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Ga. Judge Blasts Judge in Courthouse Murder Case as a 'Fool' and 'Embarrassment'
Judge Craig Schwall blasts Fuller in an e-mail to Superior Court judges, saying Fuller should be replaced
Fulton County Daily Report
November 01, 2007
Fulton Superior Court Judge Craig L. Schwall has told other members of the Fulton bench that Judge Hilton M. Fuller has bungled the Brian G. Nichols murder case and should be replaced.
In an Oct. 11 e-mail sent to all Fulton Superior Court judges, Schwall doesn't mince words, calling Fuller a "fool" and "embarrassment," adding "Surely he can be replaced."
The full text of the e-mail reads (with original punctuation and capitalization):
"From: Schwall, Craig, To: All Superior Court Judges."
"Is there any way to replace the debacle and embarrassment Judge Fuller is. He is a disgrace and pulling all of us down .He is single handedly destroying the bench and indigent defense and eroding the public trust in the judiciary. See his latest order. He can not tell the legislature what to do. ENOUGH IS ENOUGH. .Surely he can be replaced. He is a Fool .How is it done. Seek mandamus for a trial? We should investigate if it can be done."
The e-mail is signed: "From not shy in 5C."
Schwall uses courtroom 5C. The Daily Report obtained the e-mail from a source who is not involved in the case. Two Fulton Superior Court judges, who asked not to be identified, verified the authenticity of the e-mail.
Speaking as a group, the judges acknowledged the e-mail and dissatisfaction with Fuller. Asked to comment on Schwall's e-mail, the Fulton bench issued the following statement through its public information officer: "One judge does not speak for the entire court, however Judge Schwall's frustrations are shared by a great many, including some members of the Fulton judiciary."
ATTACKING JUDICIAL INDEPENDENCE
Georgia State University Law professor Roy M. Sobelson said Schwall's comments, made in a private communication to colleagues, don't violate any judicial canons.
But he said he is unaware of any way the Fulton judges could remove Fuller from the case absent any evidence of wrongdoing or bias. Sobelson added he is disturbed by the "continuing ad hominem attacks" on Fuller.
"This whole issue of complaining about judges' decisions while we claim to uphold the idea of judicial independence is troubling to me," said Sobelson. "You can't go around attacking judges willy-nilly for their rulings you don't like. Illegality or incompetence is one thing, but I'm very troubled by all this talk of impeaching Judge Fuller or removing him."
Schwall's criticism comes amidst growing pressure on Fuller, a DeKalb judge who was appointed to preside over the case of accused courthouse shooter Nichols after all members of the Fulton judiciary recused themselves. Nichols is accused of murdering Judge Rowland K. Barnes, court reporter Julie Brandau, sheriff's deputy Sgt. Hoyt Teasley and federal agent David Wilhelm on March 11, 2005. Nichols was on trial for rape when he overpowered a deputy and then allegedly sought out Barnes, who was presiding over his rape trial.
Last month, state House Speaker Glenn Richardson announced the creation of a committee to investigate Fuller's "poor handling of public funds." Richardson later suggested the House consider impeachment of Fuller. Some lawmakers say Fuller is pursuing his own agenda; Rep. Tom Knox, R-Cumming, a member of a legislative indigent defense committee, has accused Fuller of attempting a "de facto repeal" of the state's death penalty by bankrupting the indigent defense system.
Nichols' defense team says it has rung up fees of $1.2 million so far, although the Georgia Public Defender Standards Council, the state agency charged with funding his defense, places the cost at $1.8 million. The council has told Fuller it can't afford to pay the defense any more money, prompting Fuller to threaten to hold the council in contempt. Fuller then recused himself from the contempt hearing he scheduled. Schwall apparently refers to Fuller's recusal from the contempt hearing in his e-mail. Rockdale Superior Court Chief Judge Sidney L. Nation Sr. will preside over the contempt hearing Monday.
Fuller halted voire dire two days after it started last month because of concerns that without additional funding the defense could not hire expert witnesses for Nichols' mental health defense and otherwise get the case ready for trial. That move was the latest delay in the trial that originally was set for Jan. 11.
FACING FUNDING WOES
Schwall's Oct. 11 e-mail was sent the day after Fuller ordered the council to continue funding Nichols' four-lawyer defense according to an order he issued in July 2005, when he mandated -- with the council's approval -- that three private attorneys would join with a state-funded lawyer to defend Nichols. That lawyer has since resigned and been replaced by another attorney who is working at no charge.
In his Oct. 10 order, Fuller noted that attorney fees and expenses had not been paid for several months, and that the lawyers were owed more than $32,000 in fees and expenses for experts and other trial-preparation costs.
Fuller also called on the state, which has not allocated all the statutory funding allowed to the council, to live up to its responsibilities, and said Fulton County should shoulder more of the case's cost. The county has since agreed to pick up the tab for Nichols' lead attorney, North Carolina lawyer Henderson Hill, who earns -- per Fuller's order -- $175 an hour.
Schwall, a former Fulton State Court judge, was appointed to the bench by Gov. Sonny Perdue in June 2005 to fill the seat of the slain judge. He did not respond to e-mail or telephone requests for comment. Through a spokesman, Fuller said it would be inappropriate for him to respond.
A CONSTANT DISTRACTION
One member of the Fulton bench, speaking not for attribution, said the ongoing trial has been a constant distraction at the courthouse. There is sympathy for Fuller, said this judge, and an understanding that Fuller must be cautious in his handling of the case in order to ensure an error-free trial that will survive any appellate challenge. Other jurists have expressed the view that Fuller is being scapegoated for political gain by some members of the Legislature.
Even so, the judge said there is concern that Fuller hasn't moved the case along more quickly. The judge said the Nichols' case has hampered the prosecution of other death penalty cases because of the difficulty of providing security for more than one such trial. The county has 10 other pending capital cases.
There also is resentment at the fees paid Fuller, who as a senior judge makes about $500 a day, and concern that, should the trial drag on, a new slate of jurors will have to be selected, the judge said. Jury selection began in January with the creation of an initial pool of 1,100 jurors. As the delays continue, however, it's possible that the pool could become stale, raising the possibility that the county might have to begin the process again.
The judge said the shadow of the case hangs over the entire courthouse, where friends and family members of the March 11 victims -- including Barnes' widow, Claudia Barnes, who clerks for State Court Judge John R. Mather -- still work.
And because the courthouse -- considered a crime scene by the defense -- will be seen by jurors, said a judge, no memorials to the dead can be displayed until the trial is over.
"We can't even hang portraits," said the judge.
