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Brian G. Nichols’ attorneys made an extraordinary request Friday as their client returned to the courthouse for the first time since the courthouse shootings of March 11. They want to conduct voir dire on the grand jurors who will consider Nichols’ case and record the traditionally secret proceedings. The defense fears that the grand jurors will be tainted by the pre-indictment publicity — and that the proceedings need to be recorded to preserve the defense’s ability to scrutinize the Fulton County district attorney’s handling of the case, said Josh D. Moore, senior staff attorney at the office of the Georgia Capital Defender. Moore explained to Senior Judge Hilton M. Fuller Jr. that after there is an indictment, the defense would try to force the recusal of Fulton District Attorney Paul L. Howard Jr.’s office. Nichols is accused of killing Judge Rowland W. Barnes, his court reporter and a deputy on March 11 after overpowering a deputy as he was changing clothes for his rape trial. Later, he is alleged to have shot a federal immigrations officer. He has not been charged with those crimes and continues to be held on the rape charges. Moore noted that the defense lawyers do not wish to attend the prosecution’s presentation to the grand jury. They only want to be able to question the grand jurors beforehand and then have the rest of the proceedings recorded. Moore said he doesn’t want the grand jury records to be made public after an indictment is handed down. They would remain sealed, he said. Attorney Thomas M. West, who represents several death penalty defendants in Fulton, said the defense moves sound like “a good idea.” West knew of no other cases where defense attorneys were permitted to question grand jurors. If Fuller denies the motion, it’s unlikely to be grounds for reversal, West said. But if the defense interviews the grand jurors afterward and finds out they thought Nichols was “guilty as sin” from watching TV news, it might help the defendant in an appeal. “Could that be used to his advantage? Maybe,” West said. He went on to say that Fuller should protect the “sanctity of the grand jury.” “The grand jury is not the tool of the prosecution,” West said. ‘WE’LL KNOW IT WHEN WE SEE IT’ Fuller probed both sides for a standard in dismissing grand jurors. Neither side offered much guidance. “We’ll know it when we see it,” Moore told him. The defense attorney said he believed it would be impossible to find grand jurors who have never heard about the March 11 incident. The defense team is not asking for a standard that high, he added. However, he told Fuller, the process needs “searching inquiry” to ensure the grand jurors will be fair and will return an indictment based on “evidence from a sworn witness,” not from the news media or some other source. The prosecutor, Elizabeth A. Baker, agreed with the defense standard for dismissing grand jurors. “You will know it when you see it,” she told Fuller. Baker diverged from Moore’s view when she qualified her statement. She said the standard for dismissing a grand juror is not the same as the one for dismissing a juror at a trial. Fuller noted that trial jurors are normally asked if they have formed opinions because of publicity in a case and if they would be able to set aside their opinions and determine a verdict based on the evidence. Baker said case law sets the standard “much lower” for a grand juror. “The standard is quite low,” she added. “It’s nowhere near the scrutiny” given to a trial jury. As for removing the Fulton DA’s office from the case, Baker said the grounds for recusing a prosecutor are “very narrow” and “irrelevant to what happens” in the grand jury room. IN THE COURTROOM Throughout the proceedings, Nichols sat with his back straight in his chair but appeared relaxed. He wore a light-tan shirt, beige pants and a matching beige jacket that draped across his broad shoulders. His arms and hands appeared free of restraints, but his legs were shackled. He had a thin moustache. He spoke briefly at the beginning of the proceedings, telling Fuller he had waived his right to attend two attorney conferences held the previous week. Fuller asked him if he had any questions. “No, your honor,” Nichols said. As they had done in previous proceedings, deputies confiscated cell phones and other electronic devices before visitors entered Fuller’s first-floor courtroom. Spectators entering the courtroom were asked to pull up their pant legs, and deputies waved metal-detector wands over visitors’ arms, legs and torsos. There were at least nine plainclothes SWAT team members scattered around the courtroom, including three sitting directly behind the defendant. In addition to the SWAT team, at least two uniformed deputies stood in the courtroom, one near the exit and one near Fuller’s bench. When the proceedings ended, deputies escorted Nichols from the courtroom before allowing the public to leave. After the hearing, a gaggle of reporters and news cameras followed Nichols’ parents, Claritha and Gene Nichols, as they walked from the courtroom, took an elevator to the ground floor of the courthouse, stepped outside the building onto Central Avenue and turned left and traveled one block north on Martin Luther King Jr. Drive, past the spot where their son allegedly gunned down a sheriff’s deputy. The couple said little. The defendant’s father, Gene Nichols, said he thought his son “looked very well.” Later he added, “We’re supporting him 100 percent.”

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