- The Washington Times - Friday, June 7, 2002

RICHMOND A killer scheduled for execution next week asked Gov. Mark R. Warner for clemency, saying he didn't receive a fair trial because his attorney had previously represented the murder victim.

Walter Mickens Jr., 47, has been on death row for nine years longer than any other current Virginia inmate for raping and killing a 17-year-old boy in Newport News in 1992.

The U.S. Supreme Court rejected his argument in March, and he is set for execution on Wednesday night.

Mickens' court-appointed attorneys met with Mr. Warner's chief counsel, Robert Blue, to discuss the clemency request on Wednesday. Warner spokesman Kevin Hall said the governor would be briefed and would make a decision at the "appropriate time."

The Supreme Court stepped in a day before Mickens' last scheduled execution in April 2001 and agreed to consider whether he received a fair trial while being represented by the same lawyer who had once represented his victim, Timothy Jason Hall.

The court ruled 5-4 in March that Mickens received effective counsel even though he didn't know at the time that his attorney had been connected to the victim. The majority said Mickens failed to prove that the conflict of interest had hurt his case. Dissenting justices said Mickens was victimized by the system.

Mickens' attorneys said that Mr. Warner should consider legal ethics in deciding the case.

"The court didn't take into account that this is a death-penalty case, and death-penalty cases are different," said Robert J. Wagner, who has represented Mickens since 1998. "This didn't seem to be a genuine concern of the majority."

A coalition of attorneys and law professors from around the country have appealed to Mr. Warner on behalf of Mickens, signing a letter written by Lawrence J. Fox, a former head of the ethics committee of the American Bar Association.

Mr. Fox said the attorneys got involved in the case because the Supreme Court ruling trivializes the importance of lawyer ethics, particularly in death-penalty cases.

"I don't know how we can ever say we have a fair system of justice when these rules that apply to everybody can be cast aside in a case that involves the ultimate punishment," he said.

"This is so fundamental, it's as if he had no lawyer at all. We're so tough on lawyers all the time, and the reason is to protect the clients. This client was totally unprotected."

Timothy, a troubled teen-ager, was found sprawled half-naked on a dirty mattress at an abandoned building in Newport News on March 28, 1992. He had been robbed, sodomized and stabbed 143 times, according to investigators.

Mickens was arrested a short time later and got a court-appointed attorney, Bryan L. Saunders. Mr. Saunders had appeared in court only days before to represent Timothy on an assault and battery charge, which was dropped when it was discovered Timothy had died.

The judge who appointed Mr. Saunders to Mickens' case was the same one who had been set to hear Timothy's case.

Mr. Saunders declined to comment on the pending execution.

Mickens would be the third person executed in the state this year, and the 86th since capital punishment was restored in Virginia in 1976. His is the first request for clemency that Mr. Warner, a Democrat, has received as governor. The two men executed this year did not file requests.

Generally, granting clemency means commuting a death sentence to life in prison, Mr. Wagner said.

Mr. Wagner said he visited Mickens in prison last week and that he was still hopeful for a last-minute reprieve.

"He's prepared for anything," Mr. Wagner said. "He's expecting the worst and hoping for the best."


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