Death penalty case brings up conflict of lawyer's interest

WASHINGTON -- As part of its broadest review of the death penalty in years, the Supreme Court asked Monday whether a lawyer once appointed to represent a troubled 17-year-old boy could give his all in the courtroom for his next client -- the boy's accused killer.

Walter Mickens Jr. did not know about his lawyer's other work, and no one who did know raised an alarm. Lawyers trying to save Mickens from execution discovered the situation years later.

"Walter Mickens has been deprived of his rights ... to conflict-free counsel," lawyer Robert J. Wagner argued Monday.

The Constitution's Sixth Amendment guarantees the right to a lawyer. Like many people facing a potential death sentence, the right to a lawyer for Mickens meant he got one appointed by the state for him.

The lawyer had also been appointed months earlier to represent the victim, Timothy Hall, in an unrelated case.

Mickens was convicted and sentenced to death in the 1992 stabbing and sexual assault of Hall, whose half-nude body was found sprawled on a dirty mattress in a seedy part of Newport News, Va.

Two Supreme Court justices have expressed concern recently about the quality of legal help for people facing trial for a crime that could carry the death penalty.

"I have yet to see a death case among the dozens coming to the Supreme Court on eve-of-execution applications in which the defendant was well represented at trial," Justice Ruth Bader Ginsburg said in a speech in April.

Justice Sandra Day O'Connor suggested in July that the country may need minimum standards for lawyers who represent people facing the death penalty.

"I have to acknowledge that serious questions are being raised about whether the death penalty is being fairly administered in this country," O'Connor said.

Separately, the court will hear a case later this term that revisits the constitutional question of executing the mentally retarded. Lawyers for a mentally retarded Virginia have claimed that doing so is unconstitutionally cruel and unusual punishment.

Could set a standard

The Mickens case is unlikely to produce an expansive ruling on legal rights in capital cases, but could set a standard for what judges should do when confronted with a potential conflict of interest.

The justices focused Monday on whether a judge should have called foul, or at least held a hearing to determine if Mickens' lawyer could fully do his job.

"What should the rule be? What should we do?" Justice Stephen Breyer asked Wagner.

For Mickens, an impartial lawyer could have meant the difference between life in prison and a death sentence, his new lawyers have said. The trial lawyer, Bryan Saunders, did little or nothing to raise questions about Hall's own background, Mickens' new lawyers said.

Most importantly, Saunders did not tell the jury that Hall may have been a willing sexual partner for Mickens, or even a gay hustler, the new lawyers said. Either way, if sex was consensual, the killing would not carry a death sentence.

At trial, Mickens claimed he was not the killer. Physical evidence, including DNA, linked him to the scene, and the state presented evidence that after Hall's death, Mickens sold the shoes the victim had been wearing.

After conviction, when the jury was deciding if the crime merited a death sentence, Saunders did not challenge Hall's mother when she made an emotional statement about her son on the stand. Saunders knew that all was not well between mother and son -- he had represented Hall in an assault case brought by Hall's mother.

"The lawyer must look into the background of the victim," Wagner argued Monday.

Justice Antonin Scalia repeatedly asked Wagner how he could be sure that Saunders' role was enough to merit a new trial for Mickens.

"Why does that constitute a conflict," unless it can be proved that Mickens suffered as a result, Scalia asked. "That shows at most the potential for a conflict."

The 4th U.S. Circuit Court of Appeals rejected Mickens' argument last year, ruling 7-3 that he failed to prove the alleged conflict affected the outcome of the case.

Virginia, backed by the Bush administration, argues that the appeals court got it right.

Mickens was hours from execution when the high court stepped in to take his case last spring.