High Court Halts Execution in Va.

Granting a reprieve to a Virginia man the day before he was scheduled tobe executed, the U.S. Supreme Court agreed yesterday to review the murderconviction and death sentence of Walter Mickens Jr., whose trial lawyer hadpreviously represented the man he was accused of killing. Mickens had beenscheduled to die by injection tonight for the 1992 stabbing death of17-year-old Timothy J. Hall in Newport News. The high court's actionillustrates how judicial scrutiny has slowed Virginia's once-speedyexecution process to a crawl. After executing 14 people in 1999, the statehas put to death one person this year, and the Mickens execution was theonly other one scheduled. When Mickens was charged with Hall's murder, ajudge assigned his case to a local lawyer carrying a busy load ofcourt-appointed cases. What Mickens didn't know -- and wouldn't discover forfive more years -- was that the lawyer had been representing Hall on anunrelated charge until the moment of his killing. The basic issue for the justices is whether that alleged conflict ofinterest violated Mickens's right to effective counsel under the SixthAmendment. Mickens's new attorneys argued that the lawyer, Bryan L.Saunders, was ethically bound not to disclose information about Hall even ifit could help Mickens's case, posing a clear conflict of interest. But theVirginia attorney general's office said Saunders's brief work for thevictim, whom he met just once for less than a half-hour, did not denyMickens a fair trial. Although the legal issues surrounding the case couldarise in any criminal matter, the fact that it is a capital case heightensthe stakes and provides the latest indication that public concern over thefairness of the death penalty may be permeating the high court. In anunusually blunt public statement last week, Justice Ruth Bader Ginsburg saidin a speech that she was troubled by the poor quality of legal counselavailable to capital defendants. "I have yet to see a death case, among the dozens coming to the Supreme Court on the eve of execution petitions, in which the defendant was well represented at trial," Ginsburg said. She made no specific reference to theMickens case. And in March, the court agreed to reconsider theconstitutionality of executing mentally retarded criminals, which it hadupheld just 12 years ago. Reaction to the court's action yesterday showedthe degree to which the Mickens case had become a focal point in the capitalpunishment debate. "The fact someone could be sent to his death on thisbasis shocked those of us who are concerned about professional ethics," saidLawrence J. Fox, a former chairman of the American Bar Association's ethicscommittee who had joined 15 other legal scholars in asking Gov. James S.Gilmore III (R) to grant Mickens clemency. "The Commonwealth has argued andthe lower courts have agreed there is no conflict in this case," said DavidBotkins, spokesman for Virginia Attorney General Mark L. Earley. "Mickens committed a brutal, heinous murder, and our thoughts and prayers at this time are with the victim's family." The case began March 30, 1992, when a passerby foundHall's body at an abandoned Newport News construction site. Mickens, 46, wascharged with killing Hall and attempting to sodomize him. DNA evidencelinked Mickens to the crime. Unable to afford a lawyer, Mickens had his caseassigned to Saunders, who did not inform his new client that he had beendefending Hall in an unrelated criminal case. Although the same judge,Audria Foster, handled both cases within three days, she did not askSaunders about potential conflicts and never gave Mickens the option ofasking for another lawyer. The issue came to light only by chance in 1998,when a court clerk mistakenly gave Mickens's appeals attorney, Robert J.Wagner, access to Hall's sealed juvenile court file. Had the issue beendiscovered earlier, Wagner said, Mickens would have been entitled automatically to a new trial under Virginia law. But because Mickens's state court appeals had run out, his only legal option was to argue in federal court that his constitutional right to counsel was violated. A district court denied him a new trial, but that ruling wasreversed by a three-judge panel of the 4th U.S. Circuit Court of Appeals,based in Richmond. A majority of the court's mostly conservative judges thenvoted to have the full court review the case, and the court voted 7 to 3 tolet Mickens's execution proceed. The full court, which has not granted aVirginia death row inmate a new trial since 1986, ruled that Mickens hadfailed to prove that Saunders's alleged conflict of interest had hurt hiscase at trial. However, the court acknowledged that its view clashed withthat of another federal appeals court, which said a defendant shouldautomatically receive a new trial when a judge failed to ask about anundisclosed attorney conflict. Wagner said that when he called his client at the death house in Jarratt, Va., Mickens was "very excited and overjoyed." "The first thing hesaid was, 'I love you, man. God is good,' " Wagner said. A ruling in thecase, Mickens v. Taylor, No. 00-9285, is not expected until thecourt's next term.