The district attorney prosecuting accused courthouse shooter Brian G. Nichols has asked the Georgia Supreme Court to order Judge Hilton M. Fuller Jr. off the case.
In an action styled as an "emergency petition for writ of prohibition," Fulton County District Attorney Paul L. Howard Jr. said that Fuller exceeded his authority in several respects, in particular with regard to funding issues in the case. He said that Fuller's recusal from one funding motion should act as a recusal from the entire case.
Howard also said the Supreme Court should order the trial judge to make the state's Public Defender Standards Council provide staff attorneys to represent Nichols -- "there being no evidence that the Standards Council is unable to represent the defendant."
The prosecution said in its petition that the trial is "languishing" and that prosecutors are being prevented from preparing for trials of other serious felonies.
"The time to act is now," Howard said.
Howard's filing came at the end of a week where Fuller came under increasing fire.
Fuller is a DeKalb, Ga., senior judge who was appointed to preside over the Nichols case after all members of the Fulton judiciary recused. Nichols could face the death penalty if convicted of murdering Fulton Judge Rowland K. Barnes, court reporter Julie Brandau, sheriff's deputy Sgt. Hoyt Teasley and federal agent David Wilhelm on March 11, 2005.
Howard's request of the state high court, filed Nov. 1, inadvertently answered a question posed last month by Fulton Superior Court Judge Craig L. Schwall, who told his colleagues in an e-mail that Fuller was a "fool" and an "embarrassment" and should be replaced.
Howard said the state Supreme Court should make permanent Fuller's recusal from hearing Nichols' motion for an order to show cause as to why the Standards Council should not be held in contempt because it had not fully funded their efforts. Defense counsel withdrew that motion earlier last week.
But Howard said, "The action of the trial court conclusively shows that the trial court has expressed an opinion so strong that it feels that it cannot be fair and impartial in deciding whether one of its own orders has been willfully violated so that contempt is required."
Howard also asked for a change of personnel on the defense side of the case. He said the Standards Council staff should represent Nichols, not the private attorneys who've complained about the council's failure to pay them.
Howard's petition said Fuller never made a proper finding that the Capital Defender Office couldn't represent Nichols. Howard notes that in May 2005, the state alleged that there was a conflict with Capital Defender Office lawyer Christian G. Lamar's representation of Nichols because his membership in the State Bar of Georgia was suspended for nonpayment of dues. But Howard said that doesn't mean one of the "properly barred" lawyers in the Capital Defender's Office couldn't represent Nichols.
The petition also said that when Fuller allowed Gary Parker, who was an employee of the Standards Council but has since left the agency, to bow out of the case for health reasons in March 2007, it should have required him to assign another attorney from the Standards Council to continue the council's duty of representing Nichols. Allowing North Carolina attorney Henderson Hill to step in for Parker as lead counsel violated Georgia's statutory indigent defense scheme, argues Howard.
Criminal defense attorney Jack Martin, who is not involved in this case, said the prosecutors "are asking to start the whole trial over.
"You would think that the Georgia Supreme Court would be very reluctant to try to micro-manage this case and start second-guessing the trial judge in the middle of trial," said Martin. "This may give the Supreme Court an opportunity to look at all of Judge Fuller's decisions and declare that everything he's done is reasonable and lawful. It may be a blessing in disguise."