A Columbus man sentenced to 20 years in prison for voluntary manslaughter has had his request for a new trial granted because a former Muscogee County judge acted improperly during the 2007 trial, according to court records.
In an order issued by Superior Court Chief Judge John Allen on Tuesday, Hendrick Nickerson will receive a new trial based on the actions of then Judge Doug Pullen.
The motion for a new trial was granted because “the Trial Court improperly injected himself into the trial by questioning the Defendant in such a manner that reflected an improper bias against the Defendant and the credibility of his testimony,” according to Allen‘s order.
Allen’s order came after a Monday hearing in his court.
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Pullen is no longer on the bench, retiring in September 2011 amid a misconduct investigation by the Judicial Qualifications Commission.
In the past three years, at least four Pullen cases have been reversed because of improper comments made by Pullen from the bench. Nickerson was originally represented by defense attorney Melvin Cooper, and his appeal was filed by attorney Mark Shelnutt.
Nickerson was convicted in November 2007 of voluntary manslaughter in the March 22, 2007, shooting death of Kevin Cummings. Both men were armed when Nickerson shot Cummings in the back. Nickerson claimed self-defense.
“The judge stepped into the role of the prosecutor,” Shelnutt said of Pullen, a former district attorney. “He more or less decided to cross examine my client and do what the prosecutor should do.”
After Nickerson demonstrated how he shot Cooper during the trial, Pullen instructed to the defendant to get up and show him how he shot Cooper, Shelnutt said.
“After my client does it again for the judge, the judge asked him how many times he fired,” Shelnutt said. “That is the DA’s job.”
The prosecutors sought felony and malice murder convictions against Nickerson, but the jury acquitted him of those charges after two hours of deliberations. Because of that, a retrial of Nickerson could be tricky, said Assistant District Attorney Don Kelly.
“We are in a situation we would prefer not to be in because our only option would be to go forward and try him on voluntary manslaughter,” Kelly said.
Pullen sentenced Nickerson to the maximum penalty for the manslaughter charge, 20 years in state prison.
Shelnutt said he has approached prosecutors with an offer that could free Nickerson with time served.
“I think that would be reasonable instead of having to go back and retry it,” Shelnutt said.
The prosecutors can ask for Allen’s order to be overruled by the Georgia Court of Appeals. Kelly said his office has not decided how it will proceed.