The United States Supreme Court has struck again.  In an absolutely horrible decision, the US Supreme Court ruled five to four that in a criminal case, if a defendant’s lawyer has a conflict of interest, and that becomes the grounds upon which the defendant seeks a new trial, the defendant needs to prove that the conflict of interest adversely affected the lawyer’s performance.  Well, of course it did.  This is absolutely ridiculous. 

This was a murder case, and the defendant’s attorney had previously represented the MURDER VICTIM!  Walter Mickins, Jr. was the accused in this case, and he was charged with attempted forcible sodomy and the murder of then seventeen-year-old Timothy Hall.  Mr. Mickins had no idea that his attorney had also been Mr. Hall’s lawyer, pertaining to juvenile court charges Mr. Hall had been facing at the time.  At trial, Mr. Mickins was convicted of felony murder and got the death sentence.

Writing for the majority, Justice Scalia said that the conflict does not “render the verdict unreliable.”  I am much more inclined to agree with Justice Stevens, who in his dissent, found that this “rule that allows the State to foist a murder victim’s lawyer onto his accused is not only capricious; it poisons the integrity of our adversary system of justice.”

Perhaps the most practical view of all comes from Justice Souter in his dissent, as he stated quite appropriately that “failures on the part of conflicted counsel will elude demonstration after the fact, simply because they so often consist of what did not happen.”  And how do you prove what did not happen?  How do you not find that this renders the verdict unreliable?

All that is left now for Mr. Mickins is an attempt at clemency from the Governor of the State of Virginia, which is where this took place.  I am right with Mr. Micklin’s appellate attorney, one Ed Wagner, who complains that “it’s an unconscionable system of justice that would allow this type of representation in a death penalty case to go unchecked.”

In basic terms, this comes down to a matter of fairness.  If I am representing you, and your brother allegedly shoots you, I cannot then be appointed to represent your brother.  The reasons for this should be fairly clear, as I have gotten to know you, and may well be less than pleased with the fact that your brother has decided to end your life.  Then again, I might not be so displeased; however, in no way should I be permitted to become the attorney in the murder case.  The risk of my being affected by my previous attorney role is just too strong.  This especially holds true in a death penalty murder case.  If there is ever a time to make one hundred percent certain that a lawyer does his all; this is the case.   A man is sentenced to die because of representation he received that may well have been shaky or flat-out deficient, and the United States Supreme Court sanctions it.  Unbelievable!


Charlie Unger is a criminal defense attorney in the Glendale law firm of Flanagan, Unger, Danis & Grover, and a psychotherapist at the Foothill Centre for Personal and Family Development.  Mr. Unger writes a bimonthly column on legal and psychological issues.  He can be reached at or at (818) 244-8694