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
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
Mickens had been convicted in 1974 of robbery and sodomy, imprisoned,
paroled, then convicted again in 1980 of robbery and sodomy.
Mickens chose a last meal from the prison's regular menu, which
included baked chicken, rice and carrots.
"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
March 28, 1992, Timothy Hall, age seventeen, was
living with his fourteen-year-old friend, Raheem
Gordon, and Gordon's father in an apartment at 28th
and Washington Streets in Newport News, Virginia.
Between 7:00 and 8:00 p.m. that evening, Hall gave
young Gordon a ride to the nearby Towers apartment
building, where Gordon attended a party. Hall had
intended to go to the same party later, but he never
appeared. One item about Hall's dress that evening
becomes important later: he was wearing a pair of
Gordon's Nike brand "Cross Trainer" athletic shoes.
about 8:00 p.m. Vincent West and Bruce Mitchell, who
were attending the Towers party, left and went to a
nearby convenience store. After buying a few items
and leaving the store, West and Mitchell went to a
park next to the Towers building.
While sitting in the park, West and Mitchell saw a
man with a bicycle hiding in some bushes and looking
at them. The man was later identified as the
petitioner, Walter Mickens.
Less than forty hours later, at about 12:30 p.m. on
March 30, 1992, Chris Basford was walking along the
James River in Newport News when he saw a body lying
face down on a mattress beneath an abandoned
construction company building. The body's legs were
spread apart, and it was nude from the waist down,
except for socks.
body was identified as that of Timothy Hall. Pubic
hairs were recovered from the buttocks of Hall's
body. There were bloody "transfer" stains on the
outsides of his thighs, and there was a white liquid
substance close to his anus.
autopsy by the medical examiner revealed that Hall
had been subjected to 143 separate "sharp force
injuries." The examiner concluded that Hall had bled
to death and that twenty-five of the wounds were
fatal. The examiner opined that the fatal wounds may
not have caused instant death and that Hall could
have lived as long as thirty to forty minutes after
infliction of the last wound.
On the evening of
April 4, 1992 (five days after Hall's body was found),
the Newport News police, Officer D. A. Seals and
Detective Dallas Mitchell, responded to a complaint
that an African-American male, who was riding a
bicycle, had assaulted a juvenile.
Seals and Mitchell
soon found Mickens riding a bicycle in the parking
area at the abandoned construction company building.
When Seals displayed his badge and approached
Mickens, Mickens fled on his bicycle. He did not get
far. Seals and Mitchell tracked Mickens down as he
was being detained by other officers.
arrested at 7:00 p.m. on the charges involving the
juvenile. After Mickens was given his Miranda
warnings, he agreed to talk. Without telling Mickens
how Hall had been murdered, Detective Mitchell told
Mickens that he knew Mickens had killed Hall.
Mickens denied any involvement in Hall's murder, but
said, "You didn't find any knife on me, did you?"
morning, the police obtained warrants charging
Mickens with the murder and attempted sodomy of
Hall. When Detective Seals handed Mickens the
warrants, Mickens said,"I accept the warrants, I
accept the charges." Seals asked Mickens what he
meant by that, and Mickens responded, "Mother f___r,
if I told you I accept the warrants that means I'm
guilty, don't it?"
On April 7, 1992,
the police found Michael Jacobs wearing the Nike
brand "Cross Trainer" shoes that Hall had been
wearing when Raheem Gordon had last seen Hall alive.
Jacobs testified that he had bought the shoes from
Mickens for $5.00 the previous week (the week Hall's
body was found).
offered the following evidence through expert
witnesses. The pubic hairs 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, who is African-American. Tissue was
attached at the roots of the hairs, indicating that
the hairs had been forcibly removed, possibly by the
rubbing of genitals against Hall's buttocks. The
stain on the mattress cover was of human sperm. DNA
analysis (RFLP type) revealed that Hall could not
have produced the sperm. Mickens' DNA pattern
matched the DNA pattern in the sperm, however. The
approximate percentages of the population that could
have deposited the sperm were one in 27,000
Caucasians, one in 6,000 African-Americans, and one
in 2,000 Hispanics.
On March 26, 1993,
about a year after Hall's murder, Mickens was in a
holding cell at the courthouse with a man named
Tyrone Brister. Brister testified about his
encounter with Mickens. Brister asked Mickens why he
was there, and Mickens answered,"They said I stabbed
somebody 140 something times in the head." Mickens
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."
The jury found
Mickens guilty of the capital murder of Hall,
specifically, murder during the commission of, or
following, an attempted forcible sodomy. Mickens was
sentenced to death, and the Supreme Court of
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.
found that the trial judge had erred by not instructing the jury
that if sentenced to life imprisonment, Mickens was not eligible for
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."
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.
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
After a thorough review of the Petition for Clemency and the
judicial opinions regarding this case, I decline to intervene.”
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
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.
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
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."
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
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
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
Walter Mickens Jr.
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
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
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
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
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
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
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
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
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
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
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
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
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
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
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
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."
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
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
May 24, 2002
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
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.
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.
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
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 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
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
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
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
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
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
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
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
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
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.
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
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
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.
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.
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
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.