190
Souter, J., dissenting
visory Committee's Notes on 1979 Amendments to Fed. Rule Crim. Proc. 44(c), 18 U. S. C. App., p. 1655.
The District Judge reviewing the federal habeas petition in this case found that the state judge who appointed Bryan Saunders to represent petitioner Mickens on a capital murder charge knew or should have known that obligations stemming from Saunders's prior representation of the victim, Timothy Hall, potentially conflicted with duties entailed by defending Mickens.1 Mickens v. Greene, 74 F. Supp. 2d 586, 613-615 (ED Va. 1999). The state judge was therefore obliged to look further into the extent of the risk and, if necessary, either secure Mickens's knowing and intelligent assumption of the risk or appoint a different lawyer. The state judge, however, did nothing to discharge her constitutional duty of care. Id., at 614. In the one case in which we have devised a remedy for such judicial dereliction, we held that the ensuing judgment of conviction must be reversed and the defendant afforded a new trial. Holloway,
1 The parties do not dispute that the appointing judge in this case knew or reasonably should have known that Saunders had represented Hall on assault and battery charges brought against him by his mother and a separate concealed-weapon charge at the time of his murder. Lodging to App. 390, 393. The name "BRYAN SAUNDERS," in large, handwritten letters, was prominently visible as the appointed lawyer on a one-page docket sheet four inches above where the judge signed her name and wrote: "Re-move from docket. Def[endant] deceased." Id., at 390. The same judge then called Saunders the next business day to ask if he would "do her a favor" and represent the only person charged with having killed the victim. App. 142. And, if that were not enough, Mickens's arrest warrants, which were apparently before the judge when she appointed Saunders, charged Mickens with the murder, " 'on or about March 30, 1992,' " of " 'Timothy Jason Hall, white male, age 17.' " Mickens v. Greene, 74 F. Supp. 2d 586, 614 (ED Va. 1999). The juvenile-court judge, whom circumstances had thrust into the unusual position of having to appoint counsel in a notorious capital case, certainly knew or had reason to know of the possibility that Saunders's 14-day representation of the murder victim, up to the start of the previous business day, may have created a risk of impairing his representation of Mickens in his upcoming murder trial.
Page: Index Previous 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 NextLast modified: October 4, 2007