Mickens, Walter, Jr. v. Taylor, Warden (VA) (03/27/2002)

By: Christine Oliva, Medill News Service

Questions presented

Did the appeals court err in holding that a defendant must show an actual conflict of interest and an adverse effect in order to establish a 6th Amendment violation where a trial court fails to inquire into a potential conflict of interest about which it reasonably should have known?

Brief

Walter Mickens Jr. would be dead by now if it werent for a file clerks mistake.

Mickens was convicted of capital murder in Virginia for the 1992 killing and attempted sodomy of 17-year-old Timothy Hall. The jury found that the killing was ""outrageously and wantonly vile"" and sentenced him to death. He received a second sentencing hearing because of a parole-related issue in 1996 and was again sentenced to die.

Mickens continued to appeal, but it wasnt until two years later that a court-appointed lawyer stumbled upon information that apparently had not surfaced earlier.

While researching the case in anticipation of filing a habeas petition in federal court, the lawyer was mistakenly given Halls juvenile records in addition to the material he requested. The sealed records contained the name of Halls lawyer, Bryan Saunders. He had represented Hall on unrelated juvenile charges up until his death. Saunders only represented Hall for eight days, but sometime during that week they met for about a half hour to discuss the case. Hall was killed before his first court appearance.

Saunders was the same attorney who was appointed the following week to represent Mickens in his murder case. In fact, the same judge, Aundria Foster, who had appointed Saunders to represent Hall in his juvenile case, appointed Saunders to represent Mickens in his alleged murder of Hall.

Mickens had no idea that Saunders had been representing Hall before his own trial. And he didnt know that the same judge who dismissed the charges against Hall was the one who on the next business day assigned Saunders to represent the man charged with his murder.

The judge never asked Saunders if he had a problem defending Mickens. And Saunders never told anyone — neither his co-counsel in the case nor Mickens — about the potential conflict.

A different battery of lawyers for Mickens filed a habeas petition in federal court in June 1998, claiming the newly discovered information showed that Mickens had been denied effective assistance of counsel.

The Commonwealth of Virginia countered that Saunders did not perceive any ""actual conflict,"" did not think he had received any confidential communications from Hall, and saw no connection between the two cases.

But Mickens lawyers said Saunders violated both a legal duty of loyalty to Hall and an ethical duty of loyalty to Mickens by taking the case.

""All of the major players in the courtroom knew,"" said Robert Lee, one of the attorneys now representing Mickens. ""Everyone responsible for seeing that he had a fair trial — the judge, the defense attorney, the prosecutors office — knew, or should have known, and did nothing.""

Nonetheless, the federal judge denied Mickens habeas petition, concluding that ""the possible conflict of interests presented by Saunders successive representation of Hall and Mickens never ripened into an actual conflict nor was Saunders advocacy impaired thereby.""

Mickens appealed, and, on Sept. 14, 2000, a divided 4th Circuit Court of Appeals panel initially reversed, but then on en banc review by all the judges in the circuit, the 4th Circuit, by a vote of 7-3, sided with the Commonwealth of Virginia and affirmed.

Writing for the majority, Judge H. Emory Widener said, ""The 6th Amendment guarantee of counsel does not guarantee an ideal or perfect representation.""

In considering whether Mickens was denied effective assistance of counsel on grounds of a conflict, the majority rejected a per se rule that would find that an attorney conflict of interest necessarily results in a denial of due process.

Considering Supreme Court precedent, the appeals court majority said that Mickens had to demonstrate two things:

* The attorney labored under an actual conflict of interest* That conflict adversely affected the attorneys performance in trial

Since Mickens failed to show an adverse effect, the en banc appeals court affirmed the lower courts decision without deciding whether he demonstrated that Saunders had labored under an actual conflict of interest.

But Judge M. Blane Michael, in dissent, argued that ""a serious 6th Amendment violation"" had taken place. Michael said that when the court ignores an apparent conflict, the defendant should only have to prove that the conflict exists, not that it adversely affected performance.

Mickens had argued that an unconflicted counsel would have raised questions about the attempted sodomy charges. A few of Halls friends said they were worried that Hall had been working as a male prostitute to make ends meet. If Saunders had persuaded the jury to believe the sodomy was consensual, Mickens would not have been eligible for capital punishment.

""Here, the judge who appointed the lawyer for Mickens ignored the apparent conflict,"" Michael wrote in dissent. ""And, as it turns out, the lawyer was actually saddled with a genuine conflict while he represented Mickens É he is entitled to a new trial.""

On April 16, 2001, the U.S. Supreme Court stayed Mickens execution the day before Mickens was to die in Virginia, accepted the case for review, allowed Mickens to proceed in forma pauperis, and limited review to the question presented above.

On October 1, 2001, the Court granted to the U.S. Solicitor General permission to participate in the case and split the time for oral argument.

On March 27, 2002, the Court, divided 5-4, held against Mickens that a defendant must show that an attorney conflict of interest adversely affected his counsel's performance for there to be a 6th Amendment denial of a right to counsel.

Justice Antonin Scalia wrote the majority's lead opinion, with Justice Anthony Kennedy adding a concurrence. Three of the four dissenting justices - Justices John Paul Stevens, David Souter and Stephen Breyer - authored separate dissents.

About ten weeks later, on June 13, Mickens was executed by lethal injection.