A capital trial at the crime scene

Almost two years after a judge, a court reporter and a sheriff’s deputy were shot to death at the Fulton County Courthouse, Brian Gene Nichols will stand trial in that courthouse for those crimes.

As TV cameras roll, the justice system will be on trial too.

After a blitz of media coverage of a nearly 26-hour manhunt for Nichols, some legal experts question whether a fair trial is possible in the courthouse where the attacks took place -- particularly when the case is prosecuted by former colleagues of the slain judge and court reporter.

“I would be concerned, real concerned, if I were his defense attorney,” said Thomas Maher, executive director of the Center for Death Penalty Litigation in North Carolina. “The jurors may have a tough time separating themselves from the people in the case. Sitting in the same courthouse, that’s difficult.”

On March 11, 2005, Nichols was headed to trial to face rape charges and a possible life sentence when, officials say, he overpowered a deputy, stole her gun and opened fire in the courtroom. Atlanta residents were riveted as officials mounted the largest hunt for a fugitive in Georgia’s history. Eventually, Nichols was apprehended at the home of a hostage, Ashley Smith, a waitress and born-again Christian, who persuaded him to surrender and then wrote a book about her ordeal.

In a 54-count indictment, Nichols is accused of murdering Superior Court Judge Rowland Barnes and court reporter Julie Ann Brandau inside the courtroom, Sheriff’s Deputy Hoyt Teasley outside the courthouse, and customs agent David Wilhelm at his northeast Atlanta home. Prosecutors are seeking the death penalty for Nichols, now 35.

For most Atlanta residents, the facts of the case appear clear: Several people witnessed the shootings in the courtroom; a surveillance camera in a parking garage captured Nichols fleeing the courthouse; Nichols is alleged to have confessed to Smith, and then to police.

“So many people are aware of what happened, it’s as if it’s almost an open-and-shut case,” said Andrew Sheldon, an Atlanta-based jury consultant. “But as we know from the O.J. Simpson trial, you really have to be there.”

Already, attorneys have sparred at a series of pretrial hearings and have filed more than 80 pretrial motions. The defense team has attempted to block the death penalty option and to throw out identification by some eyewitnesses. It has also argued that live television coverage threatens Nichols’ right to a fair trial, and it repeatedly sought to delay the trial, claiming attorneys needed more time to prepare.

Although Nichols’ attorneys have not revealed their strategy, some legal experts expect a mental health defense.

Prosecutors filed a motion last week to bar the defense from using such an argument, saying that his attorneys had not shared evidence to that effect, as the judge had required.

The trial, set to open Thursday, is almost certain to be one of the longest and most scrutinized death penalty trials in Georgia. DeKalb County Superior Court Judge Hilton Fuller, who was appointed to the case after all members of the Fulton County bench recused themselves because they had connections to the victims, has allocated three months for jury selection alone, and county officials have sent 3,500 summonses to prospective jurors.

“This is not going to be one of those ‘What the heck, judge, everyone saw him do it’ cases,” said Ronald Carlson, a professor at the University of Georgia School of Law.

Already, Fuller has assigned three extra attorneys to the case, and Nichols’ defense has cost more than $500,000.

“This is the most expensive death penalty case in the history of Georgia,” said Michael Mears, director of the Georgia Public Defender Standards Council, which is paying for the three additional attorneys. The council, which works on about 80 death penalty trials a year, has an overall yearly budget of $5 million for capital cases.

Media scrutiny of this case, Mears said, has put a strain on the justice system, raising the bar for future death penalty cases. Already, he said, a number of Georgia legislators have talked to him about introducing bills to limit the number of attorneys working on a single death penalty trial. “Everyone has bought into the idea that it’s an extraordinary case,” Mears said. “But basically it’s just a murder case with four victims.”

In February, Fuller ruled that the trial would be held in a first-floor courtroom in the Fulton County complex because he could not find an alternative location that would be convenient for jurors. Defense attorneys filed a motion to hold the trial at Ft. McPherson Army base, south of downtown Atlanta, but then notified the judge that the base’s commander had declined to make the site available for the trial.

The Nichols trial is not the first U.S. death penalty case to take place at the crime scene. In 2001, Kenneth Baumruk, who shot and killed his wife and wounded four others in a St. Louis County courthouse shooting in 1992, was convicted of murder and sentenced to death in the same courthouse. A year later, the Missouri Supreme Court overturned the conviction and death sentence. In an opinion, Judge Michael Wolff wrote that the setting was “inherently prejudicial. The jurors, in effect, sat at the murder scene.”

At least one other death penalty trial involving a courthouse shooting is pending. The trial of Jennifer Hyatte, who is accused of shooting a guard outside a Tennessee courthouse in 2005 to free her convict husband, has been rescheduled to give lawyers more time to prepare a defense. Hyatte’s attorney has asked the court for a change of venue.

Despite concerns about holding the case in the same courthouse, Nichols’ defense team does not want to risk a trial outside Fulton County: Jurors in the county have tended to reject demands for the death penalty.

Steven Sadow, a veteran criminal defense attorney, said that so far Nichols’ defense team had mounted a good technical legal defense but had built no public sympathy for Nichols.

“The defense has failed to humanize the defendant and give jurors a chance to save his life,” said Sadow. “I don’t think their defense strategy has been designed to save him. If you go by the playbook, they’ve done all right. But it’s not very rewarding to say, ‘I’ve done all right, but my client’s dead.’ ”

Still, with jury selection ahead, Sadow said it was possible that Brian Nichols might escape the death penalty.

“All the defense team is looking for is one person who can hang this jury so the death penalty is not imposed,” he said.

jenny.jarvie@latimes.com