SHOULD BRIAN NICHOLS BE TRIED IN A FEDERAL COURT? PRO: A good way to renew public confidence

Federal prosecution of Brian Nichols is needed now.

On the recent night when it became clear that Nichols had escaped the death penalty, the public responded. An early WSB-TV poll reported that 86 percent of sample viewers condemned the sentence as “too light.” Public discontent was also fueled by news reports one juror solved crossword puzzles in the jury room.

Major Atlanta public figures, including Fulton County District Attorney Paul Howard and AJC Editorial Page Editor Cynthia Tucker, have expressed their dissatisfaction in opinion articles on these pages. For Howard, one of his biggest disappointments was the “three jurors [who] would not engage in [jury] discussion” and the one who reportedly worked a crossword “to preclude further discussion.” Tucker rightly decried a climate of litigation delay that she said rendered the Nichols saga “a mockery of justice.”

These commentators reflect the public’s disgust for all things Nichols. Repairing his damage to the justice system is an urgent goal. Federal courts hold the key. They have provided justice in the past when the public confidence was in desperate need of a lift. The Rodney King beating in Los Angeles and, closer to home, the Derwin Brown homicide in DeKalb County provide prominent examples of federal intervention. So do a multitude of civil rights prosecutions.

There is strong evidence that customs agent David Wilhelm was brutally killed by Nichols after Nichols found out he was a federal agent, and because of it. Remember, Nichols’ rampage was directed against any and all officers of the criminal justice system. Federal law protects against attacks on agents who are killed on account of the fact that the agent performs official duties. The Wilhelm homicide would seem a classic case of such a murder.

Turning to federal authorities for assistance helps to resolve ambiguities respecting the future housing of Nichols. As an escape artist, he may dream up breakout opportunities previously unanticipated by state correction officials. If convicted in a federal trial, whether or not a death penalty is assigned, there would seem little uncertainty respecting his whereabouts. The federal Supermax prison is in Colorado.

Along with fellow federal prisoners like the Unabomber or the Oklahoma City bomber, future jail pressures would not force him out of the place and back to a state facility. In Colorado’s Supermax, prisoners are constantly watched by closed-circuit cameras and are in lockdown for 23 hours a day.

Still to come in Georgia’s processes are several avenues for Nichols to pursue. Nichols can appeal his state sentence, and in future years can bring habeas corpus actions.

A potential federal sentence would ensure against any future release. For those saddened by Wilhelm’s tragic demise, there would be a condemnation of his killing by the very federal courts he so ably served.

Final considerations are cost and delay. Fortunately, federal courts are able to deal with both. With billions going for corporate rescues and stimulus packages, a case like Nichols’ cries out for support. Funding justice is at least as important as a company bailout.

Much of the cost, of course, will be reduced by promptly bringing the case to federal trial. Three and a half years will not be needed. Aided by information disclosed during the state litigation, prosecution and defense can get right at it. A good way to renew public confidence would be to emulate the model of Judge James G. Bodiford in holding fast to established deadlines. Let’s fix a time for announcing a federal prosecution. And let’s make it sooner rather than later.

> Ronald Carlson is Fuller E. Callaway Chair of Law Emeritus at the University of Georgia School of Law.