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January 30, 2008

Murder, media and other capital mayhem

Tobin_piece I have been meaning all week to spotlight Jeffrey Toobin's fascinating essay in The New Yorker about all the craziness surrounding the crimes and trials and tribulations of Brian Nichols, the notorious Georgia courthouse shooter.  Here was one of many great passages from the Toobin piece:

The Nichols case illustrates a troubling paradox in death-penalty jurisprudence: the more heinous a crime — and the more incontrovertible the evidence of a defendant’s guilt — the greater the cost of the defense may be . Death-penalty trials require juries not only to determine whether the defendant is guilty but also to make other complex moral judgments — why a defendant committed a crime, whether he is likely to do so again, what punishment fits the crime. Defendants are entitled to often costly expert assistance, including the services of psychiatrists, as they prepare their cases.  Yet spending large sums of public money on the defense of capital cases is politically incendiary, and in Georgia the consequences may be cataclysmic. According to Stephen B. Bright, the senior counsel for the Southern Center for Human Rights, in Atlanta, “We are just now starting to see the ripple effect of Nichols. The question now is whether the whole thing is going to come crashing down.”

The quote from Stephen Bright is now especially interesting in light of this new development regarding the Nichols case:

The judge presiding over the case of accused courthouse shooter Brian Nichols says he is stepping down from the case.  Superior Court Judge Hilton Fuller announced his decision in a letter to Doris Downs, the chief judge for Fulton County Superior Court. 

He cited recent media reports referring to a quote in a magazine article attributed to him in which he allegedly asserted that Brian Nichols was guilty. 

The article by Jeffrey Toobin appeared in the New Yorker.  Fuller insisted he didn't recall making the comment and that his arrangement with the writer was that their conversation would be for background only.

January 30, 2008 at 05:33 PM | Permalink


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“and the more incontrovertible the evidence of a defendant’s guilt “

This just shows why Toobin is a hack that panders to the basest desires of people that couldn’t be bothered to go to law school. The guy is a lawyer, and he throws around terms like “incontrovertible.” The trial hasn’t even begun and he says “incontrovertible.” Wow!

Of course, defendants are “entitled” to “costly” experts. The defendant might very well be insane. At a minimum, he is entitled to explore that defense.

Now, giving Toobin some credit, to my knowledge he never actually represented someone accused of a crime, and since he couldn’t hack it as a lawyer he doesn’t make any secret that the point of his life is to sell books to people with low levels of education but disposable income. But, what I don’t get is why lawyers take this guy seriously. He doesn’t even pretend to be writing for an educated audience.

Now, of course, there may be arguments that can be made about reducing costs of defenses. But, there are also arguments to be made about reducing resources available for law enforcement and prosecution. (For instance, I think in a rape case, no more than $5,000 should be spent on 1) salaries of policemen, measured by the hour (if they spent $4,999 trying to find the defendant, the state can only spend $1 on all attorneys fees); 2) salaries of lawyers; and 3) experts. If it is worth more than this, a state legislature – not the executive – should decide whether the rape is really worth prosecuting or not, and the legislature can hear all sorts of evidence about whether the putative rape “victim” is really worth the time and expense. The legislature could also hear from the accused about why his freedom is worth more to the state or country than any sort of penal interest that might be served in putting him in jail.)

Posted by: S.cotus | Jan 31, 2008 11:54:51 AM

The Nichols case illustrates a troubling paradox in death-penalty jurisprudence: the more heinous a crime — and the more incontrovertible the evidence of a defendant’s guilt — the greater the cost of the defense may be

Why is this a "paradox"? If there is "incontrovertible" evidence of a defendant's guilt, then it logically follows that it's going to be difficult (and therefore expensive) to mount any sort of plausible defense.

Mr. Cotus, anyone might be insane. I don't think it's outlandish to suggest that the defendant's main reason for "exploring" that possibility is that it's highly unlikely that the prosecution will be unable to meet its burden of proof in its affirmative case.

Posted by: | Jan 31, 2008 12:00:27 PM

As a practical matter, a lot of people (sometimes myself) call their own positions “incontrovertible.” For example, it is incontrovertible and undeniable, that women have a right to abort pregnancies. Any attempt to prove otherwise is futile.

As to your comments about “exploring” the possibility of an insanity defense. Most defense lawyers (an, in fact, most judges) know when it is professional responsible to obtain an expert in a case where a defendant’s conduct may verge on insane. There is no indication (even in Toobin’s screed) that the defense was irresponsible or profligate in retaining experts. (There are some gray areas in this, if the defendants tells other people that he will try and “cop” an insanity plea, but this isn’t the issue.)

Posted by: S.cotus | Jan 31, 2008 12:16:50 PM

As a practical matter, a lot of people sometimes myself) call their own positions “incontrovertible.”

Having read a number of briefs, I don't doubt this. Words like "incontrovertible" may send up red flags, but that doesn't mean that they're never appropriate. I agree that there's been no showing that exploring the insanity defense would be irresponsible, but do you dispute the idea that the prosecution's case is pretty strong (if not "incontrovertible") and that an insanity defense is likely the defendant's only hope of beating the charges?

Posted by: | Jan 31, 2008 2:19:44 PM

I don’t know enough about the prosecution’s case, and neither do you. The witnesses have not been subject to cross-examination, and all you know is what you read in the paper or view on TV. Given a good media strategy, developed by a good PR firm, you can usually get whatever message you want out via the media.

And, certainly, we don’t know enough about any defense case, with without the funding necessary to develop it.

Posted by: S.cotus | Jan 31, 2008 2:44:12 PM

Fair points.

Posted by: | Jan 31, 2008 2:54:16 PM

Give me a break. This guy did it. Everyone with an ounce of sense knows it. Why we need to spend all this taxpayer money shows a complete lack of discipline on the part of the system. The judge should set a budget and that's that. Non-indigent people don't have unlimited resources--why should the indigent, particularly those who have previous records, and are responsible for their own indigency.

Posted by: federalist | Feb 3, 2008 1:41:27 PM

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