The Nichols Case: Bid to execute now up to feds

Fulton County District Attorney Paul Howard said Saturday that courthouse killer Brian Nichols may get the death penalty yet —- from a federal court jury.

Howard, whose prosecution sought and failed to get death for Nichols, said he would talk this week about possible federal charges against Nichols for killing off-duty U.S. Customs agent David Wilhelm.

The district attorney proposed that idea just an hour after Nichols, 37, was sentenced to 485 years in prison, plus another four sentences of life without parole, and another seven life sentences with parole possible after 30 years.

Howard said he and U.S. Attorney David Nahmias would meet in a few days to discuss a possible federal prosecution seeking the death penalty. Nahmias confirmed he would meet with Howard, but said no decisions have been made.

When she heard Howard float the possibility, Christina Greenway looked toward Nichols prosecutor Clint Rucker, locked eyes with him and smiled.

“We need to do that,” said Greenway, 22, whose mother, court stenographer Julie Ann Brandau, was among Nichols’ victims. “If [Nichols] doesn’t deserve [the death penalty], who does?”

The final decision isn’t up to Nahmias. The Justice Department must agree before any U.S. attorney can seek the death penalty, and that is a lengthy and infrequent process.

“There aren’t many of them that have been approved,” said Stephen Bright, who teaches law at Georgetown University and Yale University. Bright said federal authorities “have a very low success rate in getting the death penalty.” Nationwide, there are 55 people in prison under a federal death sentence, compared to 105 state inmates on Georgia’s death row.

One of the crimes for which federal law allows the death penalty is the killing of a federal officer in the line of duty.

Nichols told police who questioned him that he knew Wilhelm was a federal officer before he shot and killed the agent the night of the courthouse shootings. Wilhelm, 40, was working alone at his home in Buckhead when he was surprised by Nichols. His federal badge was found later in his truck, which Nichols had stolen.

Ken Smith, special agent in charge of the Immigration and Customs Enforcement office in Atlanta, said at a post-sentence news conference that Wilhelm was killed “in the line of duty.”

Patrick Wilhelm, like his slain brother a U.S. Customs agent, was a bit more cautious about another death penalty prosecution. It was too soon to think about that possibility, he said.

“We’ll take what we got today and try to process that,” Patrick Wilhelm said.

Staff writers Jamie Gumbrecht and Steve Visser contributed to this article.