The Ohio Supreme Court’s decision this week in State v. Diar is rather interesting, in light of some recent developments in the death penalty in Georgia.  In most situations, a holdout juror, unless he can persuade everyone else to adopt his view, can do more than deadlock the jury.  For example, if the jury’s considering aggravated murder and the lesser-included offense of murder, all of them have to agree on one or the other.

That’s not true for the penalty phase of a capital case.  As Diar makes plain, the jury has to be instructed that if a single juror won’t agree to impose a death sentence, then a life sentence has to be imposed.

Brian Nichols looked to be a poster-boy for capital punishment.  Back in 2005, while he was being escorted through an Atlanta courthouse to stand trial for rape and kidnapping, he managed to overpower the deputy and grab her gun.  He shot her, then entered the courtroom and killed the judge and a clerk.  Somehow, he managed to escape the courthouse, but ran into another deputy.  He killed him as well, then carjacked a vehicle, pistol-whipping the driver.  He drove across town, stopping at a house where he killed the occupant, who turned out to be a Federal customs agent.  Nichols continued his journey, found a woman as she was returning to her apartment, and forced his way in.  She eventually managed to persuade him to surrender to police.  Shortly thereafter, Nichols was indicted in the four killings, and the prosecutor announced, to no one’s surprise, that he was seeking the death penalty.  There wasn’t much real question he would get it; if there was any lingering doubt of Nichols guilt, his confession dispelled them.

And that’s where things went all to hell.  Nichols had to be tried in the same courthouse in which the killings had occurred.  A visiting judge had to be brought in, and to remove any potential conflict of interest, the local public defenders office brought in two death penalty specialists from North Carolina to try the case.  The case was incredibly complicated in its presentation — Nichols was charged with 54 crimes, involving 478 potential witnesses and 11 separate crime scenes, and the state turned over 32,000 pages of documents and 400 hours of taped phone calls to the defense – requiring the Nichols’ attorneys to demand more resources to adequately represent him. 

And resources they got.  In fact, by November of 2007, the costs had reached $1.8 million for the defense alone, bankrupting the state’s public defender system and requiring a delay of the trial until funding could be restored.  By the time of the trial, which concluded last week, the defense tab was close to $3 million, and it was estimated that, after you threw in costs of the prosecution and trial, the total bill of was around three times that. 

A year ago, the prosecutor had turned down a deal to allow Nichols to plead guilty and get life in prison without the possiblity of parole.  Last week, that’s exactly what happened.  The jury deadlocked 9-3 in favor of execution, leaving the sentence up to the judge; life without parole is what he imposed.

One might think this debacle would would prompt a reconsideration of the death penalty in Georgia.  After all, in addition to the cost, the result simply adds to the mounting evidence of the death penalty’s arbitrariness.  As Richard Dieter, executive director of the Death Penalty Information Center, put it,

This case shows how arbitrary and irrational the death penalty can be.  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.

Plus, as a Georgia law professor noted, the state supreme court is required to consider whether a death sentence is proportionate.  How is Nichol’s life sentence going to impact the next capital sentence imposed on someone for killing a police officer?

So, yes, Georgia is reconsidering the death penalty, though not in the way it might be anticipated:  a bevy of bills have been introduced in the legislature eliminating the unanimity requirement for a death sentence.  Whether that would pass constitutional muster is another matter; although the US Supreme Court has held that unanimity is not a requirement for state juries (although it is for federal), it’s also repeatedly held that the death penalty is a qualitatively different punishment, and has applied much stricter standards to cases involving that penalty.

Actually, Nichols’ reprieve here might have been the result of some oversight on the prosecutors’ part.  In voir dire, three jurors expressed misgivings about the death penalty.  As the New York Times reported last week,

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.

Then again, what may be the most telling fact about the status of the death penalty in America is that you wind up with jurors like that in a trial in Georgia.

* * * * *

Updated Holiday Schedule.  Turns out this won’t be my last post for the year.  On Monday, I’ll have that post I promised you on some key cases that were argued in the Ohio Supreme Court this week.  On Tuesday, I’ll close out with a Christmas Story.  When The Briefcase returns on January 5, we’ll spend the week reviewing the big decisions from the Columbus Seven over the past year.