The Indy Lawyer with a Manslaughter Conviction

Mark Nicholson has racked up 17 courtroom wins as a public defender for the city’s poorest citizens, becoming a thorn in the side of the Marion County prosecutor’s office. He has lost only six cases—seven if you count his own manslaughter sentence.

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This article appeared in the December 2015 issue and is part of Indianapolis Monthly’s celebration of longform journalism. 

When I first heard rumors of a local lawyer with a manslaughter in his past, I was skeptical. It sounded like the plot of a scrapped John Grisham novel. I thought I was on the receiving end of a tall tale over cocktails. But as I reported the story and met the subject, I turned up an even more complicated, tragic and redemptive narrative than the one that had been floating around. -Adam Wren, contributing editor


 

Mark Nicholson

Photo by Tony Vilainis

I. “I was born in iniquity, raised in chaos, and survived destruction. Ever since I can remember, I wanted to be in the military, serve in combat, and be a hero of some sort. I had no idea that events in my life would turn me from a would-be hero to a convicted killer and villain to so many.” —from Mark Nicholson’s working book manuscript

Beneath the Indianapolis City-County Building, in stuffy Court 21, Mark Nicholson found himself locked in the kind of gritty legal battle that has defined the last two decades of his life. The public defender began to deliver a closing argument so perfectly pitched, so emotional, that his co-counsel and the judge would later say he appeared to be on the verge of tears.

But first, he had to sidestep a procedural land mine.

Nicholson was defending a man in a he-said-she-said case involving a domestic dispute at the Red Garter Gentleman’s Club. Among the city’s attorneys, Court 21 is known for its tense conflicts, often revolving around protective orders and fractured family relationships. The trial seemed to be going Nicholson’s way, thanks in part to his not-so-secret weapon: His arguments almost always include his trademark phrase, “travesty of justice.” A cop turning off his body camera right before he claims to have found marijuana on a client? Travesty of justice! Another cop testifying that a drug dog was present when it wasn’t? Travesty of justice! Something about the saying just turns juries in his favor.

Before he could deploy the phrase in the closing arguments of this particular trial, though, he had to deal with Marion County deputy prosecutor Erin Warrner. Warrner was familiar with Nicholson’s theatrics, and she filed a motion to prevent him from using the melodramatic expression any further. It was improper procedure, she argued. Perhaps that would throw Nicholson off his game.

“Saying that I believe that the evidence will show the state’s case is a travesty of justice—jurors don’t have to believe that,” Nicholson told the judge. “I just don’t think it’s proper that the government of Indiana doesn’t like something that I say and can’t really cite any rule or case law that supports it.”

The judge denied the motion. Nicholson sprinkled his argument with the slogan as usual. When the jury delivered its verdict a few hours later, his client was found not guilty on all counts.

Nicholson has made a name for himself in the local legal community over the last few years, but it’s not just his work in the courtroom that has caught people’s attention. He doesn’t represent the city’s moneyed athletes or politicians, after all. He’s a lawyer for the angry customer who allegedly assaulted a Rally’s manager when her Big Buford wasn’t appropriately topped. The troubled black veteran arrested for firing a warning shot in the air after being threatened by a white motorist. The drunk Super Bowl reveler charged with falsely accusing police of jailhouse rape. Sure, the scrappy Nicholson has racked up an impressive 17–6 record and become a thorn in the side of the prosecutor’s office. His real distinguishing characteristic, however, comes not from his present, but from his past.

Truth is, there are whispers about Mark Nicholson. Dark rumors, like lawyer jokes without punch lines. Some colleagues have even dug into his past themselves, finding a story that’s both troubling and redemptive. To his enemies, the real travesty of justice is that Nicholson is not rotting in a state prison cell for murder.

 

Nicholson began his official legal career working as a civil court bailiff in 2004, presiding over prosaic divorce and bankruptcy proceedings. He took the job shortly after enrolling at the Indiana University School of Law in Indianapolis in 2004. He pocketed a salary of approximately $21,000, not a lot of money for a full-time gig. But to Nicholson, it was a princely sum. He knew he was lucky to get the job, one for which many threadbare IUPUI law students compete. You could serve in an honest-to-God courtroom during the day, and take legal classes at night.

He worked for Marion Superior Court Judge Ken Johnson, a 37-year veteran of the bench. A devout white Baptist born in Knoxville, Tennessee, Johnson liked to joke that the most diverse person he encountered growing up was the occasional Catholic. In Nicholson, Johnson saw a young black man who could help him better relate to some of the people in his courtroom. In Johnson, Nicholson gained a fatherly mentor who shared his Christian faith. The two became fast friends, talking for hours on end in the judge’s chambers after work, their banter sounding as if it could have been lifted from a 1990s buddy sitcom.

“I want to be a homie,” a clueless but well-meaning Johnson once told Nicholson, asking him to explain his perspective on issues ranging from race relations to homelessness.

“No, Judge, you can’t be a homie,” Nicholson replied.

One day, the judge had an errand to run. He took Nicholson along. The judge drove his vehicle up to the steps of the Statehouse, where he told Nicholson to go inside and deliver a transcript to the office of Indiana Supreme Court Justice Frank Sullivan Jr.

Nicholson made his way to the justice’s third floor chambers, with its vaulted ceilings and 100-year-old furniture. There, he introduced himself. Something about the man struck Sullivan as impressive, and he invited Nicholson into his office. “Do you have a minute to talk?”

For a state Supreme Court justice, Nicholson, a lowly bailiff and law school student, definitely could spare a few minutes. Sullivan wanted to know his story. How did he become a bailiff? Where did he go to college?

Nicholson, 37 at the time, began to share his life story. He had been born in New Castle in 1969 to lower-middle-class parents, and graduated from Chrysler High School in 1987. Eight hours after his high-school graduation, he left New Castle for U.S. Army basic training at South Carolina’s Fort Jackson. With a goal of becoming a Green Beret, he then went to Fort Gordon in Atlanta. There, he received advanced training. A few months later, he deployed for more than a year to the Republic of South Korea. He returned to Indianapolis for a short time, stationed at Fort Benjamin Harrison, then did a stint at North Carolina’s Fort Bragg. On Christmas Eve 1989, he shipped off again to Panama, where he served in combat operations as a grenadier. Once he was back stateside, he completed coursework at Grace College. Now, having traded his dream of military combat for courtroom combat, he was in law school.

Nicholson felt he was imposing on the judge’s busy schedule. Still, Sullivan remained intrigued. There was just one problem. The chronology of Nicholson’s life didn’t quite add up.

“It sounds like there’s at least 10 years of your life missing,” the judge said.

 

NicholsonII. “It was Saturday night, January 26, 1991, when I got shot. He pointed the gun at my chest and fired one shot, right into my chest. It hurt when it hit. I’ve never been shot before and the pain was unbearable. It was a sharp, burning pain. I grabbed my chest. The blood started oozing from my body. I fell to the ground. I laid on the cool, hard cement sidewalk. Now the blood was sliding through my fingers. The man with the gun was gone. And my life would be gone soon. Then I woke up with a shout, writhing in pain, sweating and scared. It was the worst nightmare of my life. I had no idea that a week later on February 2, 1991, that I would be accused of shooting two unknown men in the chest, murdering one of them.” —from Nicholson’s manuscript

In the months after he returned from Panama in May of 1990, one of the first things Nicholson did was apply for a permit to carry a handgun. For an ROTC Army Ranger, the gun was a bridge between military and civilian life. At Jeff’s Guns in New Castle, he bought a .380 semiautomatic, silver with a black handle.

That summer, he lived with his parents and got a job at the same Hardee’s he had worked at in high school. After his eight hours there, he handled the midnight shift at a Village Pantry, saving money so he could attend Indiana State University in Terre Haute, where he planned to study finance.

When he moved into Hines Hall at ISU that fall, Nicholson met Mike Boswell and Brian Holdcraft, who lived a few doors down. He was the only black student on that floor, and the two went out of their way to make him feel welcome.

One Saturday the following semester, on February 2, 1991, Nicholson passed by their dorm room around 6 p.m. The two were talking and drinking whiskey, pre-partying for a fraternity event later that evening. Soon, they were making different plans. On a lark, the three of them decided to go to the Fourth Quarter, a bar in Terre Haute. Nicholson, who had not been drinking, offered to drive. His gun lay underneath his seat. When they arrived, Nicholson looked around inside. The place was dead. They decided to search for a livelier spot. But at another nearby bar, Hightowers, they struck out again. Finally, around 9 p.m., they settled in at the Ballyhoo Tavern, a popular student watering hole that had been around since the 1940s. Exiting his car, Nicholson put his holstered gun in his jacket.

Inside, the three friends sat in a booth. They took turns purchasing pitchers of beer. The place was packed with fraternity and sorority members, and Nicholson was the only black student there that night. Eventually, he walked to the bar, while Boswell and Holdcraft moved to a center table.

After chatting up a girl he recognized, Nicholson turned back to the center table. He noticed it was empty. The place had cleared out, and fast. He exited the tavern, looking for Boswell and Holdcraft.

What happened next isn’t entirely clear. According to legal documents, Nicholson said he saw an angry mob surrounding Boswell just outside the bar, and he looked like he already had been hit a few times. Someone had him by the collar. Nicholson rushed over, stepping in between Boswell and the man Nicholson said was beating him, Scott Toweson, another ISU student. “Break it up!” Nicholson said. “Leave him alone.”

Boswell had been accused of stealing a woman’s purse. According to Nicholson, Toweson had gone after Boswell, and a drunken melee spilled out into the parking lot. Toweson turned away from Boswell and then, Nicholson claimed, got aggressive with him: “You better stay out of this, nigger, or I’ll shoot your black ass.”

Toweson later told police a story he repeated on the witness stand: He confronted Boswell outside about the stolen purse, but he never put his hands on him. Toweson also testified that he never threatened Nicholson or called him any derogatory names.

Regardless of which account is true, Nicholson eventually reached into his jacket for his gun. He raised the pistol into the air and fired a warning shot.

Boswell, standing behind Nicholson now, watched the scene play out. Holdcraft had gone back into the tavern. Inside the Ballyhoo, Brian Hogue, another bartender, called 911. Hogue was a 24-year-old ISU senior from Mooresville, and built like a barrel. Breaking up bar fights was part of his job description. But he had a softer side, too, the kind of guy who wasn’t above handfeeding beer and pizza to a quadriplegic, wheelchair-bound regular customer.

“A guy has a gun,” Hogue told the dispatcher, “and apparently he fired a shot.” Hogue sat the receiver down and headed for the door.

Outside the tavern, Nicholson claims Boswell grabbed the gun from him as Hogue stood in the doorway, barring the two from coming back inside the tavern. Now angry, Nicholson says he tried to wrestle the gun back from his friend, and two more shots fired amid the struggle. Alarmed, the two quickly left the scene, getting in Nicholson’s car as police lights appeared on the horizon.

They headed east, and the cops gave chase. After driving only a few blocks, the suspects were surrounded. Nicholson swore the two were unaware that the bullets fired had hit anyone. But one bullet had lodged in the liver of Douglas Beauregard, 21, an ISU student from Indianapolis. The other had hit Hogue in the heart, killing him instantly.

Detained at City Hall, Boswell was charged with stealing the woman’s purse. Police interrogated him, but took their time before questioning Nicholson, who grew impatient. “I think you can talk to me since I’m the shooter and I can shed some light on the situation,” Nicholson said, according to patrolmen there that night.

They told him that Hogue had died. Nicholson was being charged with murder.

 

Because it involved the death of a young man in a small town, the trial dominated local newscasts and the Terre Haute Tribune Star for weeks. The court assigned Nicholson a public defender named Jessie Cook, who specialized in major felonies and capital offenses. (She would go on to defend high-profile clients like Colts player Josh McNary, for whom she would deliver a not-guilty verdict in a rape case earlier this year.) Her co-attorney was Nina Alexander. Together, they faced Vigo County deputy prosecutors Harold Johnston and Sarah Mullican.

Ahead of the June 1991 trial, media reports swirled of discord between Nicholson and his legal team. That May, Nicholson took the unusual step of asking Judge Michael Eldred to grant him the right to act as his own counsel, alongside Cook and Alexander. As he awaited trial in jail, Nicholson had become fascinated by the law. Eldred granted his wish.

Boswell was the state’s key witness. Raising a different version of events, he testified that he did not struggle with Nicholson for the gun. Instead, it was Hogue and Nicholson who had fought each other for possession of the firearm. Shortly after Boswell was detained for stealing the woman’s purse, police dropped all charges against him. At trial, he testified he saw Nicholson shoot Hogue. In his peripheral vision, Boswell said he saw Nicholson “push Hogue away, back up, and shoot him.”

The prosecution and defense both agreed that three shots had been fired. But the prosecution argued that Nicholson killed Hogue and recklessly injured Beauregard. The defense claimed that after shooting a warning shot, Nicholson struggled with Boswell for the gun and it accidentally fired twice more.

On cross-examination, Nicholson’s attorneys assailed Boswell’s reliability. They forced Boswell into admitting he was drunk that night (he passed out at the police station after the shooting). But the prosecution presented eight witnesses who were inside the bar. Three of them testified that they saw Nicholson fire his weapon more than once. Two witnesses, Cheryl Oberholtzer of Terre Haute and Sarah Hadley of Cincinnati, said they saw Hogue retreat from Nicholson before Nicholson fired. “He was backing up and had a look on his face of fear,” Oberholtzer said of Hogue.

Nicholson took the stand several times, portraying the events as an accident in a struggle for the gun. His attorneys also questioned the arresting officers’ assertion that Nicholson had at one point admitted to being the shooter. Neither officer had included the statement in their police reports. Each said that he thought the other one would mention it in his account of the arrest.

The jury could have arrived at one of five conclusions: guilty verdicts for murder, voluntary manslaughter, involuntary manslaughter, or criminal recklessness, or not guilty.  But after six days, two-dozen prosecution witnesses, and more than 10 hours of deliberations, the group was still torn. Nicholson’s defense team interpreted their deliberations as a sign that they were debating his innocence—not which technical charge he was guilty of.

The judge declared a hung jury.

 

“Mark W. Nicholson: killer or bystander?” read a story in the Tribune Star on November 16, 1992, the day Nicholson’s second trial began.

The defense had asked for a change of venue, arguing that local media coverage had prejudiced potential jury pools in the months since the shooting. The judge agreed, moving the case to Vanderburgh Circuit Court in Evansville. Johnston, the prosecutor, liked his odds. “He’s already locked into his story,” he said of Nicholson’s testimony at the first trial. “He can’t deviate from it. He’s stuck.” And unlike the first jury, which contained two African Americans, the second one was all white.

The second trial spanned five days, rehashing much of the same testimony as the first. When it was time to deliberate, the jury disappeared for another 10 hours. Outside the courtroom, reporters bet on the verdict in between interviewing the victim’s family. “We want a murder, but we’ll take something less at this point,” Jean Hogue, Brian Hogue’s mother, told one journalist.

Inside the chambers, jury members were again deadlocked. The majority thought Nicholson was a murderer. At 3 a.m. on November 21, jurors sent a message to Judge Douglas Knight: “We believe we are incapable of coming to a unanimous decision on Count 1 [murder]. What do we do?”

“Try harder,” Knight responded.

The jurors took a vote. Nine believed Nicholson was a murderer, and three were resolute that he was only guilty of manslaughter. In a last-minute compromise, the nine other jurors flipped their positions and settled on a voluntary manslaughter conviction to avoid another hung jury. They added a criminal recklessness guilty verdict for the shooting of Beauregard. Together, the convictions carried a maximum sentence of 58 years.

At sentencing, Jean Hogue reflected on the loss of her and her husband Randy’s son. “Every minute of the day, Brian is on our mind,” she said. “We have lots of things to be joyful about. But the sadness seems to overshadow it all. When we do find ourselves enjoying something, then, all of the sudden, it’s like a dark cloud comes over; and we remember again what’s happened.”

Nicholson made a case for something less than the maximum sentence. “Your honor, what I fear more than being brutally beaten or raped in prison is that upon my release I would be so advanced in age that I can’t actively seek employment,” he said. “I don’t wish to be unemployed and try and live off the government, but I want to be employed, earn my money honestly, and be a respectable citizen, a law-abiding citizen. Your honor, I won’t waste any more of your time by telling you how hard it will be for me and my family and friends while I’m in prison, nor how I plan on getting married. I believe you already received that letter. There still could be time for all this, if my sentence allows me the chance.”

On January 22, 1993, the judge sentenced Nicholson to 34 years in prison, and credited 720 days for time served.  “It’s tragic,” juror Helen Foster told a reporter after the trial. “Some of these kids had such great futures, Mr. Nicholson included. And in a split second, it’s over.”

 

Nicholson served his time all over the state, beginning in Vigo County Jail, where he spent a few months in solitary confinement for unruly behavior. (Other inmates accused him—falsely, he says—of taking their lunch trays and intimidation.) A sheriff’s deputy helped him pass the time by slipping him Western novels by authors such as Louis L’Amour, Elmore Leonard, and Dee Brown. In 1993, he was transferred to the Indiana State Prison in Michigan City. He also did stints at the Wabash Valley Correctional Facility in Carlisle and at Miami Correctional Facility in Bunker Hill.

Over the years, he finished his college degree through Grace College in Winona Lake, and eventually became a lay advocate for other prisoners. They were petty cases, mostly. Prison officials would walk into an inmate’s cell, claim they smelled marijuana, and write up the inmate for possession. Conduct Adjustment Boards, the ruling authority in such matters, didn’t have to follow the rules of evidence other courts did, so Nicholson learned to argue in front of what he describes as “the most corrupt court in the land.” When he secured inmates a favorable ruling, as he often did, they called him “Johnnie Cochran,” after the famous black defense attorney who won O.J. Simpson’s acquittal. When he lost, they called him “Johnnie Cockroach.” He made sure not to lose.

Nicholson also wrote articles from inside prison for several magazines, including U.S. News & World Report, but prison officials denied him access to copies of them through the mail. The prisoner sent a letter to Ken Falk, a civil rights attorney with the Indiana chapter of the American Civil Liberties Union, hoping he would help with a motion to force the prison to hand over the materials. Falk told him he didn’t have a case. Nicholson told Falk that not only would he win without his help, he would come and see him when he was released from prison and work for the ACLU. And that’s exactly what he did.

In 2002, just 10 years into a 34-year sentence, Mark Nicholson was released from prison. Based on the state’s rules at the time, offenders typically served half of their sentences, which cut Nicholson’s hard time to 17 years. He served his four-year sentence for criminal recklessness concurrently, knocking the total down to 13 years. And securing his bachelor’s degree shortened it by another three years.

Two friends drove to Bunker Hill to pick him up. No family came to see him. In prison, he often dreamed of sinking his teeth into a Krispy Kreme doughnut. When they met him in Bunker Hill, his friends had a fresh box of glazed doughnuts for him. He tore into them.

Within a day or two of his release, Nicholson had made his way back to Indianapolis. His first call was to the ACLU’s Falk.

“Hey, you remember me?”

Falk didn’t.

Nicholson refreshed his memory, telling him about the letter and his case. Falk finally recalled him.

“I’m out now,” Nicholson said.

Silence.

“There was a pause, like, Oh, shoot, he’s going to get me,” Nicholson remembers. “He didn’t say that, but there was this pause.”

Instead, Nicholson told Falk he wanted to work for him. He began to volunteer at the ACLU, doing clerical work during the day and sleeping under a bridge in a cardboard box at night. He didn’t want to tell Falk or others in the office that he was homeless. Soon, they found out. The next day, a stack of clothes, toothpaste, a toothbrush, canned food, and little boxes of orange juice awaited Nicholson at his desk. There was a fresh supply there every morning, like manna, for two or three weeks. The Hoosier Veterans Assistance Foundation helped him find shelter at a halfway house. Eventually, he got a job at the Marshalls store in Castleton.

In May of 2003, Nicholson’s calling crystallized: He wanted to be a lawyer. During his two trials, he had received a master’s class in legal procedure. And then there was his work as a lay advocate. “I didn’t hear an audible voice or anything, not like Moses and the Ten Commandments,” Nicholson says. “I just felt in my heart, Where do you see yourself in the next five years? What do you know? Who do you know? And all that kept coming back to me was law.”

He visited the admissions office at the Indiana University School of Law in Indianapolis and met with a dean, explaining his intentions. “Have you taken the LSAT yet?” she asked, referring to the infamously difficult law school admission test.

Nicholson heard the acronym, and remembered the vaccinations required of gradeschoolers—MMR, DTaP.

“I haven’t had that shot yet, but I’ll get one,” he told her.

She explained to him that it wasn’t, in fact, a vaccination.

“Whatever it is, I’ll take it.”

“You haven’t taken the LSAT test. I can’t even talk to you,” she replied. She all but laughed him out of her office.

Later, Nicholson stopped by a Half Price Books near his work to purchase a few test-prep books. He started studying whenever he could. On the bus. In the homeless shelter. He sat for the LSAT twice during 2003 and 2004—he had heard that taking the test twice showed the fortitude admissions officers valued in prospective students.

He was still living in a homeless shelter when he heard that the same dean who had once ridiculed him had phoned his work.

She wanted to know if Nicholson had indeed taken the LSAT twice.

“Yes, I did, ma’am,” he said.

“You wasted your money,” she replied. “Your first score was good enough to get in.”

Nicholson was admitted to law school in July 2004. It was the best news he’d received since being released from prison.

 

For Nicholson, the next big break was the bailiff job with Judge Johnson. After Nicholson left his first interview, one of the judge’s old bailiffs stopped by and advised against hiring the felon. Johnson went home and prayed on it. He says he felt a divine nudging to take a chance on Nicholson. The next day, at a second interview, Johnson offered him the position.

Justice Sullivan, the state Supreme Court official Nicholson met at the Statehouse, tracked Nicholson’s rehabilitation through his friend, Johnson. “My jaw was sort of on the floor in admiration for the way in which he recovered,” Sullivan says of Nicholson’s trajectory after prison. He sent notes three or four times to Johnson during Nicholson’s time working as a bailiff and attending law school, checking in on his progress. “If you can spend an hour with a Supreme Court justice and make an impression like that, you’ve got to be really special,” Johnson says.

But Sullivan was also on “high alert” to keep a professional distance. As part of his duties on the state’s highest bench, Sullivan’s court had the responsibility of being the ultimate arbiter of which attorneys were admitted to the bar. Build too close of a relationship with Nicholson, and Sullivan exposed himself to being accused of bias. Still, he couldn’t let go of his fascination with Nicholson’s apparent turnaround. He had seen a lot during his 14 years on the bench. But redemption stories like this one? They just didn’t happen.

In September 2007, U.S. Supreme Court Justice Samuel Alito visited IUPUI’s campus to deliver a talk on the relationship between Congress and the federal courts. Sullivan and Nicholson both attended. After Alito finished his keynote, he met Sullivan, and the two justices stood near the back of the room, talking. Then Sullivan spotted Nicholson, and motioned for him to join. The scene struck the Indiana judge as one that could only unfold in America. Here was a convicted felon, not more than five years out of prison, conversing with a member of the highest court in the land.

Meanwhile, among his law school peers, Nicholson slowly gained respect. He successfully ran for class president and gave a speech at the class of 2008’s graduation ceremony, detailing his past. Sullivan recalls it as among the best and most emotional speeches he has ever heard.

Diploma in hand, Nicholson had more hurdles ahead. He had to pass the Indiana State Bar Association’s “Committee on Character and Fitness”—more or less an Xray of an attorney’s moral character. Excessive unpaid parking tickets can trip up a would-be member of the bar, let alone a major felony conviction. The attorney who would interview Nicholson was no pushover, either: Ron Elberger.

One of the city’s most powerful lawyers, Elberger represents clients ranging from David Letterman to Jared Fogle. Over the last 33 years, the Bose McKinney & Evans partner has interviewed hundreds of potential bar applicants. According to Rule 12 of the bar’s admission guidelines, “good moral character” includes “the qualities of honesty, fairness, candor, trustworthiness, observance of fiduciary responsibility, and the laws of this State and of the United States.” A convicted felon such as Nicholson usually wouldn’t pass that test. In Nicholson, though, Elberger found a man reformed. He had worked for a judge and displayed many of the talents required to become a member of the bar. Elberger concluded that was enough.

Having passed his character test in the summer of 2008, Nicholson now faced the bar exam. He took the two-day test with high hopes. A few days after receiving notification that he had failed, he delivered a speech at a Coalition for Homelessness Intervention and Prevention event. “My name is Mark Nicholson, and I’m not an attorney yet,” he told the audience. “I have to pass the nasty beast they call the bar exam. I took it in July. I did not pass. I didn’t want to be here tonight. I wanted to give up. I wanted to go into that psychological hiding place. But when I said that I wanted to go home and stay home, I realized there was a time when I had no home. There are people here tonight that talk to me, that send me emails, and they didn’t give up on me, so I’m not giving up.”

In 2009, Nicholson took the exam again. This time, he passed. He is believed to be the only lawyer in modern Indiana history admitted to the bar with a major felony conviction.

 

III. “When do you tell someone you don’t really know that you were convicted of manslaughter and were recently released from prison after serving 12 years? It was always a tough decision. I don’t think I ever timed it right.” —from Nicholson’s manuscript

If gaining admittance to the state bar with a felony conviction was difficult, dating with that kind of record proved almost impossible. At his sentencing hearing in 1992, Nicholson told the judge he hoped to gain employment and get married upon his release. He had already accomplished his first goal—he landed a job working for the Indiana state public defender office shortly after being admitted to the bar. But a string of women he met through acquaintances and eHarmony balked at his background when he reached the point in the relationship when he felt a duty to disclose it.

In December 2005, Nicholson had a date with a woman named Gina, whom he had met through a mutual friend. They arranged to have dinner at Olive Garden. Nicholson, who had been studying files, showed up looking disheveled. Gina was dressed to the nines. He apologized for his appearance, but it didn’t seem to bother her.

After a few dates, though, Gina suspected that something was amiss. She looked around Nicholson’s apartment, with its Batman memorabilia (Nicholson has loved the character since childhood) and its sparse furnishings. “You’re 36, you’ve never been married, and you don’t have any kids,” she said. “You’re either gay or you were in prison.”

“You got it,” he said. “I was in prison.”

Although she was alarmed,  Gina appreciated his candor and felt she could trust him. The two were married three years later, and had two kids in as many years.

But outside of Nicholson’s immediate family and circle of friends, discussing his past is always a delicate proposition. He doesn’t feel it’s necessary to disclose his record to clients. When The Indiana Lawyer profiled him for a slice-of-life piece in 2011, the topic didn’t even come up. But he doesn’t hide his past, either.

“It’s pretty much known by everyone around here,” says Jeremy Johnson, a Marion County deputy prosecutor and friend of Nicholson’s. (Hal Johnston, the prosecutor who put Nicholson behind bars decades ago, is now the administrator of Court 12 and passes him in the City-County Building on a regular basis.)

Jeremy Johnson spends his days making certain the city’s most violent criminals are punished to the full extent of the law. The sad reality of working in his line of business, though, is that rarely are the criminals he encounters interested in the rehabilitation that correctional facilities are supposed to provide. Can people really change? Sure. Do they? That’s a different question. Many are sociopaths incapable of empathy, as he sees it. The only way to tell is by watching their lives unfold, decision by decision. Nicholson’s story strikes him as fundamentally different.

“I vouch for him on a personal basis,” Johnson says, shrugging off whatever happened with Nicholson that night decades ago. Did Nicholson, standing alone, fire at Hogue while he was in the doorway, as some witnesses testified in court? Did Hogue try to take the gun away, and in the hand-to-hand battle for possession of the gun, get shot? Or did Boswell fight Nicholson for the firearm, as Nicholson testified?

For Johnson and many others in the City-County Building, it doesn’t matter. “I don’t want to know more than I know,” he says.

 

Brian Hogue Memorial

The Ballyhoo Tavern is a blue and white two-story brick building in downtown Terre Haute, situated on a quiet side street. The only remnant of Nicholson’s crime hangs on the right side of the bar, a small, framed memorial placed there by a Ballyhoo employee in the weeks after the shooting. “In Memory of Brian Hogue 1966–1991. Love and miss you, Hogie.” Hogue mugs for the camera, wearing a blue and white ISU sweatshirt.

That’s the way his father, Lewis “Randy” Hogue, who lives in Mooresville, likes to remember him. In 1992, Randy’s testimony on the stand at the second trial was particularly dramatic: “I hope that some day Nicholson gets out of jail, he marries, he has a family, and he holds his son or daughter in his arms. Then, I want him to realize what it would be like for somebody to take them away from him. That’s all I have to say.”

But upon learning this fall that Nicholson had a family and was, in fact, a lawyer, Randy was disgusted. “I wish he was dead,” the father says. “I can’t believe he’s a lawyer. Holier than thou. I only wish Brian was still here. I don’t have much more to say about that. He’s gone, and I can’t do anything about it.”

Nicholson still has a hard time talking about the evening, too. If only he had never gone out that night. If only he and Boswell and Holdcraft had stayed at the Fourth Quarter. Boswell isn’t around to give his account. He died in 2014. Holdcraft didn’t respond to requests for an interview. And attempts to track down Beauregard, who was shot that night, were unsuccessful.

Nicholson maintains there was a battle for the gun, but he takes responsibility for his actions. He has considered sending the Hogues a letter, but doesn’t think it would be appropriate now. He tried that once when he was prison in 1991, and the family turned it over to police. Believing that racial prejudice played a role in his conviction, and that Boswell also should have been charged, Nicholson was bitter about his case for a long time, carrying around 2,200 pages of court documents while homeless. Then, one day, he just stopped.

He’s not incapable of seeing the irony of his courtroom phrase, “travesty of justice.” He realizes there are some who believe the term could apply to his situation. “The people who think that probably have a hard time believing that people grow,” Nicholson says. “For someone to think that a person cannot change is a sorry life for them, because that may mean they can’t change.”

When his own kids reach the age of 10 or so, he plans on telling them about his past. Perhaps he’ll have finished his book by then, and give it to them. He’s still torn about the title. One option is Death in 90 Seconds, a nod to the amount of time that passed between Brian Hogue’s call to the police and his shooting—and a reference to how Nicholson’s own life crumbled at the same time. Or maybe he’ll call it Living Proof, an homage to one of his favorite blues songs:

Life ain’t easy, it’s a long, hard test.
You’re gonna make mistakes,
just do your best.
With the Lord’s mercy,
you’ll make it through.
Hell, I’m living proof.

In the late hours of the evening, in the rare gaps of time when he is not prepping for a case or doting on his young family, Nicholson has managed to compile more than 40,000 words of the manuscript. He writes about growing up, about making love for the first time, about the deputy who lent him Westerns to pass the time in prison, about law school and meeting his wife.

There are two sections missing, though, which he says he’ll eventually finish. One is the chapter about his time in Panama. The other is about what happened that night at the Ballyhoo.

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