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Lawyer is appointed to represent a defendant in an assault case. Defendant is murdered. The accused murderer is then represented by the lawyer who once represented the victim. If it were a hypothetical in a legal ethics class, it would sound outlandish. But it happened in Virginia in 1992, and on Monday, the U.S. Supreme Court debated whether the accused murderer deserves a new trial because his lawyer had previously represented his victim. How the Court rules could have a major impact on strictures governing lawyer conflict of interest. The justices heard the case of Mickens v. Taylor, No. 00-9285, on their first day back in their own courtroom after an anthrax scare forced them to find other quarters for a week. As he convened the Court on Monday, Chief Justice William Rehnquist made no mention of the Court’s unprecedented relocation. Federal Public Defender Robert Wagner plunged right into the story of Walter Mickens, accused in the brutal 1992 murder of 17-year-old Timothy Hall in Newport News. In an earlier criminal case, Hall was represented by court-appointed lawyer Bryan Saunders. Soon after Hall’s death, Juvenile Court Judge Aundria Foster dismissed the charges against him, after reviewing a docket sheet with Saunders’ name on it. Three days later, after Mickens was arrested and accused of the murder, the judge appointed Saunders to represent him. Neither the judge nor Saunders disclosed the prior representation to Mickens, and Mickens was convicted of forcible sodomy and murder. Saunders later said he did not think the conflict was important. His dual representation was not discovered until years later, when new lawyers reviewed Mickens’ case and filed a habeas corpus petition. “He has been deprived of his constitutional rights” because of the conflict of interest, Wagner told the justices. Newspaper accounts at the time suggested that Hall was a homosexual prostitute, a fact that could have affected the case against Mickens if their sexual contact was found to be consensual. But because of Saunders’ alleged loyalty to his first client, Wagner suggested that Saunders may not have investigated Hall’s background aggressively enough, depriving Mickens of an important line of defense at trial. “He couldn’t engage in that brainstorming,” Wagner said. Especially in a death penalty case involving a sex-related crime, Wagner asserted, “it is absolutely essential to look into the background of the victim.” But the justices struggled to define a rule or standard that would determine when a lawyer conflict is serious enough to trigger a judicial inquiry or a reversal of a conviction. A series of high court opinions from 20 years ago or more offer conflicting standards that give varying weight to whether the conflict is potential or real, and whether it had an adverse effect on the representation or the outcome of the trial. Justice Stephen Breyer speculated that in a small public defender’s office, a Mickens-like conflict might occur often when a lawyer who represented someone is later appointed to defend someone else accused of killing or harming the first defendant. Wagner said there should be no requirement to show that the conflict had an adverse effect on the case, but Justice Anthony Kennedy called that “an astounding proposition.” Kennedy said, “There are hundreds of different kinds of conflict,” not all of which should trigger a new trial. Several justices appeared sympathetic to Mickens’ plight, but none appeared ready to make it easy for defendants in general to get their convictions reversed. Assistant Virginia Attorney General Robert Harris acknowledged under questioning that “it would have been a good practice” for the judge and the lawyer to advise Mickens of the earlier representation. But Harris, joined by Bush administration lawyer Irving Gornstein, argued for a rule that would require a showing of adverse effect before a new trial is ordered.

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