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Prove the unprovable or die



Published: Thu, April 4, 2002 @ 12:00 a.m.



There can be little doubt that the crimes of which Walter Mickens Jr. was convicted merit his execution. He was sentenced to death for the murder and forcible sodomy of Timothy J. Hall, who was 17 at the time of his death.

But there's a twist to the case.

Before his death, Hall had been charged with assault in a case that had nothing to do with Mickens. Hall had a court-appointed attorney in that case, Bryan Saunders.

A judge dismissed the case against Hall on the basis of his death. Three days later, the same judge appointed the same Bryan Saunders as Mickens' attorney. That meant Mickens' lawyer had been Hall's lawyer on the day that Mickens was accused of killing him. That's an obvious conflict of interest.

Even though Hall was dead, Saunders still owed him a degree of loyalty, and was still bound not to betray any confidences he came by in the course of acting as Hall's lawyer.

But Saunders also owed Mickens his undivided attention, especially in a death-penalty case. Mickens claimed that he didn't rape Hall, that the sex was consensual. Saunders was also obliged to investigate Hall's background and present a defense based -- in part, at least -- on Hall's having been charged with assault, the charge that Saunders had been hired to defend Hall against.

An old, old rule: As a brief filed on Mickens' defense noted, the admonition against conflict of interest dates to the Bible: No servant can serve two masters.

And as the brief points out, it is impossible to reconstruct exactly how Saunders' conflict of interest may have affected the defense case he built for Mickens. His was in clear violation of the Virginia Code of Professional Responsibility by taking on a case fraught with conflict and by not informing his new client of the conflict.

Did he allow the need to protect himself from being found out keep him from pursing every lead that might have worked to Mickens' benefit? Which possible defense roads did he leave untraveled because of his residual obligations to Hall?

Those questions seem to be impossible to answer, but in a shameful decision by the Supreme Court of the United States, Mickens was told it was his obligation to prove just how Saunders' conflict of interest damaged his defense.

By a 5-4 vote, the court ruled that Mickens was not entitled to a new trial and the death sentence against him stands. No one can know what factors clouded the court's judgment in this case, but it is clearly wrong for a man on trial for his life to have his victim's lawyer as his advocate.




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