Superior Court Judge James Bodiford said prosecutors violated a court order by playing a tape of Nichols apparently threatening to kill Fulton County District Attorney Paul Howard without first providing defense attorneys a transcript of the call.
But after taking a 20-minute recess to consider the defense motion for a mistrial, he said the mistake was a "technical violation" that did not merit a mistrial. He did, however, concede that the evidence would likely come up in an appeal of whatever sentence Nichols receives.
Nichols was found guilty Nov. 7 of murdering a judge, a court reporter, a sheriff's deputy and a federal agent when he escaped from a 2005 rape trial in Atlanta. The jury is now hearing testimony about whether Nichols should receive a death sentence.
Prosecutors this week played a June 2006 phone call from Nichols in which he said if he could have done something different, he would have "stopped on the third floor and shot your a--." Howard works on the third floor of the Fulton County Courthouse.
Nichols' attorneys filed a motion seeking a mistrial Thursday, saying they were not provided a transcript of the call before the evidence was introduced. The motion contends the "content of the call was highly prejudicial to Mr. Nichols and his right to a fair trial."
Nichols' attorneys, who have repeatedly asked the judge to declare a mistrial throughout the case, said the phone call caught the defense team by surprise and did irreparable damage to their case.
"It's a bell that simply can't be unrung," defense attorney Robert McGlasson said. "It's so clear this is prejudicial."
Prosecutors said that they only discovered the evidence on Wednesday and they did not mean to mislead the defense team.
"We're just asking now that the court make a ruling finding the appropriate remedy," prosecutor Kellie Hill said. "And we would ask it not be a mistrial. There are ways to deal with this without ordering a mistrial."