Opinion: Fairness demands a loyal attorney

Walter Mickens Jr. is not a man worthy of much sympathy. He was convicted by a Virginia jury of murdering Timothy Hall after forceably attempting to sodomize him, and sentenced to death. But what is fair and just in our criminal justice system does not depend on the defendant's character. Mickens' Sixth Amendment right to be effectively represented by an attorney free from any conflicts of interest should be respected regardless of his alleged crime. The principle at stake is an important one: A commited attorney is typically the only line of defense an innocent person has from being wrongly convicted.

But the U.S. Supreme Court has nearly abandoned this principle. In a 5-to-4 ruling last month, the court allowed Mickens' conviction to stand even though his attorney had been representing the victim at the time of the murder and Mickens had never been told about the conflict.

There is little doubt that Mickens is guilty of killing Hall, and there is a great probability he would have been convicted no matter who represented him at trial. However, the lawyer who did, Bryan Saunders, had been representing Hall for an assault and concealed weapons charge until the young man's murder. It is hard to fathom why the victim's lawyer was also appointed to represent the accused. The court knew about the conflict -- the same judge who appointed Saunders to represent Mickens had also presided over the Hall case. But neither the judge nor Saunders bothered to inform Mickens of the potential dual loyalties of his attorney, so the defendant never had the option of objecting. On these grounds Mickens should have been given a new trial with an attorney clearly representing his interests alone.

But the majority of justices held differently. The court said that since Mickens' attorney didn't raise the conflict and object to it at trial, the accused was not automatically entitled to a new trial.

This strikes us as an odd ruling. If a conflict is serious enough to merit a new trial if it is raised by counsel, then why isn't it just as serious if the accused was not told?

In its ruling, the high court said the accused must show that the attorney's conflict of interest actually impacted the adequacy of his representation.

Justice John Paul Stevens strongly dissented. He noted that an attorney's fiduciary relationship with his client continues even after the client dies. Stevens thought this surviving duty to Hall, the victim of a brutal murder, might have precluded Saunders from "establish(ing) the necessary level of trust that should characterize the delicacy of relation between attorney and client."

Subsequent counsel for Mickens found evidence that Hall might have been a male prostitute and that the sexual encounter between them may have been consensual. This information, which wasn't introduced at Mickens trial, may have kept him from a death sentence, according to Stevens.

"Justice must satisfy the appearance of justice," wrote Stevens. "Setting aside Mickens' conviction is the only remedy that can maintain public confidence in the procedures employed in capital cases."

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