of the Fulton bench's recusal, Downs has passed on any such assignments to Baldwin, the administrative judge of the 6th Judicial District, as provided by law. Now it will be up to Baldwin to find a judge willing to pick up this complex case.