ESECUZIONE DETENUTO DIFESO DA AVVOCATO DELLA VITTIMA GOVERNATORE VIRGINIA RESPINGE CLEMENZA, PROTESTE INTERNAZIONALI

WASHINGTON, 13 GIU - In Virginia e' stato messo a morte mercoledi' sera con una iniezione il detenuto Walter Mickens, che aveva chiesto una revisione del processo perche' il suo avvocato aveva difeso in passato anche la sua vittima.

   Mickens era stato condannato a morte per aver assassinato con 143 coltellate nel 1992 un ragazzo di 17 anni, dopo aver tentato di violentarlo.

      Il governatore della Virginia Mark Warner aveva respinto poche ore prima dell'esecuzione una petizione di clemenza da parte del condannato.

   Mickens e' stato dichiarato morto alle 21.06 da un medico legale, nella camera della morte del carcere di Jarratt.

   Poco prima di morire il condannato aveva detto di ''perdonare il governatore Warner per la sua decisione''. Mickens aveva aggiunto di ''aver pregato per ottenere il perdono di tutte le persone alle quali posso aver fatto del male. Sono veramente dispiaciuto per le sofferenze che ho causato''.

   Nell'aprile 2001 la Corte Suprema Usa aveva sospeso la sua esecuzione. Un mese dopo i giudici avevano deciso col margine minimo, 5 voti a 4, contro un annullamento del processo

sostenendo che non esisteva un conflitto di interesse per l'avvocato di Mikens.

   Il legale, designato dalla corte, era stato incaricato di difendere Mickens dall'accusa di omicidio anche se in passato aveva difeso la vittima dall'accusa di aver picchiato la madre.

   A favore della revisione del processo si erano espresse numerose organizzazioni internazionali, inclusa Amnesty

JUNE 12, 2002:

VIRGINIA - execution - Mickens executed for slaying teenager in 1993

A man who had been on death row longer than any current Virginia inmate was executed Wednesday for the killing a teenager in 1993.

Walter R. Mickens, 47, died by injection at the Greensville Correctional Center at 9:06 p.m. after saying he forgave Gov. Mark R. Warner for not granting him clemency 3 hours before his scheduled execution.

 The U.S. Supreme Court stopped Mickens' last scheduled execution in April 2001 and agreed to consider whether Mickens received a fair trial while being represented by a lawyer who had previous ties to his victim. The court ruled 5-4 in March that there was no provable conflict of interest in Mickens' representation.

 Mickens had been on death row for 9 years.

 In a statement he read moments before the lethal injection was administered, Mickens said "I forgive Governor Warner for his decision and whoever I may have hurt or caused harm to.:

 Mickens, who has spent most of his adult life in prison for various crimes, was convicted in 1993 of stabbing Timothy Jason Hall 143 times and attempting to sodomize him in a seedy Newport News warehouse district. The victim was 17.

 DNA tests on semen found at the scene were consistent with Mickens', and he allegedly confessed the crime to an investigator and fellow inmate. Last week, Mickens filed a request for clemency, which picked up support among human rights groups and legal ethics watchers.

 The American Civil Liberties Union, Amnesty International, the former head of the American Bar Association's ethics committee and a Virginia congressman have written the governor on Mickens' behalf. They contend Mickens deserves clemency -- or even a new trial -- because his attorney had been previously appointed to represent Hall and never told Mickens.

 The Inter-American Commission on Human Rights, a branch of the Organization of American States, also sent a letter to Warner via the U.S. State Department asking for a stay until it could review the facts in the case.

 Warner said he declined the clemency request after a thorough review of the judicial opinions regarding Mickens.

 On Monday the inmate who initially testified against Mickens said he was told by a policeman to elicit a confession from Mickens while the 2 shared a cell together.

 The inmate, Tyrone Brister, said in affidavits taken over the weekend that Mickens appeared to be repeating a confession he previously had been told to say.

 Howard Gwynn, the Newport News prosecutor who tried Mickens in 1993, said Tuesday night that Brister never told prosecutors anything about this before and there was "no reason to doubt any of the sworn testimony he gave in the case."

 "Mickens got a fair trial when he was convicted in 1993," Gwynn said. "12 citizens decided unanimously that he was guilty, and based on his crime and prior record, which I think is very telling, the death penalty is appropriate punishment."

 Hall's sister, Laura Hare, wrote Warner asking that Mickens' clemency request be denied.

 "Please tap a pen 143 times and imagine what must have been involved with stabbing someone 143 times," she wrote. "What kind of evil could have done such a deed, what rage must have consumed Walter Mickens?"

 Mickens becomes the 3rd condemned inmate to be put to death this year in Virginia, and the 86th overall since the state resumed capital punishment in 1982.

 Mickens becomes the 32nd condemned inmate to be put to death this year in the USA and the 781st overall since America resumed executions on January 17, 1977. 

Execution Culminates Va. Legal Odyssey 

By Maria Glod

June 13, 2002; 

 JARRATT, Va.,-  Walter Mickens Jr. was executed tonight by injection, a punishment that came a decade after he sexually assaulted a Newport News teenager, stabbed him 143 times and left him to die on a dirty mattress.His death marked the end of one of Virginia's most divisive capital cases and one that split the U.S. Supreme Court 5 to 4. 

The execution also brought Gov. Mark R. Warner (D) his first clemency request -- one that he struggled with for days before rejecting.Mickens, 47, who had been on Virginia's death row longer than any other inmate, entered the death house at Greensville Correctional Center at 8:52 p.m. as family members of Timothy Jason Hall watched tearfully from behind a window. He died 14 minutes later."To whoever I may have hurt or caused harm, I pray that you can forgive me," Mickens said just before his execution. He also invoked God's name and said he forgave "Governor Warner for his decision."Mickens's mother, father, sister and brother visited him on his final day.Over the past decade, the case slowly worked its way through the judicial system, coming before five courts and two juries.

The U.S. Supreme Court in March denied Mickens's final bid for a new trial by one vote, rejecting his claim that his conviction was tainted because his court-appointed lawyer represented Hall at the time of the murder."If your life was on the line, would you want the attorney representing you to have represented the victim?" Mickens's appellate attorney, Robert Wagner, said after the execution. "Is that fairness? The system failed Walter Mickens in this case."The high court's ruling left Mickens's fate in Warner's hands. The governor's aides said Warner struggled with the decision throughout the day and was still seeking information this afternoon. Ultimately, Warner noted the courts' agreement on the punishment and declined to intervene.A man walking along the James River in Newport News on March 30, 1992, found Hall's body by an abandoned building. 

The 17-year-old was unclothed from the waist down except for athletic socks with orange stripes. A medical examiner found that 25 of his wounds would have been fatal but that Hall probably lived for more than a half-hour after the attack. Mickens's DNA matched that in semen found at the scene, and he allegedly confessed to the crime to an investigator and fellow inmate."I lose my ability to rationalize when I think about the first wound, the screaming, the pain, the fear, the hurt and unknowing that my brother went through," Hall's sister, Laura Hare, wrote in a letter she sent to Warner along with a photo of her brother. "Please tap a pen 143 times and imagine what must have been involved with stabbing someone 143 times."Mickens, who had two sodomy convictions in the 1970s, was convicted of capital murder and attempted forcible sodomy in 1993. Two juries considered his punishment, and both recommended the death penalty.But in recent days, Mickens's attorneys renewed arguments that their client's defense was flawed from the moment it began because trial lawyer Bryan Saunders was representing Hall on an assault charge."The execution of Mr. Mickens under these circumstances would be a travesty of justice," Wagner and attorney Robert E. 

Lee, wrote in a 13-page petition for clemency. Mickens's case, they said, is "exactly the situation for which the 'safety valve' of clemency was intended."Warner regarded the clemency decision as an "ominous power," his spokeswoman Ellen Qualls said. The governor continues to have "a real concern" about whether Mickens received fair representation but also considered the horror of the crime, she said.In her letter to Warner, Hare said her brother had survived a troubled childhood and was struggling to make it on his own.

 The morning of his death, she recalled, he stopped at her home."I managed to tell him that he needed to get his life together, and he told me that I was right, and that one day I would be proud of him," Hare wrote. "He left trying to prepare himself to live in this world, he left not knowing that he was about to meet the most cruel person."Staff writer Michael D. Shear contributed to this report from Richmond. � 2002 The Washington Post

Death Penalty Taking Its Toll

For Years, They Lived With a Horrific Murder and Legal Battle; Today, the Killer Is to Die

 Milestones in the Case(

 Jun 12, 200

By Patricia Davis, Maria Glod, Tom Jackman, Brooke A. Masters and Josh White

Wednesday, June 12, 2002; Page B01

Walter Mickens Jr. sexually assaulted 17-year-old Timothy Hall, stabbed him 143 times and left him on a dirty mattress in an abandoned building along the James River in Newport News in 1992. Tonight, Mickens is scheduled to die for it.

 His execution would end one of the nation's most divisive capital cases � a case that stirred so much passion that five of the nine U.S. Supreme Court justices felt compelled to write their own opinions. As the nation's debate about the death penalty intensifies with Maryland's recent moratorium on executions, advocates on both sides of the issue are using Mickens to make their point.

 But for 10 people who have lived with the case for all or most of the past decade, their involvement is something that will stay with them forever � relationships lost, faces in nightmares and, in almost every case, a reexamination of their thoughts on capital punishment.

 Just as important, their stories personify the arguments made for and against the death penalty in legal briefs and university corridors.

 There's Laura Hare, Timmy Hall's big sister, who feels that Hall can't rest until the case is closed one way or the other.

 There's Robert Wagner, the former prosecutor, now a public defender, whose faith in the criminal justice system is shattered because he thinks Mickens never got a fair trial.

 There's Ruby Bunn, a 76-year-old retired teacher who was called to testify against Mickens during the penalty phase because in the 1970s, Mickens walked into her classroom and held a knife to a second-grade boy while she dug $11 from her purse. Nearly three decades later, she can't get the faces of Mickens and the boy out of her head.

 Jurors, detectives, lawyers and Mickens himself all say they have been waiting for today so they can put the case behind them.

 To death penalty supporters, Mickens, 47, is a classic example of why this country needs capital punishment and why there should be only limited appeals to ease the suffering of people such as Hare.

 To death penalty opponents, the case demonstrates why the criminal justice system is flawed and cannot be trusted to take a human life. When Mickens was arrested, the court assigned him a lawyer who had been representing Timothy Hall on an unrelated charge at the time of the killing. Although the same judge handled both cases, Mickens would not learn of the conflict for five years � long after he had been convicted and sentenced to death and too late for him to seek a new trial under Virginia law.

 "Nobody protected my rights or looked out for my interests," Mickens said from death row. "I thought that is what lawyers and courts are supposed to do."

 Mickens has been on death row nearly 10 years, longer than any other inmate in Virginia. Five courts and two juries have passed judgment on the crime, the trial and the punishment. The case has featured repeated reversals, emotional lobbying and high-flown rhetoric. The U.S. Supreme Court got involved twice, and the last time bitterly split the justices, 5 to 4.

 Their decision hinged on whether the attorney, Bryan Saunders, had a conflict because he had been defending Hall on charges of assaulting his mother. That made Saunders incapable of providing Mickens with an independent, thorough defense, his attorneys said.

 The Virginia attorney general's office countered that Saunders's potential conflict had no impact on his performance.

 In March, Justice Antonin Scalia wrote for the majority that the conflict was a "mere theoretical division of loyalties."

 "The trial court's awareness of a potential conflict neither renders it more likely that counsel's performance was significantly affected nor in any other way renders the verdict unreliable."

 The four dissenting justices were appalled, arguing that allowing this kind of conflict undermines the appearance of fairness and the public's respect for criminal trials.

 "A rule that allows the State to foist a murder victim's lawyer onto his accused [killer] is not only capricious; it poisons the integrity of our adversary system of justice," Justice John Paul Stevens wrote.

 Mickens's fate is now in the hands of Gov. Mark R. Warner (D), who today is considering his first clemency request from death row.

Virginia Capital Representation Resource Center

May 24, 2002

 Injecting a Lethal Dose of Poison to the Integrity of Our Adversary System of Justice

PREFACE

 The foundation of the adversarial system of justice is the faith that one is represented by a zealous advocate whose loyalty lay with his or her client alone.  What happened in this case is an intolerable corruption of that promise of loyalty.  It is intolerable not only in the visceral sense that no one would want to be made to rely on a compromised advocate.  It also is simply not tolerated as an actual matter.  Every state bar in the country has an ethical rule prohibiting a lawyer from undertaking a representation that involves a conflict of interest unless the client has waived the conflict.

 Imagine that your son or daughter has just been seriously injured in a car crash with a drunk driver.  Faced with the immediate cost of addressing the injuries and the fear of the unknown complications in your child's future, you decide to pursue a legal remedy to ensure full recovery.  But you are unfamiliar with the particulars of the legal system so you seek the advice of a judge who recommends to you a lawyer.  The lawyer takes your case to court but loses badly, and your child receives little or no compensation from the other driver.

 Years later - by pure fortuity - your stumble across the remarkable fact that the lawyer the judge sent you to was actually a lawyer who was representing the drunk driver on criminal charges at the time of the accident.  You also learn that the judge knew that before she recommended that lawyer to you.  The lawyer who defended the drunk driver against your suit in court also knew about your attorney's representation.  But they all stayed quiet.

 How confident would you feel that your case was fairly developed, presented, and heard?  If your son or daughter developed fatal complications from the injuries in the car accident, would you feel content at their passing because you had your "day in court" with a fair chance to obtain the resources to seek quality medical?

 The mother and father of Walter Mickens are facing circumstances such as these.  Only their son has been convicted of murder and will be put to death on June 12, 2002, at 9:00 p.m. despite the fact that the attorney provided to him by the judge in his death penalty trial was also representing the victim on criminal charges at the time of the crime.

INTRODUCTION

 Executing Walter Mickens' based on a trial at which the Commonwealth arranged for Mickens to be represented by the victim's lawyer -- without ever alerting Mickens to this fact -- does not meet the standards expected for representation in a death penalty case in the Commonwealth.

 Although researchers have discovered that Virginia attorneys appointed in capital cases in the past are more likely to be disciplined and even disbarred for ethical breaches than their peers, never before has the ethical violations of the appointed actually occurred in the death penalty case itself.   If Virginia is to aspire to set an example for quality capital representation, it cannot tolerate the execution of a person after requiring that person to rely on the victim's own lawyer.  More intolerable in this case, however, is the fact that, every person entrusted by the Commonwealth with the duty to ensure that Walter Mickens received fair consideration of the charges against him - the defense lawyer, the appointing judge, and the prosecutor -  violated their ethical and moral obligations in this case.

 Virginia justice demands that a person whose life may be taken in the name of the Commonwealth be provided a loyal and zealous advocate to put the matter to the crucible of adversarial testing.  Virginia justice recoils when, such as occurred in this case, powerful and troubling evidence which could have been presented at trial but was not, leaves considerable doubt whether Walter Mickens is guilty of capital murder.  And, although the circumstances presented in this case are so extraordinary that they are likely never again to come before a Governor of the Commonwealth, Virginia justice can not be passive, especially before determining whether to take a life.

 Especially unique about this case is the fact that knowledge of the radical legal and ethical failings of those who assumed responsibility on behalf of the Commonwealth  emerged too late for Virginia justice to correct them, despite precedents calling for their correction on the merits.  The unusual manner in which the failures in this case came to light means that the only vehicle through which Virginia can act to address the defects is through the Governor's extraordinary intervention. Bryan Saunders, the lawyer appointed to defend Walter Mickens on a capital murder charge had been representing the murder victim, Timothy Hall, on criminal charges at the time of his death.  Despite an ethical duty to inform his client of anything that might cause a client to question his undivided loyalty, the lawyer never told Mickens of his representation of Hall.  The lawyer's understanding of legal ethics was remarkably wrong.

 The state judge who made the appointment was involved in both cases and knew or should have known of the apparent conflict.  This knowledge triggered an unequivocal duty to inquire about the potential conflict and to make sure that Mickens knew of the circumstance presenting the  potential conflict.  But the judge failed to fulfill her judicial responsibility.

 The same Commonwealth's Attorney's office handled the case against Hall and the case against Mickens, so the prosecutor also knew or should have known of the potential conflict.  Despite this knowledge the Commonwealth's Attorney said nothing.

 No one  -- not the attorney, the judge, or the prosecutor -- told Mickens that there might be a conflict problem, so he was never given a chance to object.

 A trial carried out in the face of such widespread ethical neglect cannot supply an accurate account or verdict, and did not do so in this case.

 INDEFENSIBLE AND SEVERE VIOLATIONS OF FUNDAMENTAL PROFESSIONAL DUTIES

 A recent study of the death penalty in Virginia revealed that lawyer's appointed to represent people facing the death penalty are 6 more times likely to be publicly disciplined and 25 times more likely to have their licenses revoked, suspended, or accepted in surrender with charges pending. Never before, however, have the ethical breaches actually occurred at the trial which determined whether the client would live or die.

 This case is awash in ethical and legal dereliction, staining each of the persons upon whom responsibility rests for a fair and reputable administration of justice.

 The Judge

 On April 3, 1992,  Judge Aundria Foster dismissed the charges against Timothy Hall because he was deceased due to his death by making a handwritten order on the docket sheet.   That single-paged docket sheet identified Bryan Saunders as Hall's lawyer.  The very next business day, Judge Foster telephone Saunders asked him if he would agree to represent Mickens in the capital murder of Hall.  Though legally obligated to inquire into potential conflicts, the judge never told Mickens of the representation and made no inquiry into the matter.

 The Lawyer

 Saunders failure to act ethically has not been the subject of dispute.  Because Saunders' loyalty was subject to question at the time he was appointed to represent Mickens, he had the duty to inform Mickens and the court of his prior representation of Hall and to give Mickens the opportunity to decline his services.  See Va.Code Prof'l Responsibility DR 5-105(A) (Michie 1992).  Saunders could not continue to represent Mickens unless he obtained a waiver from Mickens.  Saunders, however, said nothing to Mickens.  Saunders went on to represent Mickens at the guilt phase of his murder trial and at sentencing.  He represented Mickens on appeal and, after other lawyers obtained a remand from the United States Supreme Court, Saunders continued to represent Mickens at a second sentencing trial.  According to Saunders and his co-counsel, he was responsible for about ninety percent of the workload on the case.  Saunders never  disclosed to co-counsel that he had represented Hall.

 The Virginia Code of Professional Responsibility (as it was called at the time of Mickens' trial) provided that a lawyer had the duty to "explain any circumstances that might cause a client to question his undivided loyalty."  Va.Code Prof'l Responsibility EC 5-19 (Michie 1992).  Saunders' representation of the murder victim at the time of the murder is undoubtedly a circumstance "that might cause a client to question his undivided loyalty."  Regardless of whether Saunders believed he could represent Mickens, he was ethically required to "defer to a client who [held] the contrary belief [by] withdraw [ing] from representation of that client."   Va.Code Prof'l Responsibility EC 5-19 (Michie 1992).

 Indeed, Saunders acknowledged under oath that if he was on trial for capital murder, he would want to know whether or not his lawyer represented the person he was alleged to have killed..

 Once Saunders proceeded with the representation of Mickens in these circumstances, he was potentially subject to disciplinary proceedings, which gave rise to an interest in protecting his professional reputation by preventing his representation of Hall from coming to light.   This interest diverged from Mickens' interest in learning about the earlier representation and in making sure he (Mickens) received conflict-free representation.  Saunders was thus caught in an actual conflict.

 Saunders faced another ethical dilemma which prohibited him from investigating his former client Hall, and using the confidential information he learned from the young man, without violating the ethical duties that he (Saunders) owed to Hall, his former client.1    Saunders had a duty to preserve Hall's secrets and confidences even though his employment as Hall's lawyer had ended.   See Va.Code Prof'l Responsibility DR 4-101, EC 4-6 (Michie 1992); see Swidler & Berlin v. United States, 524 U.S. 399, 410-11 (1998).   Saunders also had a duty to zealously represent Mickens.   See Va.Code Prof'l Responsibility DR 7-101 (Michie 1992).   In representing Mickens, Saunders could not pull his punches in order to protect what he knew about Hall.  Saunders' interest (or duty) in maintaining Hall's secrets and confidences diverged from Mickens' interest in pursuing a course of action, specifically, a reasonable investigation of his case,2  creating a second clear conflict.

 Saunders did not investigate (or even attempt to develop) any negative information about Hall, even though circumstances of this crime (murder and sodomy) suggested that some consideration had to be given to investigating the character and background of the victim.   There were no witnesses to Hall's murder, which occurred in a secluded area that was a "known gathering place for homosexuals."  Saunders knew from his representation of Hall that Hall had some tendency to violence or aggressiveness, that he had previously carried a weapon with him when in questionable areas of the city, and that for some reason he was no longer living at home, despite his young age.   This information, together with the notable location of Hall's murder, at least suggested an investigation into whether consent to the sodomy and self-defense to the murder might be defenses or statutory mitigators.   In other words, the negative information Saunders had about Hall had the potential to lead to information about the circumstances of the crime.

 A lawyer has an initial duty to investigate and to make his own independent appraisal of the case.   See ABA Standards for Criminal Justice Standard 4-4.1(a).   Of course, obvious avenues of investigation do not always lead to relevant evidence or viable defenses.   The point is that reasonable areas of investigation must be considered and pursued.   Because of Saunders' duty to protect Hall's secrets and confidences, he could not ethically even consider an investigation that was suggested by the circumstances.

 Saunders' duty to conduct a reasonable investigation created still another conflicting interest because there was a good chance that someone from the victim's family (perhaps Hall's mother) would testify during the penalty phase.   Again, there is a duty to "explore all avenues leading to facts relevant to ... the penalty."  ABA Standards for Criminal Justice Standard 4-4.1(a).   Surely this would require defense counsel to consider investigating the victim's relationship with key family members, especially (in this case) the victim's mother since the victim was a juvenile.   Here, Saunders, while he represented Hall, learned something about his relationship with his mother and about the fact that he no longer lived at home.   In particular, Saunders learned about the circumstances leading to the charge that Hall had "grabbed [his mother] by the arms and shoved her to the ground" shortly before his death.   This confidential or secret information that Saunders had about some aspects of Hall's relationship with his mother also created a conflict: Saunders' interest in preserving Hall's confidences diverged from Mickens' interest in having Saunders consider an investigation into Hall's relationship with his mother.

 Thus, Saunders' ethical duties prohibited him from being a zealous advocate for Mickens.

 The Prosecutor

 The same office that prosecuted charges against Hall prosecuted charges against Mickens.  The same police department investigated and offered evidence in both cases.  Hence, the prosecutor, like the state judge, had actual knowledge of the potential conflict.  He also knew that the matter had not been inquired into by the court as was required, that Mickens was never informed, and that no waiver had been sought from Mickens.  As the Governor is aware, previously having served as Commonwealth's Attorney, a prosecutor is a "minister of justice" and cannot merely stand by as an advocate for one side.  Comment, Rules of Virginia Supreme Court, Part 6, � II, Rule 3.8.  In this case, however, the Commonwealth's Attorney, violated his "specific obligations to see that the defendant is accorded procedural justice[,]" and said nothing.

 BRYAN SAUNDERS' BEHAVIOR AFTER HIS UNETHICAL CONDUCT WAS QUESTIONED

 When Saunders was first confronted with the fact that others now knew he was representing Hall when he was killed, Sanders claimed that he had discussed the prior representation of Hall with Judge Aundria Foster when she proposed that he be appointed to represent Mickens.  Saunders told Mickens present attorney that he and the judge both stated that they each saw nothing wrong with the appointment and did not consider there to be any conflict.

 Several months later when Saunders was informed that the federal judge had ordered a hearing on the matter and that the judge wanted Saunders questioned under oath., Saunders then said that he did not tell the judge.  He said he remembered telling someone about it - as a joke -  but could not remember what he said, when he said it, or to whom it was said.

 When the Virginia Attorney General filed a sworn affidavit obtained from Saunders flatly stating, "I received no confidential information from Tim Hall that would have had any relevance to the issues in Walter Mickens' case."  Based on this affidavit, the Attorney General tried to get the federal judge to deny Mickens' claim without any inquiry into the matter.  Fortunately, the efforts failed.  Under oath again in the federal court, Saunders again denied receiving information from Timothy Hall that would have benefited Walter Mickens.  But, under pressing questioning from the federal judge, Saunders finally admitted for the first time ever, "To be honest with you, I don't remember the interview."   Thus, Saunders twice offered sworn statements expressly denying that he had received information helpful to Mickens only to find out in the end that he actually had no recollection of his meeting with Timothy Hall.

 Despite this track record, the federal judge wrote that he believed he was obligated by law to give "great weight" to Saunders' assertion that his representation of Mickens was not influenced by his representation of Hall.  Unless Mickens could come up with evidence - almost ten years after the crime - which could overcome this "great weight," Mickens must lose.

 IF MICKENS HAD BEEN ABLE TO BRING THIS MATTER TO VIRGINIA COURT HE WOULD HAVE BEEN GRANTED A NEW TRIAL

 The need for the Governor to intervene is made even greater because, had Walter Mickens discovered the information about Saunders' representation of Hall at a time when he clearly could have presented his claim to a Virginia court, he would be entitled to a new trial.  Unfortunately, the special death penalty equivalent of "the 21-day rule" - which restricts the ability of Virginia courts to correct injustice if evidence of the injustice is presented to them more than 60 days after denial of certiorari review -  disables the Virginia courts from granting Mickens the relief to which he is entitled under Virginia law because procedural technicalities prevent the Virginia courts from correcting the injustice.

 The Governor, of course, has no restrictions, and can ensure that the substance of Virginia law is met in this case.

 Under Virginia law, "where a trial court fails to initiate an inquiry when it knows or reasonably should know that a particular conflict may exist it is presumed that the conflict resulted in ineffective assistance of counsel."  Dowell v. Commonwealth, 3 Va. App. 555, 561-562, 351 S.E.2d 915, 918 (1987); see also Carter v. Commonwealth, 11 Va. App. 569, 574, 400 S.E.2d 540, ___ (1991) ("where a trial court fails to initiate an inquiry when it knows or reasonably should know that a particular conflict may exist it is presumed that the conflict resulted in ineffective assistance of counsel.")  In Dowell, as in Mickens' case, the Commonwealth contended that no relief was required because  the record was "insufficient to show that an actual conflict of interest adversely affected the trial counsel's performance."  Id.   The Virginia courts rejected this argument.3   Because there is no doubt that the trial court failed to inquire into circumstances where a particular conflict "may exist," there can be no doubt that, if Mickens were allowed to bring his claim into the Virginia court, he would be ordered a new trial.

 THE COMMONWEALTH'S EVIDENCE OF TIMOTHY HALL'S MURDERER 

The Commonwealth's evidence that Mickens murdered Hall was entirely circumstantial.  Evidence that Hall was murdered in the course of attempted forcible sodomy was entirely inferential.  Moreover, the evidence presented at trial was never subjected to appropriate scrutiny.

The evidence the Commonwealth claimed proved Mickens' guilt beyond a reasonable doubt is as follows:

 1. Shoes - When Michael Jacobs was arrested for charges not related to Hall's death, he was wearing shoes identified as those worn by Timothy Hall near the time of his death.  Jacobs testified at trial that he bought the shoes from Mickens for $5.00 the same week Hall's body was found.  What jurors never knew was the fact that Jacobs first testified under oath at the preliminary hearing that he had bought the shoes from Mickens on a date prior to Hall's death!  He simply changed his "sworn" testimony by the time the trial came around to fit the prosecutor's dates.  Saunders never questioned Jacobs about this sudden change in his testimony.  There was no other evidence linking Mickens and the shoes.

 2.  Hair - One of the Commonwealth's expert witnesses testified that pubic hair removed from Hall's buttocks were from an African-American and were alike in "all identifiable microscopic characteristics" to the pubic hair sample taken from Mickens.  But hair evidence, of course, produces extremely imprecise results and can only exclude a person and can never establish identity.

 3. Comments to Police - When police told Mickens that they knew Mickens had killed Hall, Mickens denied it and stated, "You didn't find any knife on me, did you?"  The police detective who handed Mickens the warrants charging him with killing, abducting and sodomizing Hall, claimed that Mickens said, "I accept the warrants that means I'm guilty, don't it?"  Neither of these statements can uphold Mickens' guilty verdict.

 Mickens' reference to the knife is insignificant because the crime was heavily reported in the media including accounts stating that "sources say Hall died of multiple stab wounds."  Also, the Commonwealth maintained that Hall was not killed with a knife; he was killed with some sharp "tool" which produced parallel wounds.

 In addition, the "accept-the-warrants" statement holds no water as an admission because Mickens not only was never found guilty of the charges supposedly thrown before him, but the Commonwealth did not even take him to trial on them!  The warrant claimed that Mickens had murdered Hall in the course of abduction, robbery, and sodomy. The sodomy charge was dropped by the prosecutor, and a judge ordered that the robbery and abduction charges dismissed for lack of evidence.

 4. Jailhouse Snitch - The Commonwealth also presented the testimony of Tyrone Brister, who had been confined in a holding cell at the courthouse with Mickens on March 26, 1993, about a year after Hall's murder.  Brister testified that he had a single 5-10 minute conversation with Mickens while the two were in a holding cell outside the courtroom.  Brister said he asked Mickens why he was in the holding cell and Mickens answered, "They said I stabbed somebody 140 something times in the head," then lowered his voice and said, "which I did."  Mickens also told Brister that "they" said he also sodomized the victim and stole his sneakers.  Again, Mickens lowered his voice and said, "which I did."  Of course, to those experienced in the legal profession this kind of "snitch" testimony is so inherently suspect that many States require that jurors be told to eye the testimony cautiously.  No cautionary instruction was given to jurors in this case.  Mickens did not make this statement and, moreover, the statement is clearly contradicted by the evidence.  As mentioned above, even the Commonwealth conceded that there was no evidence whatsoever of forcible sodomy.  The inherently suspect character of Brister's testimony is driven home by the fact the Commonwealth did not even charge Mickens with behavior which Brister maintains Mickens offered to confess in a fleeting conversation with a total stranger.

 5. Genetic Material - An affidavit submitted by the Commonwealth in the habeas corpus proceedings in this case stated that the DNA evidence in this case "was [not] likely to be considered as decisive by the jury."  The Commonwealth used this affidavit to defeat Mickens' efforts to get a DNA expert appointed to his case.4

 EVIDENCE NEVER PROVIDED TO JURORS OF MICKENS INNOCENCE

 Saunders claimed to have looked at police files made available by the prosecutor.  These files contained several pieces of evidence indicating that someone other Mickens killed Tim Hall. None of this evidence was presented to the jurors.  In fact, Saunders never investigated this exculpatory information.  The Governor is the only person who will have an opportunity to consider the evidence.

 Bernard Gordon (the father of the family with whom Hall lived at the time of his death) told the police that "Tim [Hall] had been ducking three guys [he] owed money to for about three months.  They came to the apartment at least once."  A newspaper also reported this story from another source.

 Alicia Thrash and Charity Fleming, two friends of Tim Hall's, reported to police that Hall was being harassed by a prostitute on the night of the murder.   Evidence of that sort also might have allowed counsel to argue the existence of another perpetrator.  After Hall was murdered, Thrash spoke to "Stephanie," Hall's ex-girlfriend.  Stephanie told Thrash that she had talked to Hall on the night of his death.  Thrash provided the following statement to the police:

 Everything got real messed up cause when we went to the wake [for Hall], this girl named Stephanie said Timmy [Hall] had called her Saturday night, all scared and nervous, talking about this prostitute was harassing him, saying all kinds of stuff, that he was harassing him over something or other, & then she told him to come pick her up, and he said that he was at the end of 29th Street, that is where he said by the construction office, that's where he was at. & she said he called her & told her to come pick him up like that.

Thrash also reported to police that her boyfriend, Rob Porter, saw two black males on Saturday night coming from the area where Tim Hall's body was found.  Charity Fleming's statement to the police reported that she talked to Tim Hall on Sunday (rather than Saturday) around 6-7 and wanted her or Stephanie (Ex-girlfriend) to pick him up at 29th St because of problems he was having with a girl he picked up on Washington Ave. [a] couple of days before.  (This evidence was especially important because the Commonwealth admitted that it could not determine the precise date on which Hall was killed and Fleming's assertion that Hall was still alive on Sunday could have helped to undermine the relevance of the testimony of Vincent West and Bruce Mitchell that Mickens was lurking around the area where Hall was murdered on Saturday night.)

Phyllis Alford, who operated the corner grocery, told police that she thought the older brother who lived at the house where Tim Hall stayed had committed the crime. She said that she knew that the older brother had been in a juvenile detention home previously.

 Jurors also never heard evidence suggesting that Timothy Hall's homicide was not capital murder.  A capital murder conviction could only be attained if it was proven beyond a reasonable doubt that an intentional murder was committed in the course of an attempted forcible sodomy.  In order to prove this, the evidence must show that it was the intention of the killer to engage in sodomy with the potential victim against his will and without his consent and that the murder took place during the commission of the attempted forcible sodomy.

 This showing is quite distinct from the act of murder.  No one would suggest that there was evidence indicating that Timothy Hall "consented" to be murdered; however, if there was evidence suggesting that Timothy Hall may have consented to the acts which the Commonwealth believed suggested sodomy, it could raise a reasonable doubt whether the prosecution could prove that the killer was attempting forcible sodomy -- even though there was no suggestion that the murder itself involved consent at all.

 This kind of evidentiary analysis resulted in dismissal of the initial capital murder charges made against Mickens.  The prosecution first charged Mickens with capital murder for an intentional killing in the course of abduction, robbery, and forcible sodomy.  When the judge heard the evidence at the preliminary hearing and saw the topography of the crime scene (which required anyone who arrived at the scene to climb down a steep slope covered with brush and trees, and up another rocky embankment), the court dismissed both charges.  When the prosecutor realized that there was no evidence whatsoever of forcible sodomy, he dropped those charges as well.

 Had the judge been provided even an inkling of the evidence available indicating that the encounter between Hall and his eventual killer was consensual these charges too could have been eliminated and the trial would have proceeded as a first degree murder.  If Mickens were convicted of this charge, the maximum sentence he could receive would have been life without possibility of parole.

 Evidence not provided to jurors and showing that there was a reasonable doubt whether there was an attempted forcible sodomy includes the following:

 1. FBI Experts - Experts from the Federal Bureau of Investigation analyzed the crime scene and concluded that there was evidence that Timothy Hall either "possibly knew the killer or didn't feel threatened when approach was made[.]"

 2. Prostitute - A friend of Tim Hall's was reported in the newspaper as saying that she thought "maybe he was hustling some guys [and] just picked the wrong guy," adding that she thought Hall was having sex with men for money.   "He would say he was broke, then he would come back and have money.  And he started having new things, like new shoes."  She said that "[h]e was ashamed of it but desperate and needed it to get by."

 3. Clothing - Timothy Hall's body was found nude from the waist down, except for socks.  Hall's shoes were off and his pants were found on the ground off the mattress.  There was no blood detected on the pants, clearly indicating that his shoes and pants were removed and that he turned on his stomach before any injury occurred.

 CONCLUSION

 Mickens' conviction and death sentence were obtained in a trial at which the Commonwealth arranged for him to be represented by the victim's lawyer.  The Commonwealth's system for obtaining death sentences must do better than this.  There will be no doubt that Mickens' attorney has acted unethically in this matter.  The failings of the judge and prosecutor are also beyond dispute.  Mickens' execution should not be allowed to go forward in the face of such breaches of ethics and duty.  The Governor will reveal his commitment to ensuring fairness in cases of exceptional neglect, and will honor the Commonwealth's sense of fairness and justice by providing that Mickens' execution not take place.

 The Governor should not stand idly by while Mickens is executed because his lawyer's failed ethics and procedural technicalities combine to prohibit the Virginia courts from enforcing the law.  Mickens asks that the Governor grant him a pardon conditioned on Mickens' agreement not to assert his right to "double jeopardy" thus allowing the Commonwealth, should it so choose, to make him face trial with an non-conflicted lawyer as an advocate, or provide such other relief as the Governor deems appropriate.

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1.  While representing Hall, Saunders learned the following information: (a) Hall had been charged with carrying a concealed weapon at the intersection of 27th Street and Marshall in Newport News;  (b) Hall's mother had pressed charges against him for assault ...;  and (c) Hall was not living with his mother at the time of his death.  Saunders met with Hall for fifteen to thirty minutes and they discussed the circumstances surrounding each of the charged crimes.   Saunders obtained confidential information from Hall and learned "confidences" and "secrets" in his representation of Hall that he (Saunders) was bound not to reveal.   See Va.Code Prof'l Responsibility DR 4-101 (Michie 1992).  Moreover, under Virginia law even the charges against Hall were confidential because they were in Hall�s juvenile court records which cannot be opened to those outside the juvenile court system without a court order.   See Va. Stat. Ann. � 16.1-305.

2.  Juxtaposed to Saunders' duty to remain loyal to Hall by maintaining his confidences and secrets was a duty he owed to his new client, Mickens.   As illustrated by the American Bar Association's standards, Saunders had the duty to conduct a thorough pretrial investigation for Mickens: "Defense counsel should conduct a prompt investigation of the circumstances of the case and explore all avenues leading to facts relevant to the merits of the case and the penalty in the event of conviction."  ABA Standards for Criminal Justice Standard 4-4.1(a) (3d ed.1993).   The Supreme Court has recognized the ABA standards as "guides to determining what is reasonable."

 3.  The Dowell Court also found that the particular conflict in the case had an adverse affect but offered this as an Additional basis for relief, not as a pre-requisite to the relief granted.

 4.  The Commonwealth subjected a semen stain found on the mattress under Tim Hall�s body to DNA analysis (RFLP type).  Only two of the four probes tested showed a match; the other two were inconclusive.  Mickens' DNA pattern was consistent with the two probes, as is the pattern of every one in 27,000 Caucasians, one in 6,000 African-Americans, and one in 2,000 Hispanics. The tests could not determine the ethnicity of the contributor and could not reveal how long the semen had been on the mattress.  (The mattress lay beneath the cover of an overhanging parking deck protected from the elements.)  Testing (PCR type) of cigarette butts found underneath the parking lot revealed the most common pattern in the human population.  Both Hall and Mickens shared this pattern.