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Lawyers for accused courthouse shooter Brian G. Nichols have asked the judge to move the case out of the Fulton County Courthouse, arguing that it is a crime scene. Nichols’ lawyers also pointed to a possible defense by requesting that the prosecution preserve any evidence that the defendant was “under the influence of mental or emotional disturbance” at the time of the killings or that he “was suffering from unrelated but abnormal stressors at the time of the crime.” The defense lawyers also have asked the judge to help them get enough information to decide whether to request that the Fulton District Attorney’s Office be disqualified. The requests came late Wednesday as part of the first set of motions filed by Nichols’ new legal team, headed by Gary Parker of the Georgia Public Defender Standards Council. While noting that the request is “not a motion to change venue,” the defense argued that the courthouse had been rendered a “crime scene” because the first three murders occurred in or “very near” the downtown judicial complex. Parker, in an interview with the Daily Report, declined to say if he wanted to move all proceedings or just the trial out of Fulton. When asked if the motion to preserve evidence may indicate a defense, Parker said, “The motion speaks for itself.” Nichols, 33, allegedly shot and killed Fulton Superior Court Judge Rowland W. Barnes and a court reporter, Julie Ann Brandau, inside the judge’s courtroom on the morning of March 11. A few minutes later, Nichols ran out of the building and reportedly gunned down a pursuing deputy, Sgt. Hoyt Teasley. Authorities believe Nichols went on to kill a fourth person, federal agent David Wilhelm, after fleeing to Buckhead. A grand jury indicted Nichols on 54 felony counts in May, and the prosecution is seeking the death penalty. With the courthouse considered a crime scene, it would be “physically impossible” to guard against a juror either intentionally or unintentionally visiting the crime scene when he reports for jury service, the Nichols lawyers wrote in the motion. “It is well-established that a juror’s visit to an alleged crime scene constitutes misconduct and reversible error,” the motion states. It goes on to say the defendant’s constitutional rights — including the right to a fair trial — would be violated by a juror’s unauthorized visit to a crime scene because the “extra judicial information” obtained by the visit may “impermissibly affect the juror’s role as trier of fact.” Defense counsel further noted that alternative locations within Fulton, such as the Atlanta Municipal Court or the federal courthouse at the Richard B. Russell Building, were “not viable options,” but the lawyers did not specifically say why. Erik Friedly, a spokesman for Fulton County District Attorney Paul Howard, said Thursday that the prosecution would not comment on the latest filings. Friedly noted that the judge presiding over the case, DeKalb Superior Court Senior Judge Hilton M. Fuller Jr., gave the prosecution 10 days to file responses. However, Friedly said prosecutors likely will answer the motions before the status hearing at the courthouse. Fuller stated on Aug. 15 that the purpose of the conference will be to “note motions filed and to set at least a tentative hearing schedule.” In addition to the request to move the prosecution away from the Fulton courthouse, the defense team wants the court’s help in obtaining discovery to decide whether the DA’s office should be disqualified. Nichols lawyers stated in the motion that they attempted to obtain information relevant to the question of disqualification through informal communication with the DA’s office. But they didn’t get what they wanted and now have turned to the judge. While noting that some employees of the DA’s office could be considered victims and others had close ties to those who were killed, the defense stated that, among other reasons, Howard’s office might need to be disqualified because the prosecution’s “emotional stake” in the case could affect the exercise of “impartial judgment.” Also, the defense listed 16 current and former employees of the Fulton DA’s office who may appear as witnesses, a circumstance that “raises the likelihood of violating the advocate-witness role,” according to the motion. The defense team quoted from the American Bar Association’s Code of Professional Responsibility, stating, “The role of the advocate and of a witness are inconsistent; the function of an advocate is to advance or argue the case of another, while that of a witness is to state facts objectively.” Among the other requests for preserving evidence, the defense wants the prosecutors to preserve any mitigating material that suggests the defendant’s capacity to appreciate the criminality of his acts was impaired and that he committed the acts under circumstances “he reasonably believed to provide a moral justification or extenuation for his conduct.”

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