Tuesday, November 6, 2001

RICHMOND Robert J. Wagner was reviewing court records for a client sentenced to death for sodomizing and murdering a teen-ager when he made a startling discovery.
Walter Mickens’ trial lawyer was representing the victim, Timothy Hall, on assault and concealed weapons charges at the time of Hall’s death. Mickens was never told about his lawyer’s connection to the boy he was accused of killing.
“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,” Mr. Wagner said.
Today, Mr. Wagner will tell the U.S. Supreme Court that Mickens deserves a new trial because his first one was tainted by the defense attorney’s conflict of interests.
The 4th U.S. Circuit Court of Appeals rejected that argument last year. The court ruled 7-3 that Mickens failed to prove that the attorney’s 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.
“We actually have under death sentence a man who was represented by a lawyer who had a fundamental conflict of interests. For those of us in the ethics world, that’s kind of a full stop,” said Larry Fox of Philadelphia, former chairman of the American Bar Association’s Ethics Committee and author of the brief.
Mickens, 47, was convicted of capital murder in the 1992 death of Mr. Hall, whose half-naked body was found on a dirty mattress at an abandoned construction company in Newport News, Va. He had been stabbed 143 times.
Mr. Wagner was working on Mickens’ appeal in 1998 when he learned that his client’s trial lawyer, Bryan Saunders, also had been the victim’s attorney. Mr. Hall had been accused of shoving his mother during an argument and carrying a concealed knife in his car.
A judge dismissed the charges against Mr. Hall after learning of his death on a Friday, then appointed Mr. Saunders to represent Mickens the following Monday.
Mr. Wagner argued on appeal that Mr. Saunders failed to dig up negative information about Mr. Hall or use information obtained under attorney-client privilege that could have helped Mickens.
A panel of the federal appeals court ruled 2-1 that Mickens didn’t get a fair trial. At the very least, the panel said, Mickens should have been told about Mr. Saunders’ situation so he could assess his lawyer’s loyalty.
The full court reversed the ruling, however. Mickens appealed to the Supreme Court, which agreed to hear the case the day before his scheduled execution last April.
George Rutherglen, a University of Virginia law professor who teaches legal ethics, said conflicts of interests often do not violate the Constitution. This one does, he said.
“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,” Mr. Rutherglen said.
Mr. Wagner has argued that Mr. 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 argued in a Supreme Court brief that such a defense was not plausible because it conflicted with Mickens’ claim that he did not even know Mr. Hall.
The state also notes that Mr. Saunders’ co-counsel, who had no conflict, took the lead in the penalty phase of the trial. That lawyer looked into Mr. Hall’s background and decided against an “attack the victim” strategy, the state says in its brief.
Mr. Beales’ office declined to 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.”
Mr. Saunders has said he felt no conflict of interests and believed his duty to Mr. Hall ended when he learned his client was dead.
Mickens, 47, has been on Virginia’s death row for eight years, longer than any other inmate. If he loses in the Supreme Court, his execution can be rescheduled.

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