UPDATED: 8:04 p.m. July 19, 2008
Nichols side makes case for death penalty opponents on jury


The Atlanta Journal-Constitution
Published on: 07/19/08

The effort to find a jury for Brian Nichols ended its eighth day Saturday with 57 potential jurors questioned and 24 qualified for the 100-member jury pool. At this rate, the pool should be completed by the last week of August.

The recitations were the same before each person took a seat in the jury box and just before they left.

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Judge James Bodiford spoke first and last, giving the same explanations, the same questions and the same warning not to talk about the case, whether they are kept in the pool from which they would draw 12 jurors and six alternates to hear the Brian Nichols death penalty trial.

In between, prospective jurors were asked about any hardships they would have if they had to serve for many months, what they know of the case, and their feelings about capital punishment.

On Saturday, Nichols' attorneys asked in a filing that those opposed to capital punishment not necessarily be excused from the pool, even though they are already asked if they can set aside their feelings and follow the law.

"Opposition to the death penalty — no matter how staunch — does not render a potential juror incapable of following the court's instructions and honoring the juror oath in a capital case," the attorneys wrote.

Nichols is on trial for murder in the March 11, 2005 shooting deaths of a Fulton judge and three others.

• Juror No. 12 had used the Brian Nichols case as a campaign issue when he ran for the Fulton County Commission in 2006. He criticized the judicial system because the case did not move fast enough to suit him. He also said that on the campaign trail he had talked about the crime and the lack of security at the Fulton County Courthouse, scene of three of the four killings.

"That issue resonated with people," he said. "It was a home run. That became part of my campaign."

And during that campaign, which he lost, "nobody told me this guy is innocent," the prospective juror added.

Could he put those thoughts and feelings aside enough to fairly hear the case, defense attorney Henderson Hill asked?

"I would do everything I could to put out of my mind the hundreds or thousands of comments I made as a Fulton County candidate," the prospective juror said. "I've stated in public forums he's guilty."

Juror No. 12 was excused.

• Juror No. 253 was chatty. And cold.

While answering questions, she wrapped a sweater around her arms with the back of the sweater draped across her chest. When asked a question by the judge, her lips moved as she silently repeated it to herself. She would pause, think and then answer.

She said that she would only consider a death sentence for the murder of a child, but in the Nichols case or any other she "would have to hear everything involved" before she decided. "I've tried not to have any immediate opinion."

As the interview appeared to be ending, Juror No. 253 stopped them when she said there was something she probably needed to tell them. "My son was at Virginia Tech," she said.

No, he wasn't in any of the buildings where the gunman killed 32 people last year but he was on campus, she said. Did that tragedy raise any feelings about the Nichols case? "That was a different situation," she answered.

She was kept in the pool.

• Juror No. 124 was questioned only for a few minutes when it became clear to the judge and the attorneys on each side what they should do about him.

The single father of two children — 6 and 10 years old — said he was not opposed to the death penalty but he volunteered that something happened to him in November that changed the way he looked at things.

His wife of 14 years died of breast cancer.

One of the prosecutors and one of the defense attorneys stood in unison. Both nodded at the judge and Bodiford nodded back.

Bodiford told juror No. 124 to go home and take care of his children.

"We'll pray for you," Bodiford added.

• Juror No. 61 wrote on his juror questionnaire that he had an "historic" view of the death penalty. Defense attorney Hill asked the 55-year-old man from Fairburn what he meant by that.

"Human society has had a death penalty since, throughout human history," said the juror. "Didn't Christ die on the cross as a result of court? And weren't there many other instances in history where there was a death penalty? Probably cave man decided each other's fate."

The juror used the analogy that the death penalty is like driving a motorcycle through a corner at 130 m.p.h. and crashing.

Hill held a pen out in his hand. If he let go of the pen it, would fall to the floor automatically because of gravity, Hill said. Did the juror mean the death penalty is as automatic as gravity when somebody is convicted of murder?

The juror, sort of smiling, sort of smirking, explained that no, the motorcycle driver could slow down, and the motorcycle is made of metal and it might scrape and not crash. So, of course it wasn't automatic.

"It's more complex than that," he said, looking at the lawyer as though he were too dim to comprehend.

Juror No. 61 joined the jury pool.

• Juror No. 21 surprised the courtroom last week when she said she was fond of one of the crime victims, Superior Court Judge Rowland Barnes, because he had treated her kindly when she was arrested for buying heroin a few years ago.

The Atlanta Police Red Dog unit had arrested the woman at The Bluff, a well-known drug market in Vine City. She said her son, an addict, had directed her to the "pharmacy" when he went into withdrawal.

Barnes let her off as long as she didn't buy heroin again.

"I found him a very wise and a very smart judge," she said, adding that the day of the courthouse shooting "was a very painful day for me."

"I thought of all the judges, why that one? Because he was such a good judge."

The woman said that while she opposed the death penalty, she could possibly impose it if she found that the killer lacked all conscience. Bodiford let her on the jury pool.

•Juror No. 43 said she absolutely could not impose the death penalty. "I don't have it in me to say 'Yes' to that," she said.

That was until defense lawyer Josh Moore stepped in. He told her the law would never require her to impose the death penalty, only that she be willing to discuss it with other jurors. She said she could "consider" the death penalty.

Prosecutor Kellie Hill then got the woman, a special education teacher, to revert to her former position.

Moore argued to the judge the woman was squeamish, not unqualified.

"It was clear that she would be troubled by condemning another human being to death," Moore said. "The state is not entitled to a jury that will not have any problem voting for the death penalty"

Bodiford wasn't buying it.

"She was straight down the line," the judge said. "Now, after being questioned by our silver-tongued experts here, it becomes more confusing."

The judge booted her from the jury pool.

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