Judge David Nichols

Judge David Nichols
Retired Judge David Nichols was elected to the Whatcom County Superior Court in 1985 and served for 20 years before retiring in 2005. During his years on the bench, Judge Nichols presided over a broad range of civil and criminal cases, including Clark Elmore’s death penalty trial. Clark Elmore is currently on death row in Walla Walla.
The fundamental unfairness of the process motivated me to change my mind. I thought if I ever get another one of these cases, I’m going to dismiss it. I was not going to have my name on one of these cases again.

When we tried Clark Elmore’s death penalty case, nobody in Whatcom County had the foggiest idea of what a capital case entailed. I actually had to travel to Texas to take a seminar for judges on how to try death penalty cases. We heard over and over again the expression death is different, meaning death trials are completely different from anything else a judge is going to preside over. Mr. Elmore’s case was a bit unique because he already pled guilty, so the trial only concerned whether or not he should receive a death sentence, as opposed to life without parole. At the time I was not viscerally disturbed by the process.

The Green River case changed the way I thought about the death penalty. When Gary Ridgway was allowed to plead guilty in exchange for sharing information, I just thought, “This is insanity.” We’re putting people to death for a single murder, sometimes in the course of robbing a pizza stand, and here we have a man who killed over 50 people and he avoids death. If a defendant has no information to bargain with, they could receive the death penalty for a single occurrence, but if they have something to sell, the prosecutor is going to listen. The “worst of the worst” have pled guilty and avoided the death penalty. If we really believed in the idea of the “worst of the worst,” we would not make deals. But we don’t believe that. We want to get these cases resolved as quickly as possible because the criminal justice system is massively overloaded.

We are all aware of the statistics of how capital punishment disproportionately impacts poor people more than rich people. Capital cases are inherently in the hands of county prosecutors who may or may not have a budget, may or may not have a political platform that she or he wants to advance. The fundamental unfairness of the process motivated me to change my mind. I thought if I ever get another one of these cases, I’m going to dismiss it. I was not going to have my name on one of these cases again.

Financially speaking, we know how expensive it is to try and execute someone. These appeals go on and on, and they don’t begin to compare with the cost of incarcerating somebody for life. It’s much cheaper to house them. I think the recession has caused a lot of lawmakers to sit up and consider where we are spending our money. Do we really want to spend it on death penalty cases which get us absolutely nothing for our buck?

Even if we tossed out eye-witness identification – which has always been a huge problem in all criminal cases because it is notoriously inaccurate – or instituted mandatory DNA testing – which is not even available in every case – the problem is far bigger and broader than that. I think for tons of reason the state simply should not be in the business of killing people. I don't believe a death sentence helps even the families of the victims. In effect, we are condemning them to years and years of emotional upheaval with no clear resolution, victimizing them over and over as the appeals drag on. What good is there in that? Ultimately, I think that most people who understand how our death penalty system works would say that it’s a sticky, messy, ugly part of our criminal justice system and we would be better off without it.