- November 5

Court Reviews Death Penalty Case

By ANNE GEARAN

WASHINGTON - Walter Mickens had many things working against him as he went to trial for raping and killing a 17-year-old boy, including substantial physical and circumstantial evidence.

The Supreme Court questioned Monday whether Micnnnkens also had another thing working against him - a lawyer who could not give his all because he had, until days earlier, represented the victim in another case.

 The Virginia case is part of the high court's broadest review of the death penalty in years, and one facet of a question that has troubled at least two Supreme Court justices: Do people facing the death penalty get adequate legal help?

 Later this term, the court will also revisit the debate over whether it is unconstitutionally cruel and unusual punishment to execute the mentally retarded.

 Mickens did not know about his lawyer's other work, and no one who did know raised an alarm. Mickens was convicted and sentenced to death. Lawyers trying to save Mickens from execution discovered the situation years later.

 ``Walter Mickens has been deprived of his rights ... to conflict-free counsel,'' lawyer Robert J. Wagner argued Monday.

 The Constitution's Sixth Amendment guarantees the right to a lawyer. Like many people facing a potential death sentence, the right to a lawyer for Mickens meant one appointed by the state for him.

 Timothy Hall was stabbed 143 times and left sprawled on a mattress in a seedy part of Newport News, Va., in 1992. Mickens was arrested days later.

 The high court justices asked few questions about Hall and none about the killing. They focused on whether a judge should have called foul or at least held a hearing to see if the court-appointed lawyer could do his job adequately.

 ``What should the rule be? What should we do?'' asked Justice Stephen Breyer (news - web sites).

 For Mickens, an impartial lawyer could have meant the difference between life in prison and a death sentence, his new lawyers have said. The trial lawyer, Bryan Saunders, did little or nothing to raise questions about Hall's own background, and did not challenge Hall's mother when she made an emotional statement about her son on the stand.

 Saunders knew that all was not well between mother and son - he had represented Hall in an assault case brought by Hall's mother.

 Justice Antonin Scalia repeatedly asked Wagner how he could be sure that Saunders' role was enough to merit a new trial for Mickens.

 ``Why does that constitute a conflict,'' unless it can be proved that Mickens suffered as a result, Scalia asked. ``That shows at most the potential for a conflict.''

 The 4th U.S. Circuit Court of Appeals rejected Mickens' argument last year, ruling 7-3 that he failed to prove the alleged conflict affected the outcome of the case.

 A group of legal ethics experts has taken Mickens' side, arguing in a friend-of-the-court brief that his Sixth Amendment right to effective legal representation was violated.

Mickens, 47, has been on Virginia's death row for eight years, longer than any other inmate. He was scheduled for execution last April, but that was put off when the high court took his case.

VIRGINIA:Virginia's longest serving death row inmate may get new trial

While reviewing the case of a client appealing a death sentence for sodomizing and murdering a teenager, lawyer Robert J. Wagner made an alarming discovery - the same attorney who had defended his client during trial had also represented the victim.

 On Monday, Wagner will tell the U.S. Supreme Court that condemned man Walter Mickens Jr. deserves a new trial because his 1st one was tainted by the trial lawyer's conflict of interest.

 "I really couldn't believe a lawyer would have accepted appointment to a death penalty case after having represented the person the defendant was accused of killing," Wagner said in an interview.

 The 4th U.S. Circuit Court of Appeals rejected Wagner's argument last year, ruling 7-3 that he failed to prove the alleged conflict affected the outcome of the case.

 A group of legal ethics experts has taken Mickens' side, arguing in a friend-of-the-court brief that his Sixth Amendment right to effective legal representation was violated.

 It was "a fundamental conflict of interests," said Larry Fox of Philadelphia, former chairman of the American Bar Association's ethics committee and author of the brief. "For those of us in the ethics world, that's kind of a full stop."

 Mickens, 47, has been on Virginia's death row for eight years, longer than any other inmate. He was scheduled for execution last April, but that was put off when Wagner appealed to the Supreme Court. If the high court rejects his appeal, Mickens' execution can be quickly rescheduled.

 Mickens was convicted of capital murder for the 1992 death in Newport News of Timothy Hall, 17, who had been stabbed 143 times.

 Wagner discovered in 1998 that at the time of Hall's death, the teen faced assault and concealed weapons charges and was being represented by attorney Bryan Saunders.

 After learning of Hall's death, a judge dismissed the charges against him. Three days later, the same judge appointed Saunders to represent Mickens on charges of killing Hall.

 Saunders says he felt no conflict of interests and believed his duty to Hall ended when he learned his client was dead.

 Wagner has argued that, among other things, Saunders failed to explore the possibility that the sexual encounter was consensual. Without the sexual assault, the murder would not have been a capital crime.

 Virginia Attorney General Randolph Beales argues in a Supreme Court brief that such a defense was not plausible because it conflicted with Mickens' claim that he did not know Hall.

 The state also notes that Saunders' co-counsel, who had no conflict, took the lead in the trial's penalty phase.

 A panel of the 4th Circuit appeals court ruled 2-1 that Mickens didn't get a fair trial. At the very least, the majority said, Mickens should have been told about Saunders' situation so he could assess his lawyer's loyalty.

 The full 4th Circuit reversed the ruling and Mickens appealed to the Supreme Court.

 George Rutherglen, a University of Virginia law professor who teaches legal ethics, said that while conflicts of interests often do not violate the Constitution, this one does.

 "The attorney's loyalty to his former client and whatever confidential information he obtained would have impaired his ability to defend his client to the fullest extent," Rutherglen said.

Beales' office wouldn't comment on the case, but the prosecutor who handled Mickens' case said he is confident the conviction will be upheld.

"Not only do Mr. Mickens' lawyers have to show there was a conflict, they also have to show he was denied his right to a fair trial," said Newport News Commonwealth's Attorney Howard E. Gwynn. "Having prosecuted the case, I know he got a fair trial."