In Georgia, Push to End Unanimity for Execution

ATLANTA — For three and a half years, prosecutors in Georgia carefully built their argument for sentencing Brian G. Nichols to death for a rash of murders in downtown Atlanta in 2005. With Mr. Nichols admitting to killing four government employees, it seemed like an open-and-shut case in a state where the death penalty remains common.

But on Friday, three jurors shocked the legal community here by failing to agree with nine others on a death sentence and therefore, under Georgia law, sparing Mr. Nichols from execution. Without a unanimous sentence from the jury, a judge instead gave him 11 life sentences, plus 485 years in prison without parole.

Now, just days after the decision, Georgia legislators have began lining up to introduce bills eliminating the requirement that juries be unanimous for a death sentence. Hard-on-crime lawmakers have long favored easier rules on death sentencing, but the Nichols sentence has given new urgency to their cause.

“Unfortunately, you have people who say they’re willing to consider the death penalty, but when they get on a jury, it becomes clear that they’re actually death penalty opponents,” said Representative Barry A. Fleming, a Harlem Republican who twice sponsored efforts to revoke the unanimity requirement. Most recently, the proposal died in the State Senate in March.

Jurors in the Nichols trial reported that one juror was so opposed to the death penalty that she plugged her ears with earphones and solved a crossword puzzle during the sentencing phase, said Paul Howard, the district attorney of Fulton County.

Representative David Ralston, a Blue Ridge Republican who is chairman of the House Non-Civil Judiciary Committee, said, “The Nichols case, because it’s so recent and so high profile and the guilt of the defendant is so clear, has provided a great deal of momentum to the supporters of a change.”

Legislators have not decided who will introduce the proposal to end unanimity or how many jurors’ votes it will require for a death sentence, Mr. Ralston said. But if the proposal passes, Georgia will become the only state to allow non-unanimous juries to sentence defendants to death.

The federal government also requires a jury to be unanimous to impose death. (In Alabama, Delaware, Florida, Montana and Nebraska, judges can impose death sentences after a jury issues its recommendation.)

It is not clear, however, that a Georgia proposal can withstand a constitutional challenge. Carol Steiker, a death penalty expert at Harvard Law School, said it could violate the 14th Amendment guarantee of due process and the Eighth Amendment ban on cruel and unusual punishment. Although the Supreme Court allows non-unanimous juries in many cases, Ms. Steiker said, death sentences require the highest standards.

“As the Supreme Court tends to say, ‘Death is different,’ ” she said. “It’s different in severity and it’s different in finality. This case really illustrates one of the problems with states trying to maintain thoughtful and circumscribed death penalty rules. There’s incredible pressure on these legislatures to change the laws at critical moments after high-profile cases.”

Even critics of the death penalty worried about the message sent by Mr. Nichols’s sentence.

“This case shows how arbitrary and irrational the death penalty can be,” said Richard C. Dieter, the executive director of the Death Penalty Information Center. “People shake their heads when they hear that someone got the death penalty for robbing a 7-Eleven, and Brian Nichols got life in prison for his heinous crimes.”

There may be another opportunity for prosecutors to sentence Mr. Nichols to death. District Attorney Howard has suggested that federal prosecutors could try him for one of the killings because a victim, David Wilhelm, was a United States customs agent. The Justice Department will review the evidence before making any decisions, said Patrick Crosby, a spokesman for the department.

Ever since Mr. Nichols shot four people and led the police on a daylong chase across Atlanta on March 11, 2005, his case has generated tremendous attention, for both the brutality of his crimes and the exhaustiveness of his trial.

The county spent more than $3 million on a 54-count trial featuring 144 witnesses and 1,200 pieces of evidence, and much of that money could have been saved had the prosecution accepted Mr. Nichols’s offer to plead guilty in exchange for a sentence of life without parole. Mr. Howard scored a victory by convicting Mr. Nichols on all counts, but his primary goal was always a death sentence.

For years, the case’s length and cost have fueled criticisms of Georgia’s public defender system. State Senator Preston W. Smith, a Rome Republican, accused defense lawyers of spending like “drunken sailors on shore leave” to provide an “O. J. Simpson-style defense, all on the taxpayer’s dime.”

And frustration over the trial’s handling intensified after the sentencing.

Mr. Dieter, of the Death Penalty Information Center, said the case’s outcome demonstrated the growing difficulty of achieving a death sentence, even in the South. Across the country, death sentences have declined steadily over the past decade, to 115 in 2007 from 306 in 1998.

This downward trend reflects the public’s distrust of the death penalty and the increased reliance on the life-without-parole sentencing option, said Stephen B. Bright, a lecturer at Yale Law School and director of the Southern Center for Human Rights, who opposes the death penalty.

“To get 12 people to decide to kill somebody is a difficult undertaking,” Mr. Bright said. “People are overwhelmingly in favor of the death penalty when the Gallup poll calls. But when you ask them in a courtroom to actually impose the death penalty, a lot of people feel very uncomfortable.”

Source: The New York Times, December 17, 2008