Brian Nichols: What Set It Off?

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Brian Nichols was unprepared for a kangaroo trial at the Fulton County Courthouse, especially since Blacks hold most of the key political offices in the county. These Blacks, however, must tow the white supremacist line. White supremacists still control the county. Thirty-five years ago, Dean Cowan of the University of Georgia Law School stated that I was a "disgrace to the Negro race" and I would never practice law in Georgia. I refused to accept a master-servant relationship at the law school. Georgia still has a slave culture. Black lawyers are instructed to be subservient or else.

Four years ago, I traveled to Atlanta several times to show support for Jamil Abdullah Al-Amin (H. Rap Brown) at his capital trial. No high-profile Black leader attended the trial on orders of the Democratic Party. I search for the forest and not the trees when I attend a trial. White supremacy is a system. It has a modus operandi.

Al-Amin was convicted because of ineffective assistance of counsel and jury tampering by a white, female trial judge; and a Black, female deputy sheriff. He was accused of fatally shooting a deputy sheriff and seriously wounding another deputy. At the trial, the sequestered jury was placed under the care and custody of the Fulton County sheriff's office. The female deputy did a snow job on the jury in collaboration with the trial judge in plain view of Al-Amin's defense lawyers. The jury was hooked. It sent Al-Amin to the Big House despite the lack of incriminating evidence. When a defendant is accused of killing a deputy sheriff, the victim's employer should not be guarding the chicken coop.

Nichols was arrested in August 2004 for allegedly raping his former fiancée after a seven-year fling. The business executive had him cooped up in a high-scale condominium. He had played college football, mastered martial arts and was a computer expert. While his female sponsor was at work, Nichols was impregnating another woman. Nobody ever told him about a woman's scorn.

The first jolt against Nichols was the denial of his Eighth Amendment right to reasonable bail, especially since no evidence of his being a flight risk surfaced. Instead, he was denied bail. This should have been his first clue that he was being railroaded given his lack of a criminal history.

If he had been released on his own recognizance, as the Eighth Amendment required here, no carnage would have ever occurred and he would have probably been acquitted after the first trial. Preventive detention usually seals a defendant's legal fate.

In December 2004, Nichols was given new counsel. Two months later, he was on trial for his life. This smells like the Scottsboro Boys case. Even though his lawyer was unprepared, the jury still voted 8 to 4 in favor of acquittal. The jury found gaping holes in the accuser's testimony.

This result shocked the defense lawyer who, from the outset, presumed that Nichols was guilty. When a lawyer presumes his client is guilty, contrary to the law, the defendant is playing Russian roulette at trial. A defendant must enjoy the presumption of innocence throughout the trial.

As was shown in the Scottsboro Boys case, no Black defendant can presumptively secure effective assistance of counsel. This directly affects the possibility of any Black defendant receiving a fair trial. An Illinois judge once noted, "Of all the rights that an accused person has, the right to be represented by counsel is by far the most pervasive, for it affects his ability to assert any other rights he may have."

Nichols' lawyer failed to protect his rights. A hung jury was declared on a Monday. The very next day, the judge, Rowland Barnes, and the prosecutor arbitrarily and summarily commenced the second trial while Nichols' lawyer was mouthing that he was certain that Nichols would be convicted in the second trial after an 8-4 jury favored an acquittal in the first trial. This is strange logic.

When a hung jury favors the defendant, the defense attorney and not the prosecutor is in the driver's seat. The prosecutor's case is locked in and a defendant is like a student who obtains the examination before the date of the test. He could score an acquittal.

A good defense lawyer should be well-armed to ambush the prosecution's witnesses during the second trial. A mistrial produces a free deposition. In the hands of a competent lawyer, this deposition could be devastating on cross-examination. Nichols' lawyer, on the other hand, was ready to inexplicably fumble the ball on second and goal.

Nichols had a good reason to believe that his second trial was a judicial lynching. Under Georgia law, it is illegal to start a second trial without the prior trial transcripts. In New York, it is called Rosario material and it allows a defendant to confront witnesses with their prior statements.

Georgia law requires that the judge must order a transcript of the prior trial and make it available to the defense and the defense is entitled to this material in preparation for the second trial. This was a judicial breach and in derogation of Nichols' Sixth Amendment rights.

After a judge and a prosecutor decide to prosecute a defendant in violation of a fundamental, constitutional right, a defense attorney is not weaponless. The judge and prosecutor are proceeding in excess of law. The appropriate remedy is for the defendant to petition a higher court for a writ of prohibition with the judge and the prosecutor named as respondents.

The judge, prosecutor and defense attorney were obviously conspiring against Nichols. Facing a life sentence after a judicial lynching, Nichols went to the Old Testament: "an eye for an eye and a tooth for a tooth." In the murder cases which will follow, Nichols will find that lynching is still legal in Georgia.

Bernard Burden was lynched in Coweta County, GA, last October. The police immediately tainted the crime scene. His white assailants are still at large. Burden was dating a white woman in rural Georgia. In the meantime, Georgia summarily concluded that Burden had lynched himself.

In addition to allegedly shooting the judge, Nichols is also accused of killing the court stenographer, Julie Brandau, who is noted for making cookies for juries. There is not this much love in the world. A similar ploy was used to convict Al-Amin. A courthouse is indeed a war zone. Unfortunately, Blacks are indifferent until they are illegally seized and wrongfully prosecuted themselves.

Most juries see the judge and the prosecutor as wearing the same uniform, with the court stenographer acting as an accomplice with the judge. A court stenographer should never have personal contact with a jury. No defense lawyer should allow a jury to eat cookies out of a court stenographer's hands.

The criminal justice system is based on white, male jurisprudence. At its core, the criminal justice system is inspired by biological theories consisting of but not limited to male-male competition, Batesman's principle, Malthusian population theory, sexual selection, female choice and Social Darwinism.

This is biological warfare and, like AIDS, the criminal justice system is a tool employed by white supremacists to exterminate Blacks. Biological theories are the fuel that drives the criminal justice system, and they are key components of white supremacy. This analysis, however, is beyond the ken of Black leaders. All of the local Black elected officials in the criminal justice system should have to pay for Nichols' carnage. Black elected officials were supposed to be the buffer between white supremacists and powerless Blacks. Instead, these officials, like Paul Howard, the District Attorney of Fulton County, are the embodiment of Franz Fanon's "Black Skin, White Mask."

Frederick Douglass noted, "You will never get everything you pay for, but you will pay for everything you get." He was warning Blacks who tithe for pie-in-the-sky sermons while waiting on Good Samaritans to deliver critical information, analysis and thinking. We get nothing for something while giving something for nothing.

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