Harold NicholsA special judge must decide whether to release a convicted serial rapist from death row who was found guilty in a 1988 murder in Chattanooga.
Harold Wayne Nichols received 60 years for the first-degree felony murder of 21-year-old Karen Pulley, an additional 15 years for aggravated rape, and was sentenced to death in 1990. But a judge at the time incorrectly applied a vague enhancement statute that sent Nichols to death row, his post-conviction defenders argued Wednesday in Hamilton County.
And because of a United States Supreme Court decision from 2015 that's since changed those statutes, prosecutors seemed to agree that Nichols, 57, is eligible to be released from death row.
Now, it's up to Judge Don Ash to decide whether to accept these attorneys' agreement. Ash was specially appointed to the case after Hamilton County Criminal Court Judge Barry Steelman, a former prosecutor, recused himself from Nichols' post-conviction petition.
"If I accept this agreed order, we'll accept his [post-conviction] petition," Ash said Wednesday in a Hamilton County General Sessions courtroom. "I do have legitimate concerns about whether this is appropriate or not."
Ash said he would release his opinion in the next two to three weeks, likely before Nichols' next court date on March 14.
Nichols, who is being held in Riverbend Maximum Security Institution in Nashville, would have to continue serving his life sentences. He was also convicted of several rapes in Hamilton County, court records show.
According to Nichols' defenders, you can only give someone the death penalty in Tennessee for a first-degree murder conviction if jurors determine at least one "aggravating factor" beyond a reasonable doubt. When you're being sentenced for a crime, an aggravating factor is something that supports a stiffer penalty. And in this case, the factor in question was whether Nichols had been convicted of "one or more felonies that involved violence or threat of violence to the person," according to a 73-page post-conviction petition his defenders filed in Hamilton County.
But the judge at the time never instructed jurors on the definition of "rape" or the phrase "involving the use of violence," Nichols' defenders said. Judges regularly read jurors instructions on how to interpret certain elements of a crime before they deliberate.
"Without these findings of the trial court, Mr. Nichols would not have been eligible for and could not have received a death sentence," the defenders wrote.
Prosecutors conceded that point Wednesday.
"In this particular case, the court notified the jury of what [his] prior charge was - rape - as opposed to the jury learning those facts," Hamilton County District Attorney General Neal Pinkston said. "Under that situation, the state is willing to concede and offer a modified sentence to the court."
Ash and the lawyers discussed Wednesday how courts nationwide were split on how to handle this issue. For instance, defenders pointed out in their motion, Florida called on judges to determine aggravating factors, not jurors. Ash also wanted to know if prosecutors were able to reach family members of Nichols' victims, but Pinkston said his office hadn't been able to get in contact with them.
Before he releases his opinion, Ash said he would accept more briefs from prosecutors and defenders. But overall, he seemed apprehensive of the agreement to remove him from death row and the longevity of Nichols' case.
"This has gone on long enough," he said.
Contact staff writer Zack Peterson at zpeterson@timesfreepress.com or 423-757-6347. Follow him on Twitter @zackpeterson918.