Cover Story: The long reach of Brian Nichols

And Georgia’s deepening death-penalty crisis

There were no signs of forced entry into Doris Joyner’s Snellville home. So police theorized the elderly widow knew the person who stabbed her to death.

They found their connection six weeks later, on Sept. 22, 2004, when they arrested Kayla Sanders, 22, and one of her brothers-in-law, Donald Sanders, 32, in connection with the murder. Kayla Sanders’ other brother-in-law, who also is the father of her first child, had once worked for Joyner’s late husband and lived in his house.

She and Donald Sanders allegedly robbed the widow because Kayla Sanders wanted $900 to bail her husband out of a Jackson County jail, where he was being held for committing domestic violence against her. She later told police that she’d also noticed Joyner’s big-screen television and “really wanted to have” it.

According to court testimony, Joyner recognized the burglars when she confronted them. So they allegedly bludgeoned the 68-year-old woman with an iron, then stabbed her in the neck. Gwinnett County District Attorney Danny Porter decided to seek the death penalty against both Donald and Kayla Sanders.

Because the suspects didn’t have the resources to hire attorneys, their cases were turned over to the Georgia Capital Defenders, a unit set up to handle all death-penalty cases as part of a new state-funded public defender system. Kayla Sanders was represented by a senior staff attorney from the agency. Each defendant accused the other of killing Joyner, so a private lawyer named Walt Britt was chosen to represent Donald Sanders.

Then, on Feb. 9, 2007, as the trial approached, Britt filed a motion that claimed he couldn’t give his client proper representation. Two years after it was created, Georgia’s new public defender system was running out of money, he argued, partly because of a separate and sensational case in Atlanta: the defense of accused quadruple murderer Brian Nichols.

The capital defenders unit had stopped paying Britt and couldn’t give him money for the expert witnesses he needed, he complained. He asked for financial records from the capital defenders unit detailing spending on Nichols and even demanded that the system be declared unconstitutional because it wasn’t adequately funded.

The motion was denied, and Britt appealed to the Georgia Supreme Court. Then the trial judge, who’d been clashing with Britt over various issues, suddenly pulled him off the case for an alleged conflict of interest.

Like nearly every other death-penalty case in the state, the Joyner murder trial is now at a standstill. And the highly lauded public defender system that was only put in place three years ago is in crisis.

“Yes, I’m frustrated,” Porter says. “It frustrates me because these cases are too important to become a political football. The families don’t understand why this system isn’t working and it’s hard to explain to them. There’s plenty of blame to go around, both in the management of the system and the Legislature.”

Three years ago, that kind of frustration was supposed to be a thing of the past. The General Assembly had just created the Georgia Public Defenders Standards Council, a new agency that would provide defense attorneys in 190,000 indigent court cases each year. The council replaced a county-by-county hodgepodge that had grown out of a 1963 U.S. Supreme Court ruling ordering states to provide legal representation to people who were charged with crimes but couldn’t afford a lawyer.

In the decades since that ruling, a few counties had created full-time public defender offices. Most either contracted out indigent cases or required local attorneys – some of whom had no background in criminal law – to accept a certain number each year. In many counties, there was a “meet and plea” assembly line: An indigent defendant would meet his lawyer, talk for five minutes and then plead guilty. Indigent defendants could languish in jail for months in Fulton County before they saw a public defender. In Coweta, they were ordered to meet with a prosecutor in the courtroom at arraignment, who would encourage them to accept a plea bargain without ever speaking to a defense lawyer.

It was a system ripe for legal challenge, and in the late ’90s, the Southern Center for Human Rights – a nonprofit law firm that advocates for the rights of prisoners and death-penalty defendants – began to do just that, one county at a time. “Those cases were slam dunks,” Southern Center President Stephen Bright says.

The state Supreme Court responded to the center’s lawsuits in 2001 by appointing a study commission to take an in-depth look at indigent defense in Georgia. It concluded that only an overhaul would protect the state’s courts from a never-ending avalanche of lawsuits. Meanwhile, a three-part series in the Atlanta Journal-Constitution, called “Defending the Poor,” vividly outlined how thousands of indigent criminal defendants were effectively being denied the right to counsel.

Political leaders could no longer ignore the problem. Charles Clay, then a Republican state senator from Cobb County who had served on the study commission, introduced legislation in 2003 to carry out its key recommendation: establish a statewide network of full-time public defenders in each of the 49 court circuits to handle indigent cases. “The commission was basically unanimous in the need for a standardized statewide system,” Clay says. “We had 159 counties and 159 different delivery systems for indigent defense, and it wasn’t working.”

Clay’s legislation placed the new council under the judicial branch – it was a function of the courts and needed to be independent of prevailing political winds. The state would use new court fees to pay for about 40 percent of the costs of the public defenders, with the rest coming from counties. And Georgia Capital Defenders would be established as a unit within the agency to take on death-penalty cases, which tend to be far more complex and expensive than other cases.

“This is never an issue for which anybody will come up and say, ‘Thank you,’” Clay said at the time. “But it says something profoundly good about the state of Georgia by trying to ensure that basic concepts of fairness and justice will apply to all.”

Around the same time, however, another transition was taking place in Georgia. In 2003, Republicans had taken control of the governor’s office and the state House. They followed with a Senate majority two years later and control of the lieutenant governor’s office two years after that.

The first sign that the shift in political power might spell trouble for the new indigent-defense system came when it was time to fund the new program in 2004. Gov. Sonny Perdue wanted control over its budget, and fought to have the council placed under the executive branch. The Legislature resisted. Norman Fletcher, then chief justice of the Georgia Supreme Court, warned that such a move would violate the separation of powers clause that ensures judicial independence.

Perdue refused to give in, creating a standoff that caused the session to end without a balanced state budget. He was forced to call a special session and still didn’t get what he wanted. But the gauntlet had been thrown: The delicate agreement that had led to a new public defender system was no longer off-limits to political turf battles.

In other parts of the country, Georgia’s new indigent-defense setup already was winning accolades. The council received an award for innovation from the American Bar Association. Emmet Bondurant, the council’s first chairman, was invited to speak to legislatures that were looking to reform their own systems.

“It was looked on as a model of reform around the country,” says Bondurant, a longtime advocate to improve the state’s public defender system. “I thought we’d come out of the wilderness and dark ages, and into the light.”

Once in a generation, a crime comes along that changes everything. For many Georgians, that crime was the 1973 Alday killings. A group of Maryland prison escapees led by Carl Isaacs were on their way to Florida in a stolen car when they ran low on gas in rural southwest Georgia. They saw what looked like a gas pump behind a mobile home and stopped to investigate.

There was no gas, but Isaacs and his accomplices – his 15-year-old brother, Billy Isaacs, his half-brother, Wayne Coleman, and a fellow escapee, George Dungee – decided to burglarize the empty trailer where a young couple named Jerry and Mary Alday lived.

Within minutes, an entire family was gone. Isaacs and his gang murdered six members of the clan as they arrived at the trailer that day; they repeatedly raped the only woman, Mary Alday, and stole anything they could find that was valuable.

By the time they were arrested days later in West Virginia, the entire state was both scared and seething. Hundreds of miles from the Aldays’ home in Seminole County, people reported locking the doors to their homes for the first time. Within seven months of the killings, Carl Isaacs, Coleman and Dungee each was convicted of murder and sentenced to die. Billy Isaacs testified against the others and received a 40-year sentence.

But in 1985, the conviction was overturned. A federal appeals court ruled that pretrial publicity and community outrage had robbed the killers of a fair trial. In a 1988 retrial, this time in Houston County, Bright represented Dungee. Isaacs was convicted a second time, sentenced again to death and, in 2003, finally executed after 29 years on death row. But his two co-defendants each received life without parole.

“There was a lesson learned in the Alday case,” Bright says. “If you want these convictions and sentences to stick, give them good legal representation. If you don’t, you may have a conviction short-term, but you’re going to put the families of the victims through hell when it’s overturned. In the long run, it’s very short-sighted.”

On March 11, 2005 — two months after Georgia’s new indigent-defense system had begun to operate — another landmark crime occurred that was bound to have a similarly large impact. A rape defendant named Brian Nichols overpowered the lone female deputy guarding him in the Fulton County Courthouse and headed straight to the courtroom where his trial was being held. Armed with the guard’s gun, he allegedly killed Judge Rowland Barnes — who was presiding over his rape trial — along with court reporter Julie Ann Brandau.

In his flight from the courthouse, Nichols allegedly shot and killed Fulton County Deputy Hoyt Teasley, and did the same to David Wilhelm, a U.S. Customs agent, in Buckhead. By the next morning, when he surrendered to a Gwinnett County SWAT team at the Duluth apartment of Ashley Smith, four people were dead and Nichols had become the most feared villain in Georgia. Fulton County District Attorney Paul Howard quickly announced he’d seek the death penalty.

From the very start, the Nichols case presented a unique challenge. Everyone who would be involved – from police to prosecutors to defense attorneys to judges – instinctively viewed the victims as one of their own. Because all of Fulton County’s Superior Court judges recused themselves from the case, a retired judge from DeKalb County who made himself available to fill in on cases – Senior Judge Hilton Fuller – was appointed to preside over the trial.

The capital defenders unit named two staff lawyers – one of them Gary Parker, the council’s deputy director – to represent Nichols. To avoid conflicts of interest (many local attorneys knew and liked Judge Barnes), two death-penalty specialists from North Carolina, Henderson Hill and Jacob Sussman, were hired by the unit to assist, along with Atlanta lawyer Robert McGlasson. When Parker fell ill in July 2005, he resigned from the case and Hill took over as lead counsel.

“The approach taken with Brian Nicholas was that nobody could complain the case was not done properly,” Bright says. “They did that with Eric Robert Rudolph and Timothy McVeigh. The idea was to give the guy good lawyers. Have a fair system. You don’t always get the results you want. But if you give people a fair trial, the cases will be upheld on appeal.”

The prosecutors came at Nichols full throttle. When his lawyers offered to plead guilty in exchange for life in prison without parole, Howard turned them down. Nichols was charged with 54 crimes, involving 478 potential witnesses at 11 separate crime scenes. The prosecution even secretly recorded his jailhouse phone calls and announced plans to introduce them at trial.

But Howard’s approach had a drawback: The prosecution was now so complicated that the defense attorneys argued they needed more resources to make it a fair trial. “This is an easy case,” Bright says. “You could probably call the people in the courtroom and let them testify, and you’d win the case. There’s very much a relationship between what the prosecution does and how the defense has to respond.”

Some advocates for Georgia’s new public defender system argue that the system was working too well to be tolerated by politicians who wanted to be known as tough on crime.

In the program’s first full fiscal year, the agency handled 450 felony trials. They won acquittals in about 30 percent of the cases. In many other cases, they got convictions for offenses significantly less severe than the charges or than what had been offered in plea bargains.

The capital defense unit was similarly successful. In all but four of its first 40 death-penalty cases, plea agreements were reached for sentences of life in prison. Not a single client received the death penalty.

“We didn’t publicize the wins because of fear of political backfire,” Bondurant says.

There was good cause for that caution. A bipartisan group had ushered the bill that created the public defender system through the Legislature, and it had the support of the governor. Even then there was political unease with some aspects of the program, as evidenced by Perdue’s push to have it placed under his control.

Now, however, the levers of state government were entirely in the hands of a Republican majority – a conservative majority eager to make the point that it would be harsher on criminals than Democrats had been.

“All the people in the Legislature who put the public defender system together weren’t there anymore: Chuck Clay, Terry Coleman, Mark Taylor,” says Michael Mears, the first executive director of the public defender council. He is referring to the bill’s sponsor, the former House speaker and the former lieutenant governor. “We were left with people who didn’t have indigent defense as a priority.”

During the 2005 session, the General Assembly routinely approved a $42 million budget for the public defender system for the 2006 fiscal year. Then, in the 2006 session, it took back $5 million from the original allocation.

Mears says legislative leaders told him not to count on receiving all the money generated from the new court fees that were put in place to fund the public defender system. “I was in total shock,” Mears says. “It was like the system was being dismantled almost as soon as it was put together.”

While the amount collected from court fees intended to fund the indigent-defense system has risen every year, the amount allocated to the public defender system has dropped, and lawmakers have dipped into those funds for other purposes.

“The whole idea and the justification for the fees was sold to the public, the Legislature and the bar as a way to finance the state’s contribution,” Bondurant says. “The whole premise was that it was there for indigent defense. It’s dishonest and disingenuous to bait and switch.”

Clay, the former senator who authored the indigent-defense bill, isn’t quite as harsh in his assessment. He does say, however, that money raised from the fees is supposed to be a “legitimate guidepost” for how much money should be budgeted for the indigent system.

In the 2007 fiscal year, the allocation for the public defender system dropped to $27.8 million. That same year, the new court fees raised $43 million.

Bondurant says the public defender council was double-crossed by the Legislature. “We were assured that we could come back in the 2007 session and get an additional $9.5 million added back into the budget,” he says. “When we went back, they said the agency had overspent its budget when they were the ones who said they’d give us the money.”

During the 2007 session, Perdue also was finally able to win his battle to have the council removed from the judicial branch and placed under the executive branch. Advocates for the new system argued that the change represented a critical loss of political independence.

“The council is supposed to provide every indigent defendant with an effective counsel, not to suck up to the Legislature,” Bondurant says. “They are attempting to politicize what needs to be an independent body that meets constitutional standards.”

At the same time, the death-penalty defense unit was plunged into an even deeper financial crisis. Of the council’s $27.8 million budget, only $4.8 million was set aside for Georgia Capital Defenders. According to the council, prosecutors typically spend $2 million to take a single death-penalty case to trial. Nationally, $360,000 is spent on defending the average death-penalty case that goes to trial. Although most of the unit’s 80 open files won’t go to trial over the course of a single year, it’s easy to see how a $4.8 million budget could be gobbled up on just a handful of particularly complex cases.

“A capital case is one area where you just can’t scrimp,” Bright says. “People’s lives are at stake. If you’re going to have a death penalty, you’re going to have to have good defense representation.”

The Nichols case pushed the system past its breaking point. When the 2008 fiscal year began July 1 – and the capital defenders budget was decreased to $4.3 million – the case had been on hold for months because there wasn’t money in fiscal year 2007 to pay the defense team. By the end of August, the entire new budget for the outside lawyers was exhausted. Each capital defense staff lawyer was weighed down with eight clients. Because of layoffs months earlier, none had a legal secretary or a paralegal.

Christopher W. Adams – who put together the capital defenders unit and served as its first director – urged the council to fight back, to “tell the truth about the lack of adequate resources.” In an Aug. 30, 2007, letter obtained by CL, Adams argued that the unit should refuse to accept additional cases until the agency received sufficient funds. He maintained it was the only way to comply with the Sixth Amendment requirement for a fair and impartial trial.

When the council refused, Adams resigned. “For the sake of the clients, I hope that time will prove that I am wrong and you are right,” Adams wrote. “However, as a matter of conscience, I can not sit idly by and await the results.”

In truth, the council was probably powerless to push back against the political pressure.

Fuller tried to get the Nichols trial going again, but ran into the same roadblock – the defense had no money. In October, he again shut down the trial, saying it was up to the county and the state to come up with the money to pay for Nichols’ defense.

The Legislature responded with a full assault on both Fuller and the public defender system. House Speaker Glenn Richardson, R-Hiram, appointed a three-member committee to investigate whether the judge should be impeached. House Majority Whip Barry Fleming, R-Harlem, whom Richardson appointed to chair the panel, demanded an accounting for the nearly $2 million spent on the Nichols case. “How many more millions will be spent giving Brian Nichols a defense that no one, including the taxpayers, could afford for themselves?” Fleming told the AJC.

Meanwhile, state Sen. Preston Smith convened a session of the legislative committee with oversight of the public defender system. “The hearings were so hateful,” Bright says. “Norman Fletcher, the former chief justice, came down from Rome to testify. They treated him like dirt. It was so bad that Chuck Clay took them to task for it. That hearing has probably contributed to the tone of the discussion.”

Clay confirms he was concerned with the way the committee treated people who were concerned about the crumbling system. “I told them, ‘Guys, you’re not in a courtroom. You’re not enemies here.’ I said, ‘If changes need to be made, make them. But don’t pick on indigent defense. Those are the attitudes that cause problems, that you’re the good guys and they’re the bad guys.’”

But lawmakers had found a hot button and weren’t about to stop pushing it. “The people of Georgia are entitled to know if the court’s approval of the excessive expenditure of public funds is being used to indirectly subvert the ends of justice,” Fleming wrote to Fuller. “We hope that after you have received input from counsel you will not use any response they may give as an excuse to obfuscate our request.”

Bright says the Legislature created the problem when it failed to provide adequate funding for the council, then turned the havoc that resulted into a target of its wrath. “Georgia has a rich history of political demagoguery,” he says. “What’s so dishonest about Preston Smith and Barry Fleming is the council is underfunded so badly, and then they criticize it so ferociously. It’s unconscionable.”

Mears contends the Nichols case has given conservative lawmakers what they wanted all along: an excuse to shut down the state-run public defender council and return to the old county-by-county system.

“It’s all a ruse to destroy the system,” Mears says. “The system was being dismantled almost as soon as it was put together. Then Brian Nichols became the perfect storm that exasperated an already bad situation.”

By the end of 2007, the composition of the council that oversees the state’s public defender program had dramatically changed. Emmet Bondurant’s term had expired and he left as chairman. Perdue and the General Assembly were able to appoint new members. Health problems had forced Michael Mears to step down as executive director. He was replaced by Mack Crawford, a Republican legislator who’d also served on the council.

The public defenders system faced increasing pressure in January. Smith released a report from his legislative oversight committee that accused Fuller of “gross mismanagement” of the Nichols case. Smith all but acknowledged that the issue of funding the public defender system boils down to political philosophy.

“There is an enormous ideological policy gap between some of the criminal defense advocates who designed the system and many of the current legislators,” he wrote. “If ‘adequate defense’ means the best defense money can buy ... taxpayers must be prepared to fund dream team defenses at the expense of other state priorities.”

In January, the newly constituted council decided to reverse course on the Nichols case. It voted to file a motion with Fuller to remove two members of the defense team and replace them with staff lawyers from the capital defenders unit.

Bright, who heatedly confronted Crawford in the hallway when the meeting was over, says that decision alone could plunge Georgia’s public-defender system back into a constitutional crisis.

“A politically appointed board has just reconstituted a defense team,” he says. “The micromanagement of a death-penalty case by a board appointed by politicians is unprecedented in my experience. And there’s been a complete failure by the Georgia judiciary to stand up to the Legislature.”

Fuller never ruled on the council’s motion. The case took another bizarre turn in late January, when the New Yorker quoted the judge speaking candidly about the case and Nichols’ pursuit of an insanity defense. “That’s their only defense because everyone in the world knows he did it,” he told writer Jeffrey Toobin. Facing torrid criticism for his remarks, Fuller resigned.

Less than a week later, Cobb County Superior Court Judge James Bodiford was assigned to take over the trial. Before Bodiford could rule on the council’s motion, an agreement was reached to place a capital defenders lawyer on the defense team to save money.

Still, the financial crisis continues. The Senate rejected Perdue’s request for a $3.6 million infusion of cash into the council. About $1 million of that supplemental money had been earmarked for death-penalty cases, but Smith convinced the Appropriations Committee to knock the overhaul emergency appropriation down to just more than $500,000. The issue now must be resolved in a House-Senate conference committee.

Smith told CL that midyear budget emergencies have become an annual rite for the agency. “They generate their own funding crisis, then come back to us with what we called a ‘coercive deficiency,’” he says. “They threaten us with furloughing employees, shutting down courts, ending the administration of justice and all sorts of dire consequences if they don’t receive emergency funding.”

He notes that the new statewide system is costing far more than the old county-by-county system. “In 2000, the system cost $54 million,” Smith says. “This year, we’re projecting $107 million. So in eight years, the system has doubled in terms of the monies expended.”

Bondurant counters that lawmakers created the crisis when they underfunded the agency precisely as it needed to pay for a defense against what may turn out to be the most complex and expensive prosecution in the state’s history. The war of words between the two sides has become ever more angry.

“You have a series of malicious legislators who misrepresent the facts, and jump up on a soapbox to criticize the Nichols case,” Bondurant says. “It’s clear the Senate is out to wreck the system. And wreck it, it will.”

Which, he says, will leave us right back where we started: with an indigent-defense system that doesn’t work and only gives Bright fodder for more “slam dunk” lawsuits.

In the short term, prosecutors and defense attorneys agree, the controversy will help death-penalty defendants in the same way that trial errors led to second chances for Carl Isaacs and his cohorts.

“Ultimately, all of this controversy makes it easier to defend these cases,” says Tom West, who has three cases assigned from the capital defenders unit. “You hope you never get a death verdict, but these are pretty easy grounds to reverse.”

Gwinnett District Attorney Danny Porter, a strong advocate of the death penalty, says he had concerns when the public defenders council was created. But he never imagined a crisis of this magnitude.

“Some of these lawyers want to bog things down, make death cases so complicated that it’s not worth the effort to prosecute them,” he says. “Cutting their budget is really playing into their hands. The Legislature needs to solve the problem.”

Staff Writer Thomas Wheatley contributed to this story.