Nichols’ team balks over forensic expert

Brian Nichols is accused of murdering four people after escaping from a Fulton County Courthouse holding cell during his rape trial in 2005. In one of those deaths, the only living witness to the killing is Nichols himself.

And prosecutors have an expert who says that they don’t buy Nichols’ version of events in the shooting death of David Wilhelm, an off-duty U.S. Customs agent.

Wilhelm not only presented no threat to Nichols when he was shot, he may have been kneeling when he was killed, according to forensic expert Ross Gardner.

On Thursday, Nichols’ lawyers cried foul in a court filing because they say they were just served the report by Gardner, who re-creates events at crime scenes by studying blood patterns.

So Nichols again is asking Superior Court Judge James Bodiford to either exclude the evidence or delay his oft-delayed trial again.

“Assistant District Attorney [Christopher] Quinn argued to the court that the state provided the report to the defense as soon as it was received and has therefore satisfied its disclosure obligation in a timely fashion,” said the court filing by the defense team. “This argument is misleading at best.”

The defense pointed out that prosecutors had hired Gardner a year ago and gave him four crime-scene photographs, which the state has had since the killings.

“The state offers no explanation —- plausible or otherwise —- not to show these four photographs to its expert and ask for an opinion until the eve of trial. The defense cannot be expected to meet the force of this evidence at trial without time to prepare and retain an expert of its own choosing.”

Nichols, who has pleaded not guilty by reason of insanity, is charged with killing Wilhelm after fleeing the Fulton County Courthouse, where he was on trial for rape. He also is charged with killing Superior Court Judge Rowland Barnes, who was presiding over Nichols’ rape trial, court stenographer Julie Ann Brandau and Sheriff’s Deputy Hoyt Teasley.

Nichols had admitted to the shootings in a statement to police, but he claimed he fired on Wilhelm only after the off-duty federal agent pointed a gun at him. Nichols encountered Wilhelm at the Buckhead house Wilhelm was renovating.

“At the moment of the gunshot to his abdomen, Mr. Wilhelm was either kneeling or standing with his upper torso leaning toward the shooter,” Gardner wrote in his report. He said no evidence suggests Wilhelm was holding a gun in either hand.

Gardner cautioned that he could not say whether Wilhelm was kneeling or standing, but he contended the bullet wounds and other evidence indicated that Wilhelm would have had to be in an abnormal shooting position to point a gun at Nichols.