Supreme Court of the United States

535 U.S. 162 (2002)

Summary:

A man walking along the James River in Newport News on March 30, 1992, found Timothy Jason Hall's body by an abandoned building.

The 17-year-old was unclothed from the waist down except for athletic socks with orange stripes. He had been stabbed 143 times.

A medical examiner found that 25 of his wounds would have been fatal but that Hall probably lived for more than a half-hour after the attack before bleeding to death.

Mickens's DNA matched that in semen found at the scene, and he allegedly confessed to the crime to an investigator and fellow inmate.

In 1995, his death sentence was overturned on grounds that the jury should have been instructed that if sentenced to life imprisonment, Mickens was not eligible for parole. A second jury also returned a death sentence.

Mickens had been convicted in 1974 of robbery and sodomy, imprisoned, paroled, then convicted again in 1980 of robbery and sodomy.

Final Meal:

Mickens chose a last meal from the prison's regular menu, which included baked chicken, rice and carrots.

Final Words:

"I would just like to say in the name of the Father, Son and the Holy Spirit and Jesus' name, I forgive Gov. Warner for his decision and whoever I may have hurt or caused harm to, I pray that you can forgive me. I am truly sorry for the pain and suffering that I have caused. And to all my brothers and sisters in Christ, I wish you well."

ClarkProsecutor.org

The facts:

Virginians for Alternatives to the Death Penalty

In 1993, Walter Mickens, Jr. was sentenced to death for the murder and forcible sodomy of Timothy Jason Hall. Two years later, the United States Supreme Court vacated his death sentence and ordered that Mickens be granted a new sentencing hearing.

The court found that the trial judge had erred by not instructing the jury that if sentenced to life imprisonment, Mickens was not eligible for parole.

At the new sentencing hearing, Mickens presented evidence in mitigation. The jury was told that Mickens’s mother raised her children with the financial assistance of her grandfather. When Mickens began to get into trouble, his mother found little support or assistance in the juvenile justice system.

The jury also heard testimony that while he was imprisoned, Mickens was a good inmate. A correctional officer stated that he completed his chores, in addition to participating in "a Literacy Incentive Program that teaches inmates mathematics, spelling, and reading."

The correctional official also testified that Mickens would be housed with inmates with similar sentences if the jury sentenced him to life imprisonment rather than death. The prison counselor testified that Mickens had participated in counseling sessions and was cooperative. The jury again sentenced Mickens to death, despite the evidence of his troubled childhood and the testimony of the correctional officer and the prison counselor.

Mickens again appealed his conviction and death sentence. Mickens raised several issues on appeal, including the fact that one juror’s brother had been murdered.

The Appellate court refused this claim because the juror testified during voir dire that he would be impartial during the trial despite what had happened to his brother. Mickens also appealed on the grounds that his trial attorney, Brian Saunders, sufered from a conflict of interest. Saunders had represented Hall on assault charges prior to Hall’s death.

The same judge that dismissed the charges against Hall because of his death then appointed Saunders to represent Mickens.

Mickens did not learn that Saunders had represented Hall until Mickens’s new attorney accidentally discovered the information. The United States Court of Appeals for the Fourth Circuit held that Saunders’s prior representation of the murder victim did not create a conflict of interest that prejudiced Mickens’s defense. The Fourth Circuit rejected all of Mickens’s claims and affirmed his death sentence.

Walter Mickens, Jr. has been on death row since August 20, 1993.

Virginia Governor Warner Press Release

Statement by Governor Warner Regarding the Scheduled Execution of Walter Mickens. Jr.:

RICHMOND — Governor Mark R. Warner issued the following statement tonight on the scheduled execution of Walter Mickens, Jr. by the Commonwealth of Virginia.

“On June 3, 1993, Walter Mickens, Jr. was found guilty of the capital murder of seventeen-year old Timothy Jason Hall in the commission of, or subsequent to, attempted forcible sodomy. Mickens was sentenced to death. The trial, verdict, and sentence have been reviewed in detail by numerous state and federal courts, including the Supreme Court of Virginia and the Supreme Court of the United States.

After a thorough review of the Petition for Clemency and the judicial opinions regarding this case, I decline to intervene.”

ProDeathPenalty.com

Walter Mickens was sentenced to death for a particularly heinous and brutal murder. His victim, 17-year-old Timothy Hall, was forcibly abducted, sodomized and stabbed an incredible number of times. He was then left to die on a rotting mattress under a parking garage beside the James River in Newport News.

His body, nude from the waist down except for socks, was found on March 30, 1992. He had been stabbed over 130 times and it was determined that he might have spent about 40 minutes conscious while bleeding to death. The subsequent investigation found DNA evidence which conclusively identified the perpetrator as Walter Mickens.

The record shows that Mickens had convictions for two sodomies and four other violent felonies. During the penalty phase of Micken’s murder trial, evidence was presented which demonstrated how little regard Mickens had for societal order.

A former cellmate of Mickens had also been sodomized at knifepoint in the city jail by Mickens, much in the same manner that Timothy Hall suffered. Even as a child, Mickens was violent. An elementary school teacher testified that she had been robbed by Mickens after he stormed into her classroom and held one of her young students at knifepoint to get her to hand over her purse.

National Coalition to Abolish the Death Penalty

Walter Mickens - Scheduled Execution Date and Time: 6/12/02 9:00 PM EST

Walter Mickens, a 46 year old male, is scheduled to be executed by the state of Virginia on June 12th. Mickens was convicted [and sentenced to death] for the murder of Timothy Hall in 1993. Mickens’ case has received national attention because his death sentence was recently upheld by the U.S. Supreme Court on a 5-4 vote.

Mickens’ defense was significantly botched by his attorney’s conflict of interest. The attorney, Bryan Saunders, was actually representing the victim at the time of the murder. After Hall’s death, Saunders was appointed to defend Mickens. He did not reveal to the court, his co-counsel, or Mickens that he had previously represented the victim.

Saunders even joked about the complexity of his role: “ Since I represent Hall, do you think they’ll let me off the case?” he remarked after he was assigned to Mickens’ defense. Saunders’ bias in the case due to his former acquaintance with the victim led to his inadequate representation of Mickens.

According to a brief written by Mickens’ attorneys in the appeals process, Saunders exhibited a “constant disregard…of information and defensive strategies that would have cast Hall, his former client, in a bad light.” Saunders also failed to introduce evidence of Mickens’ troubled history into trial- a deprived childhood, alcohol and drug abuse, and an early introduction to crime- that might have affected the outcome of the case.

Saunders’ conflict of interest prevented Mickens from receiving adequate counsel. As a result, Mickens faces lethal injection in less than two weeks. Please write to the state of Virginia to protest his execution.

Execution Culminates Va. Legal Odyssey

By Maria Glod - The Washington Post

June 13, 2002

JARRATT, Va., June 12 -- Walter Mickens Jr. was executed tonight by injection, a punishment that came a decade after he sexually assaulted a Newport News teenager, stabbed him 143 times and left him to die on a dirty mattress. His death marked the end of one of Virginia's most divisive capital cases and one that split the U.S. Supreme Court 5 to 4.

The execution also brought Gov. Mark R. Warner (D) his first clemency request -- one that he struggled with for days before rejecting.

Mickens, 47, who had been on Virginia's death row longer than any other inmate, entered the death house at Greensville Correctional Center at 8:52 p.m. as family members of Timothy Jason Hall watched tearfully from behind a window.

He died 14 minutes later. "To whoever I may have hurt or caused harm, I pray that you can forgive me," Mickens said just before his execution. He also invoked God's name and said he forgave "Governor Warner for his decision." Mickens's mother, father, sister and brother visited him on his final day.

Over the past decade, the case slowly worked its way through the judicial system, coming before five courts and two juries. The U.S. Supreme Court in March denied Mickens's final bid for a new trial by one vote, rejecting his claim that his conviction was tainted because his court-appointed lawyer represented Hall at the time of the murder. "If your life was on the line, would you want the attorney representing you to have represented the victim?" Mickens's appellate attorney, Robert Wagner, said after the execution. "Is that fairness? The system failed Walter Mickens in this case."

The high court's ruling left Mickens's fate in Warner's hands. The governor's aides said Warner struggled with the decision throughout the day and was still seeking information this afternoon. Ultimately, Warner noted the courts' agreement on the punishment and declined to intervene.

A man walking along the James River in Newport News on March 30, 1992, found Hall's body by an abandoned building. The 17-year-old was unclothed from the waist down except for athletic socks with orange stripes. A medical examiner found that 25 of his wounds would have been fatal but that Hall probably lived for more than a half-hour after the attack.

Mickens's DNA matched that in semen found at the scene, and he allegedly confessed to the crime to an investigator and fellow inmate. "I lose my ability to rationalize when I think about the first wound, the screaming, the pain, the fear, the hurt and unknowing that my brother went through," Hall's sister, Laura Hare, wrote in a letter she sent to Warner along with a photo of her brother. "Please tap a pen 143 times and imagine what must have been involved with stabbing someone 143 times."

Mickens, who had two sodomy convictions in the 1970s, was convicted of capital murder and attempted forcible sodomy in 1993. Two juries considered his punishment, and both recommended the death penalty.

But in recent days, Mickens's attorneys renewed arguments that their client's defense was flawed from the moment it began because trial lawyer Bryan Saunders was representing Hall on an assault charge. "The execution of Mr. Mickens under these circumstances would be a travesty of justice," Wagner and attorney Robert E. Lee, wrote in a 13-page petition for clemency. Mickens's case, they said, is "exactly the situation for which the 'safety valve' of clemency was intended."

Warner regarded the clemency decision as an "ominous power," his spokeswoman Ellen Qualls said. The governor continues to have "a real concern" about whether Mickens received fair representation but also considered the horror of the crime, she said. In her letter to Warner, Hare said her brother had survived a troubled childhood and was struggling to make it on his own.

The morning of his death, she recalled, he stopped at her home. "I managed to tell him that he needed to get his life together, and he told me that I was right, and that one day I would be proud of him," Hare wrote. "He left trying to prepare himself to live in this world, he left not knowing that he was about to meet the most cruel person."

Staff writer Michael D. Shear contributed to this report from Richmond.

Walter Mickens Jr.

The Washington Post

June 11, 2002

Walter Mickens's lawyers declined to allow him to be interviewed in person for this article because the governor still is considering his clemency petition. But the attorneys did allow Mickens to respond in writing to limited questions. Most of those centered on his legal representation at trial.

"The worst part of this was finding out that my lawyer had represented Timothy Hall and that nobody had told me about it," Mickens wrote. "That's the kind of information that anybody would want to know about their lawyer. But my right to know that information was taken from me because the court and Bryan Saunders kept it secret." Mickens and his lawyers have argued in court papers that a lawyer with no ties to Hall might have been able to deflect the tearful testimony of Hall's mother at Mickens's penalty hearing by going after Hall's own criminal charges.

"When I found out that Saunders had represented Hall, I felt that everyone in the court system – the judge, the prosecutor and everyone else – had totally let me down," Mickens wrote. "Nobody protected my rights or looked out for my interests." Saunders declined to be interviewed for this article.

Asked about Hall, Mickens wrote: "I think about Timothy Hall's family every day. I pray for him and for his family every day. I pray that Timothy Hall is at peace and I pray that his family can also be at peace."

Howard E. Gwynn, the Prosecutor

The New York Times

June 11, 2002

In his 12 years as Newport News commonwealth's attorney, Howard E. Gwynn has sought the death penalty only three times. "If you don't ask for it for Walter Mickens, when do you ask for it?" Gwynn said. "If not this person, then who?"

As the elected prosecutor, Gwynn feels it's his duty to personally try capital murder cases. He handled Mickens's case from the start, obtained a conviction and a death sentence, and then handled the resentencing when the case was sent back to Newport News by an appeals court. Even before Mickens was arrested, Gwynn said, the death of Timothy Hall had elements of a capital case: a vile and malicious murder committed with another felony.

Mickens's criminal record provided Gwynn more justification to seek the death penalty: Mickens had been convicted in 1974 of robbery and sodomy, imprisoned, paroled, then convicted again in 1980 of robbery and sodomy. Gwynn said that the crimes often involved children, and that "sodomy was the driving force, and robbery was a secondary issue."

Finally, Gwynn consulted the victim's relatives, considering their views on the death penalty. "I've had victims' families vehemently opposed to it," he said. Prosecuting any murder case, Gwynn said, "I have to be convinced within my own heart and mind that the person is guilty beyond any doubt. Only when I am convinced can I argue with enough passion and conviction to convince that jury." This time, Gwynn had the added pressure of a death penalty decision. "They're all tough calls," Gwynn said, "because literally you find yourself in the position of asking 12 people to take someone's life."

Once Gwynn decided Mickens's case was worthy of a capital murder charge, he never second-guessed himself. It was his second death penalty trial. In the first one, the jury decided against execution. "It's tremendously nerve-racking," Gwynn said. He tried a two-week case against Bryan Saunders, Mickens's attorney, and said he was unaware that Saunders had previously represented Hall. He didn't think that issue affected the trial. "I can't imagine he could have done a better job," Gwynn said of Saunders.

When the jury came back with its verdict in the penalty phase of the trial, the foreman held an eight-page verdict form. The first page carried a death penalty option. As the foreman passed the form to the judge, "I saw they had signed the first page," meaning the death sentence, Gwynn said. "It was very sobering." He added, "It was not a cause for rejoicing."

Gwynn said he would prefer seeking life-without-parole sentences in the worst murder cases, "because a death penalty case takes its toll on everyone," and a life prison sentence serves to protect the community. "But as long as we've got a death penalty, I'm going to seek it," Gwynn said. "It's the law of the commonwealth, and I'm supposed to uphold the law."

Laura Hare, Hall's Sister

The Washington Post

June 11, 2002

For the past 10 years, Laura Hare has scheduled her life around the courts. While waiting to find out what the criminal justice system will do with Mickens, Hare has put off vacation plans, pulled her children out of school for hearings and repeatedly steeled herself for more painful news from the courts. "Every time there's another hearing, it's as if Timmy's corpse gets up out of the ground and walks into the courtroom. He truly has never been formally buried," she said. In a country where capital cases take an average of 11 years to go from conviction to execution, Hare's experience is wrenchingly typical.

A legal secretary from Newport News, Hare has watched two juries and five courts hold hearings, often more than once. Mickens's death sentence has been overturned and reinstated twice. And last year, when Virginia finally set his execution date, the U.S. Supreme Court stepped in one day before the lethal injection was to be administered. Even today, she cannot be sure what will happen. "I'm a back-seat passenger in this vehicle, and it just changes drivers," Hare said. "You have to accept that you are really helpless."

Eight years older than her brother, Hare raised Timmy through his teenage years. Their father had died young of a heart attack, and their mother – who is now estranged from the family – had mental health problems. Hall lived with Hare from age 11 to shortly before his death. "It took several years from the time that Timmy died that I could even look at a picture of him. . . . You think about the horrible pain he suffered. The medical examiner said he lived for 40 minutes," she said. "I think about the pain and fear he must have felt."

Hare says she has never doubted Mickens's guilt, and she does not believe that his right to a fair trial was affected by the fact that the defense attorney briefly represented her brother. She said she understands that Mickens's lawyers have to raise every possible issue. Still, she said it has been hard to explain to her sons, ages 16 and 17, why Mickens's lawyers have alleged that their uncle was a male prostitute, something she believes is untrue. The legal system "is there to protect us, regardless if it's the victim who was killed or the person who is on trial. It's a double-edged sword. You have to respect it in order to keep your own freedom," she said.

In the years right after her brother died, his death spurred Hare to work with then-Gov. George Allen (R) for the abolition of parole – Mickens had been paroled only a few months before Hall was murdered. "That was very helpful . . . that out of it happening, something bigger was born," she said, although she also discussed with her sons that the change came too late for their uncle. "This is for the victims yet to come," she says she told them.

Now, Hare hopes, her waiting will finally come to an end. A commutation would be better than having to relive her brother's death every time the case comes up for another court review, she said. If Warner does not intervene, Hare said, she will probably go to Greenville for the execution. But she says she may leave the room before the actual event.

"I feel I should probably be there," she said. "But I wouldn't want to watch him die. I have no desire to talk to him. Anything he would say would be to save his own soul or to brag." She added: "Mr. Mickens can give me nothing back with his life. There's nothing he could ever give to us that would bring Timmy back."

Ruby Bunn, Witness for the Prosecution

The Washington Post

June 11, 2002

He was only 7, a second-grader in her class, but Ruby Bunn has thought of him often over the past 28 years. Even now, the 76-year-old retired teacher can't stop seeing the child's terrified face, when Walter Mickens burst into their classroom and held a knife at the boy's head while robbing her. "I have not been able to talk about this without crying," said Bunn, apologizing during an interview in her Newport News home. "We were so helpless. There was nothing I could do to protect these students. The picture of that little boy is shaped in my memory, and I'll never forget it."

Mickens was convicted of robbing Bunn of $11 in her classroom Feb. 7, 1974; the child was not physically hurt. But Bunn would have to face Mickens again nearly 20 years later. After a jury convicted Mickens of capital murder in Hall's death, Bunn was summoned to the courtroom in 1993 to testify at his sentencing hearing. With Bunn's testimony, Commonwealth's Attorney Howard E. Gwynn hoped to convince 12 jurors that they should sentence Mickens to death. He wanted them to know about Mickens's violent past.

Today, sitting in her cozy living room filled with framed photographs of her grandchildren and a miniature school desk, Bunn once again relives that terrifying day when Mickens peered into her classroom through the glass in the door. "Miss Bu-unn," the children said in unison. "Somebody's at the door." Mickens walked into her classroom that afternoon, holding up a knife. "I want your wallet," he told her.

The children sat at their desks in stunned silence as he pointed it at their classmate's head. They watched their teacher pull out $11. "He continued to stare at me and stare at the class, like he wasn't going to leave," Bunn recalled. "Finally, he slowly backed out of the room."

Bunn was able to pick Mickens out of a photo lineup that night, and he was quickly arrested. She tried to reassure her students that they were safe now. They were studying all about people's jobs, and she explained "how we all work together and make a better community, and the police will take care of us."

When police investigating Hall's slaying knocked on her door 20 years later, they were startled when Bunn handed them a detailed, written account of the 1974 robbery, which she keeps to this day in her filing cabinet. If her teaching career had taught her anything, she said, it was to "document everything" while it's still fresh. When Bunn walked back into the courtroom in 1993 at Mickens's capital murder trial, she was still able to identify him, even though he had shaved his head.

After listening to her testimony and that of an inmate who had been sodomized by Mickens, the jury sentenced him to death. But when an appeals court later overturned the sentence, Bunn was summoned to court – again. "Is it ever going to end?" Bunn wondered.

If Mickens is executed tonight, Bunn said, she is sure of one thing: It won't make her memories of the little boy go away. Bunn said she did not want to testify in the capital murder case, but the police officers convinced her that "this is how democracy works." "I wasn't in the process because I wanted to be," Bunn said. "It was my duty to testify."

Becoming a crime victim herself did not change Bunn's views about the death penalty. She is not opposed to it, she says, if the crime is vicious enough. Asked if Mickens deserves to die for what he did to Hall, Bunn says it was not her decision to make. "I'd have to go along with the jury – 24 people who heard the evidence," Bunn said, referring to the two sentencing juries. "I'm certainly not going to rejoice over him dying."

David Seals, Homicide Detective

The Washington Post

June 11, 2002

David Seals expected remorse, maybe disgust, when he pushed gruesome photos of the slain teenager in front of the killer. But Walter Mickens just scooted closer to curiously examine images of a 17-year-old he had sexually assaulted, stabbed 143 times and left to bleed to death. "I wanted to show him what a savage animal he was. Not only did it not shock him, but he pulled up his chair like he was looking at a family album," Seals said. "I thought Walter Mickens deserved to die."

It was April 1992, and Seals, then the sergeant in charge of the Newport News Police Department's homicide division, had been working round-the-clock to catch the man who killed Timothy Hall. He has been a cop since 1978, investigated homicides since 1985 and staunchly supported capital punishment. "I would have said, 'Put me on death row and I'll throw the switch for all the killers,' " Seals said.

A decade later, after helping put Mickens and two other men on death row, Seals – a husband and father of two – said his experiences have led him to struggle with the morality of executions. He researched writings by Christian leaders who support capital punishment, trying to reconcile his faith and the law. "I've begun to think capital punishment should be reserved for the very, very heinous stuff," Seals said. "The devil is just as active as anyone else."

Seals remembers coming to the banks of the James River when Hall's body was found March 30, 1992. He looked down at the half-nude body on a mattress, white tube socks with orange stripes, dozens of stab wounds, and was stunned at the killer's rage. "He died a horrible death, there's no way you can put any understanding as to what he went through," Seals said.

Sleepless nights followed. Then, three days after Hall was slain, a Newport News woman awoke to find a teenager hanging dead from her backyard fence. He was nude from the waist down and had been stabbed repeatedly. Seals was convinced he was chasing a serial killer. Mickens was later charged in the killing of that man, Jonathan Woskobunik, 19, but the case was dropped because there wasn't enough evidence. No one else has been charged. The day after Woskobunik's slaying, Seals went to FBI profilers for help. They told him a serial predator would strike again. And if he didn't, he would probably return to the scene of Hall's death to relive that crime.

Even now, Seals is so emotional when he thinks back on the investigation, he sometimes lapses into present tense. "I'm fully convinced if we don't get this guy, we'll have another body," he said. On Saturday night, April 4, Seals put seven detectives on the street and joined them. "A patrol officer didn't have all the information, it might not click," he said. "It played really heavily on me," Seals said. "You can't think this doesn't get to you. It's overwhelming."

At 6:15 p.m., the call came over the radio. There were few details, just a report that a man on a bike tried to assault a child. "I'm hearing radio traffic. I said, 'Oh my God,' " Seals recalled. Seals and Detective Dallas Mitchell cruised the neighborhood looking for the bicycle. They didn't see it, so they drove to the waterfront where Hall died. "I got chills, goose bumps when I rounded that curve," Seals said. "I said, 'Mitchell, there he is.'‚" It was Mickens on a mountain bike.

"If a human being on the face of this Earth scares me, it's Walter Mickens," Seals said. "I think he should die. He's as much of a predator where he is now as if he were on the street." Still, he adds, he's grateful he wasn't a juror and is no longer sure he could have recommended the ultimate punishment. "Do we have the right to take human life?" Seals asked. "It might never be answered. It's a decision I don't think I'd want to make."

Commonwealth Attorney's Investigator David Seals was a Newport News police sergeant ten years ago when he was involved in a foot chase that started in this neighborhood, the "No Hundred" block of 29th St., and lead to the arrest of Walter Mickens. Mickens, who was convicted of captial murder in the death of Timmy Hall, whose body was found just a few hundred yards from where the chase started, is scheduled to die Wednesday.

(Kelly Presnell - For The Washington Post)

Leopold Schoch and Ann Redman, The Jurors

The Washington Post

June 11, 2002

Leopold Schoch will never forget the name or the number. "Timothy Hall," he says in the living room of his Newport News home. "One hundred and forty-three times." Schoch was foreman of the jury that convicted Mickens nine years ago. He can't remember Mickens's first name, but he has thought of him often over the years with each new appeal, each new delay.

"I was keeping up with it," said Schoch, 38, a technical supervisor for Siemens. As the case worked its way to the U.S. Supreme Court, Schoch became increasingly concerned for his family's safety. If the conviction were overturned, Schoch worried that Mickens might try to retaliate against the jurors who ordered his death.

Ann Redman, who served on the jury with Schoch, has also grown increasingly impatient with the time that has passed since his conviction in 1993 and the taxpayers' money that has been spent. "Every time I pick up the paper, I say, 'Look, here it is again,' " said Redman, 62, who recently retired as a school security officer in Newport News.

Redman believes that it was "definitely a conflict of interest" for Mickens's lawyer to have represented the victim. But she says Mickens got a fair trial anyway. She was convinced that Mickens was guilty of capital murder. Having to actually convict him of that, however, was another matter. "It was awful; it made me sick," Redman said. "I just wanted to be sure in my mind that he was definitely guilty. You still wonder if you've made the right decision. I didn't like having to decide that fate for anybody."

Schoch said the guilt phase of the trial, in particular, took a toll on the jury. "It was very tough on all of us, thinking you have someone's life in your hands," Schoch said. "It's easy to judge until you actually have to." But once they all agreed he was guilty, the decision to give Mickens the death sentence came quickly, Schoch said. "Mickens made it easy for us," he said.

In fact, hearing about his violent past during the sentencing phase – and listening to some of his victims testify – made some of the jurors feel more confident about their guilty votes. "It was a relief when we got to hear about his past," Schoch said. "We all felt we had done the right thing."

Now, both jurors hope the state will do the right thing. "I think he's a very evil person," Redman said of Mickens. "I will have a moment of silence." If Mickens is executed, Schoch said he will feel sad – for Mickens's mother, Catherine, who declined to be interviewed for this article. "Everyone in the jury room – our hearts went out to his mother," Schoch said. "You could tell she was trying to come up with anything to save her son's life. My heart still goes out to her."

Hearing Mickens's mother on the witness stand and having to decide someone's fate still haunts Redman, too. "It always will bother me," she said. "It was a bad time. I hope and pray I never have to serve on another one."

Robert Wagner and Robert Lee, Mickens's Appellate Attorneys

The Washington Post

June 11, 2002

When the juvenile court clerk mistakenly handed Timothy Hall's file to Robert Wagner, the Richmond lawyer thought he'd found a magic bullet. There on the jacket was the name Bryan Saunders, the lawyer who had defended Mickens against charges that he had sexually assaulted Hall and killed him. But in this case, Saunders was representing Hall. "I'd never heard of anything like it," Wagner said. "I thought I had found the nugget that would save Walter's life. Had he had unconflicted counsel, he never would have been convicted."

But the case turned from an apparent slam dunk into a roller-coaster ride. Wagner, 41, would win at one court, only to lose at the next. Mickens came within a day of execution last year, then fate handed Wagner the extraordinary opportunity of arguing before the U.S. Supreme Court. "It was something you dream about as an attorney," said Wagner, who was handling his first death row appeal. "But then having Walter's life on the line made it especially stressful."

And in the end, he fell just one vote short, losing 5 to 4 in March. Through it all, Mickens became more than a client. The inmate makes and sends Wagner cards for holidays, writes him poetry, and they talk on the phone at least every two weeks. "I consider Walter to be a friend of mine," he said. "A friend of mine's life is going to be taken away. It affects me personally."

Although Wagner argued the case to the justices, he was not alone. As is customary in Virginia, the case was also assigned to an experienced appeals lawyer – Robert Lee, the director of the Virginia Capital Resource Representation Center in Charlottesville. A former Franciscan friar, Lee has been involved in dozens of death row cases since he graduated from law school in 1992, including a handful that ended in narrow losses at the U.S. Supreme Court.

For Lee, the Mickens case stands out because of what he sees as poor lawyering at the trial level. Evidence that might have helped Mickens – hints of other suspects and the possibility that the assault might have been consensual sex – never made it in front of either jury that considered the case. Hall's killing would not have been eligible for the death penalty without the sodomy charge. "An enormous amount of information was never pursued," Lee said.

This case reinforced Lee's belief that the criminal justice system can't be trusted to get things right. "It is a bureaucracy like any other," he said. "It's no better or worse. Here we have a case that challenges us. What are we going to tolerate in Virginia? What kind of standard does the state set for its death penalty?"

Wagner is even more blunt. A former prosecutor and a current federal public defender, he says Mickens's prospective execution has shaken his faith in the courts. "I'm still in disbelief that . . . the conviction can stand," Wagner said. "A system that allows Walter to be executed under these circumstances is flawed."

ACLU.org

Walter Mickens, Jr. was executed by the state of Virginia on June 12th for the 1992 murder of Timothy Hall. Call or write Governor Mark Warner and express your disappointment that he let this execution happen.

Mr. Mickens' original lawyer, Brian Saunders represented the victim Mr. Hall until his death. According to the Virginia Code of Professional Responsibility, Saunders could not represent Mickens unless he obtained a waiver from Mickens. But Saunders never told Mickens that he was Mr. Hall's lawyer.

Regardless of whether you support or oppose the death penalty, no fair-minded person should have any confidence in the process that carried out this death sentence. Every person is entitled to fair and unbiased representation, but in Virginia, the quality of lawyers for death penalty cases is far from good. A recent study of the death penalty in Virginia revealed that lawyers appointed to represent people facing the death penalty are 6 times more likely to be publicly disciplined and 25 times more likely to have their licenses revoked or suspended than other defense lawyers.

Mr. Saunders did not adequately investigate or present key evidence to the jury that might have spared Mr. Mickens the death sentence. Specifically, to receive the death penalty, Walter Mickens had to be convicted of murder during the course of forced sodomy. Critical to the question of whether the victim, Timothy Hall, was forcibly sodomized was that he had reportedly been engaged in a pattern of sex for money and that he was being harassed by other possible perpetrators of the crime. But this information was not presented to the jury. These facts could have raised reasonable doubt as to Walter Mickens' guilt or spared him a death sentence.

Our criminal justice system only works if evidence is challenged to ensure its reliability. When a laywer's conflicted loyalties prevent him from challenging the State's evidence and presenting his client's strongest case, the resulting conviction is unreliable. Please call or write Virginia Governor Mark Warner and express your disappointment that this execution was carried out.

Death Penalty Information Center

Virginia Capital Representation Resource Center - Injecting a Lethal Dose of Poison to the Integrity of Our Adversary System of Justice.

May 24, 2002

PREFACE

The foundation of the adversarial system of justice is the faith that one is represented by a zealous advocate whose loyalty lay with his or her client alone. What happened in this case is an intolerable corruption of that promise of loyalty. It is intolerable not only in the visceral sense that no one would want to be made to rely on a compromised advocate. It also is simply not tolerated as an actual matter. Every state bar in the country has an ethical rule prohibiting a lawyer from undertaking a representation that involves a conflict of interest unless the client has waived the conflict.

Imagine that your son or daughter has just been seriously injured in a car crash with a drunk driver. Faced with the immediate cost of addressing the injuries and the fear of the unknown complications in your child's future, you decide to pursue a legal remedy to ensure full recovery. But you are unfamiliar with the particulars of the legal system so you seek the advice of a judge who recommends to you a lawyer. The lawyer takes your case to court but loses badly, and your child receives little or no compensation from the other driver.

Years later - by pure fortuity - your stumble across the remarkable fact that the lawyer the judge sent you to was actually a lawyer who was representing the drunk driver on criminal charges at the time of the accident. You also learn that the judge knew that before she recommended that lawyer to you. The lawyer who defended the drunk driver against your suit in court also knew about your attorney's representation. But they all stayed quiet.

How confident would you feel that your case was fairly developed, presented, and heard? If your son or daughter developed fatal complications from the injuries in the car accident, would you feel content at their passing because you had your "day in court" with a fair chance to obtain the resources to seek quality medical?

The mother and father of Walter Mickens are facing circumstances such as these. Only their son has been convicted of murder and will be put to death on June 12, 2002, at 9:00 p.m. despite the fact that the attorney provided to him by the judge in his death penalty trial was also representing the victim on criminal charges at the time of the crime.

INTRODUCTION

Executing Walter Mickens' based on a trial at which the Commonwealth arranged for Mickens to be represented by the victim's lawyer -- without ever alerting Mickens to this fact -- does not meet the standards expected for representation in a death penalty case in the Commonwealth.

Although researchers have discovered that Virginia attorneys appointed in capital cases in the past are more likely to be disciplined and even disbarred for ethical breaches than their peers, never before has the ethical violations of the appointed actually occurred in the death penalty case itself. If Virginia is to aspire to set an example for quality capital representation, it cannot tolerate the execution of a person after requiring that person to rely on the victim's own lawyer. More intolerable in this case, however, is the fact that, every person entrusted by the Commonwealth with the duty to ensure that Walter Mickens received fair consideration of the charges against him - the defense lawyer, the appointing judge, and the prosecutor - violated their ethical and moral obligations in this case.

Virginia justice demands that a person whose life may be taken in the name of the Commonwealth be provided a loyal and zealous advocate to put the matter to the crucible of adversarial testing. Virginia justice recoils when, such as occurred in this case, powerful and troubling evidence which could have been presented at trial but was not, leaves considerable doubt whether Walter Mickens is guilty of capital murder. And, although the circumstances presented in this case are so extraordinary that they are likely never again to come before a Governor of the Commonwealth, Virginia justice can not be passive, especially before determining whether to take a life.

Especially unique about this case is the fact that knowledge of the radical legal and ethical failings of those who assumed responsibility on behalf of the Commonwealth emerged too late for Virginia justice to correct them, despite precedents calling for their correction on the merits. The unusual manner in which the failures in this case came to light means that the only vehicle through which Virginia can act to address the defects is through the Governor's extraordinary intervention.

Bryan Saunders, the lawyer appointed to defend Walter Mickens on a capital murder charge had been representing the murder victim, Timothy Hall, on criminal charges at the time of his death. Despite an ethical duty to inform his client of anything that might cause a client to question his undivided loyalty, the lawyer never told Mickens of his representation of Hall. The lawyer's understanding of legal ethics was remarkably wrong.

The state judge who made the appointment was involved in both cases and knew or should have known of the apparent conflict. This knowledge triggered an unequivocal duty to inquire about the potential conflict and to make sure that Mickens knew of the circumstance presenting the potential conflict. But the judge failed to fulfill her judicial responsibility.

The same Commonwealth's Attorney's office handled the case against Hall and the case against Mickens, so the prosecutor also knew or should have known of the potential conflict. Despite this knowledge the Commonwealth's Attorney said nothing. No one -- not the attorney, the judge, or the prosecutor -- told Mickens that there might be a conflict problem, so he was never given a chance to object. A trial carried out in the face of such widespread ethical neglect cannot supply an accurate account or verdict, and did not do so in this case.

INDEFENSIBLE VIOLATIONS OF FUNDAMENTAL PROFESSIONAL DUTIES

A recent study of the death penalty in Virginia revealed that lawyer's appointed to represent people facing the death penalty are 6 more times likely to be publicly disciplined and 25 times more likely to have their licenses revoked, suspended, or accepted in surrender with charges pending. Never before, however, have the ethical breaches actually occurred at the trial which determined whether the client would live or die.

This case is awash in ethical and legal dereliction, staining each of the persons upon whom responsibility rests for a fair and reputable administration of justice.

The Judge

On April 3, 1992, Judge Aundria Foster dismissed the charges against Timothy Hall because he was deceased due to his death by making a handwritten order on the docket sheet. That single-paged docket sheet identified Bryan Saunders as Hall's lawyer. The very next business day, Judge Foster telephone Saunders asked him if he would agree to represent Mickens in the capital murder of Hall. Though legally obligated to inquire into potential conflicts, the judge never told Mickens of the representation and made no inquiry into the matter.

The Lawyer

Saunders failure to act ethically has not been the subject of dispute. Because Saunders' loyalty was subject to question at the time he was appointed to represent Mickens, he had the duty to inform Mickens and the court of his prior representation of Hall and to give Mickens the opportunity to decline his services. See Va.Code Prof'l Responsibility DR 5-105(A) (Michie 1992). Saunders could not continue to represent Mickens unless he obtained a waiver from Mickens.

Saunders, however, said nothing to Mickens. Saunders went on to represent Mickens at the guilt phase of his murder trial and at sentencing. He represented Mickens on appeal and, after other lawyers obtained a remand from the United States Supreme Court, Saunders continued to represent Mickens at a second sentencing trial. According to Saunders and his co-counsel, he was responsible for about ninety percent of the workload on the case. Saunders never disclosed to co-counsel that he had represented Hall.

The Virginia Code of Professional Responsibility (as it was called at the time of Mickens' trial) provided that a lawyer had the duty to "explain any circumstances that might cause a client to question his undivided loyalty." Va.Code Prof'l Responsibility EC 5-19 (Michie 1992). Saunders' representation of the murder victim at the time of the murder is undoubtedly a circumstance "that might cause a client to question his undivided loyalty." Regardless of whether Saunders believed he could represent Mickens, he was ethically required to "defer to a client who [held] the contrary belief [by] withdraw [ing] from representation of that client." Va.Code Prof'l Responsibility EC 5-19 (Michie 1992).

Indeed, Saunders acknowledged under oath that if he was on trial for capital murder, he would want to know whether or not his lawyer represented the person he was alleged to have killed..

Once Saunders proceeded with the representation of Mickens in these circumstances, he was potentially subject to disciplinary proceedings, which gave rise to an interest in protecting his professional reputation by preventing his representation of Hall from coming to light. This interest diverged from Mickens' interest in learning about the earlier representation and in making sure he (Mickens) received conflict-free representation. Saunders was thus caught in an actual conflict.

Saunders faced another ethical dilemma which prohibited him from investigating his former client Hall, and using the confidential information he learned from the young man, without violating the ethical duties that he (Saunders) owed to Hall, his former client.1 Saunders had a duty to preserve Hall's secrets and confidences even though his employment as Hall's lawyer had ended. See Va.Code Prof'l Responsibility DR 4-101, EC 4-6 (Michie 1992); see Swidler & Berlin v. United States, 524 U.S. 399, 410-11 (1998). Saunders also had a duty to zealously represent Mickens. See Va.Code Prof'l Responsibility DR 7-101 (Michie 1992). In representing Mickens, Saunders could not pull his punches in order to protect what he knew about Hall. Saunders' interest (or duty) in maintaining Hall's secrets and confidences diverged from Mickens' interest in pursuing a course of action, specifically, a reasonable investigation of his case,2 creating a second clear conflict.

Saunders did not investigate (or even attempt to develop) any negative information about Hall, even though circumstances of this crime (murder and sodomy) suggested that some consideration had to be given to investigating the character and background of the victim. There were no witnesses to Hall's murder, which occurred in a secluded area that was a "known gathering place for homosexuals."

Saunders knew from his representation of Hall that Hall had some tendency to violence or aggressiveness, that he had previously carried a weapon with him when in questionable areas of the city, and that for some reason he was no longer living at home, despite his young age. This information, together with the notable location of Hall's murder, at least suggested an investigation into whether consent to the sodomy and self-defense to the murder might be defenses or statutory mitigators. In other words, the negative information Saunders had about Hall had the potential to lead to information about the circumstances of the crime.

A lawyer has an initial duty to investigate and to make his own independent appraisal of the case. See ABA Standards for Criminal Justice Standard 4-4.1(a). Of course, obvious avenues of investigation do not always lead to relevant evidence or viable defenses. The point is that reasonable areas of investigation must be considered and pursued. Because of Saunders' duty to protect Hall's secrets and confidences, he could not ethically even consider an investigation that was suggested by the circumstances.

Saunders' duty to conduct a reasonable investigation created still another conflicting interest because there was a good chance that someone from the victim's family (perhaps Hall's mother) would testify during the penalty phase. Again, there is a duty to "explore all avenues leading to facts relevant to ... the penalty." ABA Standards for Criminal Justice Standard 4-4.1(a). Surely this would require defense counsel to consider investigating the victim's relationship with key family members, especially (in this case) the victim's mother since the victim was a juvenile. Here, Saunders, while he represented Hall, learned something about his relationship with his mother and about the fact that he no longer lived at home. In particular, Saunders learned about the circumstances leading to the charge that Hall had "grabbed [his mother] by the arms and shoved her to the ground" shortly before his death. This confidential or secret information that Saunders had about some aspects of Hall's relationship with his mother also created a conflict: Saunders' interest in preserving Hall's confidences diverged from Mickens' interest in having Saunders consider an investigation into Hall's relationship with his mother.

Thus, Saunders' ethical duties prohibited him from being a zealous advocate for Mickens.

The Prosecutor

The same office that prosecuted charges against Hall prosecuted charges against Mickens. The same police department investigated and offered evidence in both cases. Hence, the prosecutor, like the state judge, had actual knowledge of the potential conflict. He also knew that the matter had not been inquired into by the court as was required, that Mickens was never informed, and that no waiver had been sought from Mickens. As the Governor is aware, previously having served as Commonwealth's Attorney, a prosecutor is a "minister of justice" and cannot merely stand by as an advocate for one side. Comment, Rules of Virginia Supreme Court, Part 6, § II, Rule 3.8. In this case, however, the Commonwealth's Attorney, violated his "specific obligations to see that the defendant is accorded procedural justice[,]" and said nothing.

BRYAN SAUNDERS' BEHAVIOR AFTER HIS UNETHICAL CONDUCT WAS QUESTIONED

When Saunders was first confronted with the fact that others now knew he was representing Hall when he was killed, Sanders claimed that he had discussed the prior representation of Hall with Judge Aundria Foster when she proposed that he be appointed to represent Mickens. Saunders told Mickens present attorney that he and the judge both stated that they each saw nothing wrong with the appointment and did not consider there to be any conflict.

Several months later when Saunders was informed that the federal judge had ordered a hearing on the matter and that the judge wanted Saunders questioned under oath., Saunders then said that he did not tell the judge. He said he remembered telling someone about it - as a joke - but could not remember what he said, when he said it, or to whom it was said.

When the Virginia Attorney General filed a sworn affidavit obtained from Saunders flatly stating, "I received no confidential information from Tim Hall that would have had any relevance to the issues in Walter Mickens' case." Based on this affidavit, the Attorney General tried to get the federal judge to deny Mickens' claim without any inquiry into the matter. Fortunately, the efforts failed. Under oath again in the federal court, Saunders again denied receiving information from Timothy Hall that would have benefited Walter Mickens. But, under pressing questioning from the federal judge, Saunders finally admitted for the first time ever, "To be honest with you, I don't remember the interview." Thus, Saunders twice offered sworn statements expressly denying that he had received information helpful to Mickens only to find out in the end that he actually had no recollection of his meeting with Timothy Hall.

Despite this track record, the federal judge wrote that he believed he was obligated by law to give "great weight" to Saunders' assertion that his representation of Mickens was not influenced by his representation of Hall. Unless Mickens could come up with evidence - almost ten years after the crime - which could overcome this "great weight," Mickens must lose.

IF MICKENS HAD BEEN ABLE TO BRING THIS MATTER TO VIRGINIA COURT HE WOULD HAVE BEEN GRANTED A NEW TRIAL

The need for the Governor to intervene is made even greater because, had Walter Mickens discovered the information about Saunders' representation of Hall at a time when he clearly could have presented his claim to a Virginia court, he would be entitled to a new trial. Unfortunately, the special death penalty equivalent of "the 21-day rule" - which restricts the ability of Virginia courts to correct injustice if evidence of the injustice is presented to them more than 60 days after denial of certiorari review - disables the Virginia courts from granting Mickens the relief to which he is entitled under Virginia law because procedural technicalities prevent the Virginia courts from correcting the injustice.

The Governor, of course, has no restrictions, and can ensure that the substance of Virginia law is met in this case.

Under Virginia law, "where a trial court fails to initiate an inquiry when it knows or reasonably should know that a particular conflict may exist it is presumed that the conflict resulted in ineffective assistance of counsel." Dowell v. Commonwealth, 3 Va. App. 555, 561-562, 351 S.E.2d 915, 918 (1987); see also Carter v. Commonwealth, 11 Va. App. 569, 574, 400 S.E.2d 540, ___ (1991) ("where a trial court fails to initiate an inquiry when it knows or reasonably should know that a particular conflict may exist it is presumed that the conflict resulted in ineffective assistance of counsel.")

In Dowell, as in Mickens' case, the Commonwealth contended that no relief was required because the record was "insufficient to show that an actual conflict of interest adversely affected the trial counsel's performance." Id. The Virginia courts rejected this argument.3 Because there is no doubt that the trial court failed to inquire into circumstances where a particular conflict "may exist," there can be no doubt that, if Mickens were allowed to bring his claim into the Virginia court, he would be ordered a new trial.

THE COMMONWEALTH'S EVIDENCE OF TIMOTHY HALL'S MURDERER

The Commonwealth's evidence that Mickens murdered Hall was entirely circumstantial. Evidence that Hall was murdered in the course of attempted forcible sodomy was entirely inferential. Moreover, the evidence presented at trial was never subjected to appropriate scrutiny. The evidence the Commonwealth claimed proved Mickens' guilt beyond a reasonable doubt is as follows:

1. Shoes - When Michael Jacobs was arrested for charges not related to Hall's death, he was wearing shoes identified as those worn by Timothy Hall near the time of his death. Jacobs testified at trial that he bought the shoes from Mickens for $5.00 the same week Hall's body was found. What jurors never knew was the fact that Jacobs first testified under oath at the preliminary hearing that he had bought the shoes from Mickens on a date prior to Hall's death! He simply changed his "sworn" testimony by the time the trial came around to fit the prosecutor's dates. Saunders never questioned Jacobs about this sudden change in his testimony. There was no other evidence linking Mickens and the shoes.

2. Hair - One of the Commonwealth's expert witnesses testified that pubic hair removed from Hall's buttocks were from an African-American and were alike in "all identifiable microscopic characteristics" to the pubic hair sample taken from Mickens. But hair evidence, of course, produces extremely imprecise results and can only exclude a person and can never establish identity.

3. Comments to Police - When police told Mickens that they knew Mickens had killed Hall, Mickens denied it and stated, "You didn't find any knife on me, did you?" The police detective who handed Mickens the warrants charging him with killing, abducting and sodomizing Hall, claimed that Mickens said, "I accept the warrants that means I'm guilty, don't it?" Neither of these statements can uphold Mickens' guilty verdict.

Mickens' reference to the knife is insignificant because the crime was heavily reported in the media including accounts stating that "sources say Hall died of multiple stab wounds." Also, the Commonwealth maintained that Hall was not killed with a knife; he was killed with some sharp "tool" which produced parallel wounds.

In addition, the "accept-the-warrants" statement holds no water as an admission because Mickens not only was never found guilty of the charges supposedly thrown before him, but the Commonwealth did not even take him to trial on them! The warrant claimed that Mickens had murdered Hall in the course of abduction, robbery, and sodomy. The sodomy charge was dropped by the prosecutor, and a judge ordered that the robbery and abduction charges dismissed for lack of evidence.

4. Jailhouse Snitch - The Commonwealth also presented the testimony of Tyrone Brister, who had been confined in a holding cell at the courthouse with Mickens on March 26, 1993, about a year after Hall's murder. Brister testified that he had a single 5-10 minute conversation with Mickens while the two were in a holding cell outside the courtroom. Brister said he asked Mickens why he was in the holding cell and Mickens answered, "They said I stabbed somebody 140 something times in the head," then lowered his voice and said, "which I did." Mickens also told Brister that "they" said he also sodomized the victim and stole his sneakers.

Again, Mickens lowered his voice and said, "which I did." Of course, to those experienced in the legal profession this kind of "snitch" testimony is so inherently suspect that many States require that jurors be told to eye the testimony cautiously. No cautionary instruction was given to jurors in this case. Mickens did not make this statement and, moreover, the statement is clearly contradicted by the evidence. As mentioned above, even the Commonwealth conceded that there was no evidence whatsoever of forcible sodomy. The inherently suspect character of Brister's testimony is driven home by the fact the Commonwealth did not even charge Mickens with behavior which Brister maintains Mickens offered to confess in a fleeting conversation with a total stranger.

5. Genetic Material - An affidavit submitted by the Commonwealth in the habeas corpus proceedings in this case stated that the DNA evidence in this case "was [not] likely to be considered as decisive by the jury." The Commonwealth used this affidavit to defeat Mickens' efforts to get a DNA expert appointed to his case.4

EVIDENCE NEVER PROVIDED TO JURORS OF MICKENS INNOCENCE

Saunders claimed to have looked at police files made available by the prosecutor. These files contained several pieces of evidence indicating that someone other Mickens killed Tim Hall. None of this evidence was presented to the jurors. In fact, Saunders never investigated this exculpatory information. The Governor is the only person who will have an opportunity to consider the evidence.

Bernard Gordon (the father of the family with whom Hall lived at the time of his death) told the police that "Tim [Hall] had been ducking three guys [he] owed money to for about three months. They came to the apartment at least once." A newspaper also reported this story from another source.

Alicia Thrash and Charity Fleming, two friends of Tim Hall's, reported to police that Hall was being harassed by a prostitute on the night of the murder. Evidence of that sort also might have allowed counsel to argue the existence of another perpetrator. After Hall was murdered, Thrash spoke to "Stephanie," Hall's ex-girlfriend. Stephanie told Thrash that she had talked to Hall on the night of his death. Thrash provided the following statement to the police:

Everything got real messed up cause when we went to the wake [for Hall], this girl named Stephanie said Timmy [Hall] had called her Saturday night, all scared and nervous, talking about this prostitute was harassing him, saying all kinds of stuff, that he was harassing him over something or other, & then she told him to come pick her up, and he said that he was at the end of 29th Street, that is where he said by the construction office, that's where he was at. & she said he called her & told her to come pick him up like that.

Thrash also reported to police that her boyfriend, Rob Porter, saw two black males on Saturday night coming from the area where Tim Hall's body was found. Charity Fleming's statement to the police reported that she talked to Tim Hall on Sunday (rather than Saturday) around 6-7 and wanted her or Stephanie (Ex-girlfriend) to pick him up at 29th St because of problems he was having with a girl he picked up on Washington Ave. [a] couple of days before. (This evidence was especially important because the Commonwealth admitted that it could not determine the precise date on which Hall was killed and Fleming's assertion that Hall was still alive on Sunday could have helped to undermine the relevance of the testimony of Vincent West and Bruce Mitchell that Mickens was lurking around the area where Hall was murdered on Saturday night.)

Phyllis Alford, who operated the corner grocery, told police that she thought the older brother who lived at the house where Tim Hall stayed had committed the crime. She said that she knew that the older brother had been in a juvenile detention home previously.

Jurors also never heard evidence suggesting that Timothy Hall's homicide was not capital murder. A capital murder conviction could only be attained if it was proven beyond a reasonable doubt that an intentional murder was committed in the course of an attempted forcible sodomy. In order to prove this, the evidence must show that it was the intention of the killer to engage in sodomy with the potential victim against his will and without his consent and that the murder took place during the commission of the attempted forcible sodomy.

This showing is quite distinct from the act of murder. No one would suggest that there was evidence indicating that Timothy Hall "consented" to be murdered; however, if there was evidence suggesting that Timothy Hall may have consented to the acts which the Commonwealth believed suggested sodomy, it could raise a reasonable doubt whether the prosecution could prove that the killer was attempting forcible sodomy -- even though there was no suggestion that the murder itself involved consent at all.

This kind of evidentiary analysis resulted in dismissal of the initial capital murder charges made against Mickens. The prosecution first charged Mickens with capital murder for an intentional killing in the course of abduction, robbery, and forcible sodomy. When the judge heard the evidence at the preliminary hearing and saw the topography of the crime scene (which required anyone who arrived at the scene to climb down a steep slope covered with brush and trees, and up another rocky embankment), the court dismissed both charges. When the prosecutor realized that there was no evidence whatsoever of forcible sodomy, he dropped those charges as well.

Had the judge been provided even an inkling of the evidence available indicating that the encounter between Hall and his eventual killer was consensual these charges too could have been eliminated and the trial would have proceeded as a first degree murder. If Mickens were convicted of this charge, the maximum sentence he could receive would have been life without possibility of parole.

Evidence not provided to jurors and showing that there was a reasonable doubt whether there was an attempted forcible sodomy includes the following:

1. FBI Experts - Experts from the Federal Bureau of Investigation analyzed the crime scene and concluded that there was evidence that Timothy Hall either "possibly knew the killer or didn't feel threatened when approach was made[.]"

2. Prostitute - A friend of Tim Hall's was reported in the newspaper as saying that she thought "maybe he was hustling some guys [and] just picked the wrong guy," adding that she thought Hall was having sex with men for money. "He would say he was broke, then he would come back and have money. And he started having new things, like new shoes." She said that "[h]e was ashamed of it but desperate and needed it to get by."

3. Clothing - Timothy Hall's body was found nude from the waist down, except for socks. Hall's shoes were off and his pants were found on the ground off the mattress. There was no blood detected on the pants, clearly indicating that his shoes and pants were removed and that he turned on his stomach before any injury occurred.

CONCLUSION

Mickens' conviction and death sentence were obtained in a trial at which the Commonwealth arranged for him to be represented by the victim's lawyer. The Commonwealth's system for obtaining death sentences must do better than this. There will be no doubt that Mickens' attorney has acted unethically in this matter. The failings of the judge and prosecutor are also beyond dispute. Mickens' execution should not be allowed to go forward in the face of such breaches of ethics and duty. The Governor will reveal his commitment to ensuring fairness in cases of exceptional neglect, and will honor the Commonwealth's sense of fairness and justice by providing that Mickens' execution not take place.

The Governor should not stand idly by while Mickens is executed because his lawyer's failed ethics and procedural technicalities combine to prohibit the Virginia courts from enforcing the law. Mickens asks that the Governor grant him a pardon conditioned on Mickens' agreement not to assert his right to "double jeopardy" thus allowing the Commonwealth, should it so choose, to make him face trial with an non-conflicted lawyer as an advocate, or provide such other relief as the Governor deems appropriate.

1. While representing Hall, Saunders learned the following information: (a) Hall had been charged with carrying a concealed weapon at the intersection of 27th Street and Marshall in Newport News; (b) Hall's mother had pressed charges against him for assault ...; and (c) Hall was not living with his mother at the time of his death. Saunders met with Hall for fifteen to thirty minutes and they discussed the circumstances surrounding each of the charged crimes. Saunders obtained confidential information from Hall and learned "confidences" and "secrets" in his representation of Hall that he (Saunders) was bound not to reveal. See Va.Code Prof'l Responsibility DR 4-101 (Michie 1992). Moreover, under Virginia law even the charges against Hall were confidential because they were in Hall’s juvenile court records which cannot be opened to those outside the juvenile court system without a court order. See Va. Stat. Ann. § 16.1-305.

2. Juxtaposed to Saunders' duty to remain loyal to Hall by maintaining his confidences and secrets was a duty he owed to his new client, Mickens. As illustrated by the American Bar Association's standards, Saunders had the duty to conduct a thorough pretrial investigation for Mickens: "Defense counsel should conduct a prompt investigation of the circumstances of the case and explore all avenues leading to facts relevant to the merits of the case and the penalty in the event of conviction." ABA Standards for Criminal Justice Standard 4-4.1(a) (3d ed.1993). The Supreme Court has recognized the ABA standards as "guides to determining what is reasonable."

3. The Dowell Court also found that the particular conflict in the case had an adverse affect but offered this as an Additional basis for relief, not as a pre-requisite to the relief granted.

4. The Commonwealth subjected a semen stain found on the mattress under Tim Hall’s body to DNA analysis (RFLP type). Only two of the four probes tested showed a match; the other two were inconclusive. Mickens' DNA pattern was consistent with the two probes, as is the pattern of every one in 27,000 Caucasians, one in 6,000 African-Americans, and one in 2,000 Hispanics. The tests could not determine the ethnicity of the contributor and could not reveal how long the semen had been on the mattress. (The mattress lay beneath the cover of an overhanging parking deck protected from the elements.) Testing (PCR type) of cigarette butts found underneath the parking lot revealed the most common pattern in the human population. Both Hall and Mickens shared this pattern.

Mickens Waits at Death House for Second Time

By Troy Graham - The Daily Press

June 12, 2002

NEWPORT NEWS -- Walter Mickens has been to the death house before. Last year, the Newport News man spent several days there, awaiting his execution for stabbing a 17-year-old boy to death in 1992. The U.S. Supreme Court stayed the execution the day before he was scheduled to die by lethal injection. Now, with all of his appeals exhausted, Mickens is back at the Greensville Correctional Center in Jarratt, where the state houses its death chamber. Mickens, 47, is scheduled to die there by lethal injection at 9 p.m. tonight.

His only hope for another reprieve lies with Gov. Mark Warner, who is still considering a clemency plea that could commute Mickens' sentence to life in prison. The governor's office did not know when Warner would make a decision on the plea, the first one he has had to weigh since his election. Traditionally, governors decide within hours of the execution. Warner now must consider new information that has come to light this week about a jailhouse snitch. Attorneys for Mickens tracked down Tyrone Brister, a man who shared a cell with Mickens before his 1993 trial. Brister testified at trial that Mickens confessed to killing 17-year-old Timothy Hall and 19-year-old Jonathan Woskobunik.

Mickens was eventually convicted and sentenced to death for killing Hall. Prosecutors then dropped the Woskobunik murder charges for a lack of evidence. Brister now says a police officer put him in a cell with Mickens with instructions to extract a confession. In a signed affidavit, Brister said Mickens "seemed crazy or sick in the head," but the officer ignored his concerns about Mickens' mental state. He could not remember the name of the officer.

Although Brister has not changed the substance of what he says Mickens told him, attorneys for Mickens say the defense was never told a police officer put Brister in the cell on purpose. They also say police never related Brister's account of a crazed and rambling Mickens. "The way it was presented at trial, it was like it was Walter Mickens just talking to him," said Robert Wagner, one of Mickens' attorneys. "It just further poisons the well. What you have is further evidence of unethical conduct."

But Newport News Commonwealth's Attorney Howard Gwynn, who prosecuted the case against Mickens, said Brister called him at home the night before the trial was set to begin. He said Brister told him he didn't take Mickens seriously until he heard some people talking about the case at a grocery store. Gwynn said he had Brister meet with a detective, who checked out his story. He said Brister never mentioned that a police officer purposely put him in the cell, and Brister never related any concerns about Mickens' mental state. "They're grasping at straws," Gwynn said of Mickens' attorneys. "Even if you exclude Brister's testimony, the evidence would have been sufficient to convict Mickens beyond a reasonable doubt."

Wagner added the Brister information to the clemency plea this week. The bulk of the plea focuses on the fact that one of Mickens' trial attorneys, Bryan L. Saunders, was representing Hall at the time of the murder. Saunders never told Mickens he had represented Hall. Wagner has argued repeatedly that this was an ethical violation that deprived Mickens of a fair trial. He says Saunders didn't investigate negative information about Hall that could have freed Mickens or spared him the death penalty because of his duty to protect his former client. The Supreme Court stayed Mickens' execution last April to consider those issues. In a divided 5-4 decision earlier this year, the court upheld the conviction, saying Saunders' conflict did not have an "adverse effect" on the trial. That decision paved the way for tonight's execution.

The state Department of Corrections would not say when Mickens was moved from death row at Sussex I prison in Waverly, to the so-called death house at Greensville. Typically, inmates are moved four days before the execution. Mickens is being held in a separate building at Greensville that houses three cells adjacent to the death chamber, where he could be executed by lethal injection. Unless the governor intervenes, three separate chemicals will be pumped into his veins at 9 p.m. The first stops brain activity, the second stops his breathing and the third stops his heart.

Mickens, who has refused to be interviewed, will be allowed to visit with family members until 3 p.m. today. Attorneys and spiritual advisors are allowed to visit until two to three hours before the execution. He will be allowed to shower and choose a last meal from the prison's regular menu.

A member of the clergy may meet with Mickens 30 minutes before the execution and accompany him to the death chamber. Wagner said he did not know if Mickens was meeting with a spiritual advisor. "We're hoping for the best," he said. "And preparing for the worst."

Virginia Governor Denies Clemency Request

Las Vegas Sun

June 12, 2002

RICHMOND, Va.- Gov. Mark Warner declined Wednesday to intervene on behalf of a death row inmate who claimed he was entitled to a new trial because his lawyer once represented the victim.

Walter Mickens Jr., 47, had filed a clemency request with Warner last week, seeking to halt his execution Wednesday night. He was to be put to death by injection at the state prison in Jarratt. Mickens was convicted of stabbing 17-year-old Timothy Jason Hall 143 times, robbing him and attempting to sodomize him in a seedy warehouse district in Newport News in 1992. DNA tests on semen found at the scene connected Mickens to the crime, and he allegedly confessed to an investigator and fellow inmate.

The American Civil Liberties Union, Amnesty International, the former head of the American Bar Association's ethics committee and a Virginia congressman had written the governor on Mickens' behalf. They contended Mickens deserved clemency - or even a new trial - because his lawyer had been previously appointed to represent Hall and never told Mickens. The Inter-American Commission on Human Rights, a branch of the Organization of American States, also sent a letter to Warner via the U.S. State Department asking for a stay until it could review the facts in the case.

The U.S. Supreme Court blocked Mickens' execution in April 2001 and ruled 5-4 a month later that there was no provable conflict of interest on the part of Mickens' court-appointed lawyer.

The lawyer, Bryan Saunders, had appeared in court only days before Mickens' arrest to represent Hall on an assault and battery charge in an unrelated case. Hall was accused of shoving his mother during an argument and carrying a concealed knife in his car. Saunders has said that he had no conflict of interest and that he believed his duty to Hall ended when he learned his client was dead.

Criminal Justice Legal Foundation

BRIEF AMICUS CURIAE - UNITED STATES SUPREME COURT - MICKENS V. TAYLOR.

SUMMARY OF FACTS AND CASE

Nine years ago, Walter Mickens murdered Timothy Hall, who was then 17, by stabbing him to death. There were "143 separate 'sharp force injuries' to the victim's body." Mickens v. Commonwealth, 247 Va. 395, 399, 442 S. E. 2d 678, 682 (1994).

Hall was last seen alive on March 28, 1992, and his body was discovered March 30, 1992. Id., at 398-399, 442 S. E. 2d, at 681-682. Although he denied committing the crime at trial, J. A. 45, Mickens' identity as the killer was established by, among other evidence, his knowledge the victim had been stabbed, his express statement to the police he was guilty, his possession and sale of the victim's tennis shoes, and DNA analysis of semen from the scene. The DNA evidence, while not conclusive by itself, was powerfully corroborating in light of the other evidence. See 247 Va., at 400-401, 442 S. E. 2d, at 682.

Shortly before his death, Hall was the subject of juvenile court petitions as a result of a scuffle with his mother and his possession of a bread knife wrapped in newspaper. J. A. 391-394. Attorney Bryan Saunders was appointed to represent him. J. A. 396. On April 3, 1992, the juvenile case was dismissed due to Hall's death. J. A. 390.

On April 1, 1992, two days after discovery of the body, the local newspaper printed a story about Timothy Hall. J. A. 397-398 (copy of article); J. A. 168 (date). The article discusses the rumors that Hall was a male prostitute, the fact he lived at a friend's house rather than with his mother, the incident with his mother and the resulting charges, and the concealed weapon allegation, erroneously referring to the latter as involving a gun rather than a knife. J. A. 397-398.

Attorney Saunders was appointed to represent Mickens, along with co-counsel Warren Keeling. "Saunders never told Mickens or Keeling that he had represented Hall . . . ." Mickens v. Taylor, 240 F. 3d 348, 354 (CA4 2001) (en banc). Keeling was primarily responsible for investigating the sentencing-phase issues. J. A. 172-173. He was aware of the newspaper article. J. A. 168.

In the penalty phase, the prosecution introduced Mickens' extensive criminal record, including two convictions of sodomy and four other felonies. Two of Mickens' surviving victims testified. Charles Siron testified that Mickens forcibly sodomized him in the city jail while holding a razor blade to his throat. Elementary school teacher Ruby Bunn testified that Mickens robbed her in her classroom by threatening a small child with a knife. 247 Va., at 410, 442 S. E. 2d, at 688.

Mickens was sentenced to death, and the Virginia Supreme Court initially affirmed. Id., at 412, 442 S. E. 2d, at 689. This Court vacated and remanded "for further consideration in light ofSimmons v. South Carolina, 512 U. S. 154 (1994)." Mickens v. Virginia, 513 U. S. 922 (1994). The Virginia Supreme Court remanded for a second penalty trial. Mickens v. Commonwealth, 249 Va. 423, 457 S. E. 2d 9 (1995). The second jury reached the same conclusion, and its verdict was affirmed. Mickens v. Commonwealth, 252 Va. 315, 478 S. E. 2d 302 (1996). Mickens filed a state habeas petition, prepared by new counsel. J. A. 103-125, 133. The Virginia Supreme Court denied it. J. A. 126.

On federal habeas corpus, Mickens raised the conflict issue for the first time. The District Court found he had cause for the default and that "the prejudice inquiry incorporates the test for the underlying claim." Mickens v. Greene, 74 F. Supp. 2d 586, 602 (DC ED Va. 1999).

The District Court held an evidentiary hearing, including testimony by both defense counsel. J. A. 155-253. The court found "that Saunders did not learn any confidential information from Hall that was relevant to Mickens' defense either on the merits or at sentencing." 74 F. Supp. 2d, at 606 (emphasis in original), J. A. 291. Further, "the Court credits Saunders' testimony that he did not refrain from taking any actions for Mickens because of his earlier representation of Hall." Id., at 612, J. A. 303. The District Court denied the conflict claim, finding neither actual conflict, adverse effect, nor prejudice to excuse the default. Id., at 615, J. A. 309.

On Mickens' related ineffective assistance of counsel claim, the District Court held it was both defaulted and meritless. "In light of the facts facing counsel . . . , counsel reasonably chose not to pursue a consent defense. Furthermore, the lack of mitigating evidence is attributable to the absence of such evidence rather than the failings of counsel." Id., at 598, n. 6, J. A. 275.

A divided panel of the Court of Appeals reversed, finding that under Wood v. Georgia, 450 U. S. 261 (1981), no showing of an adverse effect is required in these circumstances. Mickens v. Taylor, 227 F. 3d 203, 210-211 (CA4 2000), J. A. 327-329. The en banc court disagreed, 240 F. 3d, at 360, J. A. 371-372, and reinstated the District Court decision. This Court granted Mickens' petition for certiorari on April 16, 2001.

SUMMARY OF ARGUMENT

Nix v. Whiteside establishes that the boundaries of the Sixth Amendment right to unconflicted counsel are not coextensive with professional norms. Instead, those norms mark an outer limit. A set of facts that does not constitute a conflict under professional norms does not violate the Sixth Amendment, but the converse is not necessarily true.

Duty to former clients is much more limited than duty to present clients under those norms. The continuing duty is to preserve confidential information, which is defined to exclude information that has since become public. There was no conflict in this case.

Teague v. Lane applies to this case and is fairly included in the question presented. Caspari v. Bohlen holds that a certiorari petitioner preserves the Teague issue by arguing it in the body of the certiorari petition. Argument in the body of the brief in opposition is therefore sufficient for the certiorari respondent.

Surveying the legal landscape, Cuyler v. Sullivan, Strickland v. Washington, Burger v. Kemp, and Burden v. Zant establish that an adverse effect must be shown by the habeas petitioner in the circumstances of the present case. Wood v. Georgia was a decision on an unargued, unbriefed point, which merely omitted discussion of an element not separately disputable on the facts of the case.

Where, as here, pertinent Supreme Court precedents state a rule which, on its face, applies to the present case, an argument that nuances of other cases create an unstated exception is per se a proposal for a "new rule" within the meaning of Teague.