Federal prosecutors would face higher legal standards to pursue death charges against Nichols based on the fact that one of his four victims was a federal agent. And the U.S. Attorney must first begin the lengthy process of getting approval from the Justice Department.
Still, Fulton County District Attorney Paul Howard said he will speak with U.S. Attorney David Nahmias this week about federal charges after a judge was forced to sentence Nichols to life in prison because a deadlocked state jury failed to reach a unanimous verdict on the death penalty.
Nichols, 37, was found guilty last month of murdering Superior Court Judge Rowland Barnes, court reporter Julie Ann Brandau, Deputy Hoyt Teasley and federal agent David Wilhelm in a 2005 spree that began in a downtown Atlanta courthouse.
He was spared the death penalty when a Fulton County jury failed to reach a unanimous death penalty verdict, as required by Georgia law. The jury split 9-3, with nine in favor of death penalty and three in favor of life without parole.
Minutes after Nichols was sentenced to life without parole on Saturday, Howard said he could face two more trials - one in suburban Gwinnett County for kidnapping and the federal death penalty case.
"We would ask the community to prepare for the other two rounds of litigation involving Brian Nichols," Howard said.
A death sentence in federal court would be vindication of sorts for Howard, who turned down a plea deal at the urging of relatives of victims who sought the death penalty.
"I'm extremely disappointed that this murderer has been shown the mercy that he did not show on March 11, 2005," said Candee Wilhelm, widow of the slain agent.
Nahmias spokesman Patrick Crosby said prosecutors "will review the evidence, the applicable federal law and policy, and the other circumstances of the case to determine whether and how to proceed."
If they decide to go forward, they will face "an uphill challenge," said Kent Alexander, a former U.S. Attorney in Atlanta who is now general counsel at Emory University.
He said prosecutors would likely need to prove that Wilhelm was killed while in the line of duty or that Nichols knew the agent's identity.
Wilhelm, a customs agent, was gunned down at a north Atlanta home he was renovating hours after Nichols escaped from the courthouse. Nichols told investigators that he knew Wilhelm was a federal officer, and his federal badge was found in Wilhelm's truck, which Nichols stole.
They must also consider whether they can secure a death penalty for a single murder when a Fulton County jury failed to sentence Nichols to death on four murder charges. Jurors would be drawn from largely the same jury pool as Fulton County, one of the most reluctant jurisdictions in Georgia to return a death penalty.
"The bar is pretty high," Alexander said. "I'm sure the U.S. Attorney's office will try to find a way to do this, I just don't know if they can."