In nearly 14 years on the bench, the new Georgia judge appointed to oversee the murder trial of accused Fulton County Courthouse shooter Brian G. Nichols has had only a handful of reversals by appellate courts -- a record that should reassure observers of the oft-delayed, high-cost case that Cobb County Superior Court Judge James G. Bodiford is unlikely to be pressured into risking an overturned verdict or retrial by denying essential resources to the defense.
DeKalb County Superior Court Senior Judge Hilton M. Fuller Jr., who recused from the case last week, took great care to avoid creating issues that might lead to reversal in the Nichols case. To some extent, Fuller's cautiousness has been the cause of much of the delay in the trial, originally scheduled to begin last spring.
Fuller recused after remarks attributed to him in a New Yorker magazine article included his observation that "everyone in the world knows [Nichols] did it." Fuller said his remarks were off the record, an attempt to explain the background of the case to New Yorker writer Jeffrey Toobin. Nonetheless, the published remarks created a situation in which he was "no longer hopeful that I can provide a trial perceived to be fair for both the state and the accused," he wrote in his official recusal letter to Fulton Chief Judge Doris L. Downs.
Coweta Superior Court Judge A. Quillian Baldwin Jr. appointed Bodiford. Baldwin was given the appointment power because the entire Fulton bench recused from the case.
But Fuller's departure doesn't change the financial straits Nichols' defense team faces, and Bodiford faces tough decisions right off the bat, including pending motions by the Georgia Public Defender Standards Council and Fulton District Attorney Paul L. Howard Jr. to reduce the size and change the makeup of the defense team.
"The change in judges doesn't make the problems go away," noted former DeKalb County Superior Court Judge R. Keegan Federal. "You've still got the financial problems, you've still got a 400-plus witness indictment. ... I'm delighted that Judge Bodiford has been appointed, he's a very good judge. But I think Hilton Fuller's a very good judge, too."
Richard A. Malone, executive director of the Prosecuting Attorneys' Council of Georgia, also welcomed Bodiford, whom he characterized as "a very hard-working judge. He doesn't let things go."
Malone said the appointment of Bodiford -- a sitting judge, rather than a senior judge like Fuller -- does mean the county will save money on salary; senior judges make about $500 a day, according to figures Fulton County provided.
But, warned Malone, Bodiford will need to be wary of defense efforts aimed at running up the tab.
"[Defense attorneys] have been using that strategy for 20 or 25 years," said Malone, who nonetheless opined that Bodiford -- himself a former prosecutor -- was unlikely to be sidetracked by pleas for more money or arguments that the trial's outcome could be jeopardized.
"I think he'll move the case along pretty quickly," said Malone. "[The issue of resources] comes up a lot whenever there's an appeal, but appellate courts are very reluctant to reverse unless there's evidence that something vital was denied. ... The judge can make a determination of what's reasonable."
Bodiford, he said, probably will be ready to restart the trial in a couple of weeks, after conferring with counsel and reviewing the case's history. More than 900 potential jurors have completed questionnaires that were distributed in January 2007; one decision will involve whether to proceed with that jury pool.
The history of filings in the case reflect the deliberations of a judge called upon to oversee a highly unusual case: the trial of a man accused of the murder of four people, including a Superior Court judge, in a bloody escape effort witnessed by crowds of onlookers and involving the investigative efforts of hundreds of law enforcement officers.
Initially, Fuller's deliberate handling of the case was welcomed by the prosecution and defense alike. In May 2005, Fuller removed all three members of the defense team from the state Capital Defenders office after it was revealed that one of the lawyers had fallen behind on his bar dues, and thus was not in good standing with the bar. From the beginning, Fuller was taking no chances of creating an issue for appeal.
Two months later, Fuller noted the "extraordinary" nature of the case, which involves a 54-count indictment, four crime scenes and more than 400 prosecution witnesses. "Given the nature and complexity of this case, and the extensive resources already been brought to bear [sic] by various law enforcement agencies and the prosecution, the court has determined that two defense lawyers are insufficient for this case," wrote Fuller at the time.
In subsequent decisions and comments from the bench, Fuller again expressed concern that Nichols be afforded a defense commensurate with the prosecution's five-lawyer effort. When the council, responsible for funding the defense effort, began protesting that it was running short of money, Fuller postponed the trial in March. At that time he scheduled a September trial date.
But in October, three days into jury interviews, he again halted the trial, this time indefinitely.
As the delays piled up, Fuller became a lightning rod for criticism from legislators, the Fulton DA's office and even some other judges.
Bodiford was unavailable for comment Monday, and, according to Cobb County Superior Court Administrator Skip Chesshire, planned to spend much of Monday attending meetings and preparing for his new assignment.
Like Malone, defense attorney Ashutosh S. "Ash" Joshi, a former assistant district attorney in Howard's office, thinks Bodiford will waste no time in restarting the trial.
"Everyone knows the seriousness of the case, and I believe that most of the parties are not interested in long delays beyond the natural and normal ones," said Joshi. "I think it may take a number of weeks or longer for a judge to catch up with all of the rulings in the case, most if not all of which I expect will remain in place. Despite public opinion, I do not think many of Judge Fuller's rulings are incorrect or even debatably incorrect."
Joshi did, however, say that the current jury pool -- members of which began filling out their questionnaires more than a year ago -- may need to be replaced.
"I would encourage a new round of jury selection," he said. "There has been even more media attention, and it is unclear after such a long time how the previously qualified jurors have been affected by the coverage. At a minimum, they all will have to be re-interviewed on whether their views have changed on any issue in the interim. It may be just as expedient to start over."
