Scott Greenfield and then Jamison Koehler wrote today about Keith Kamenish, a lawyer in Kentucky who's trying to hang on to an appointment to represent Ricky Kelly, the defendant in a federal death penalty case. The government wants him removed because Kelly is charged with killing Kamenish's former client LaJuante "B.B." Jackson.
Andrew Wolfson, reporting for the Louisville Courier-Journal, talked to criminal defense lawyers and legal ethics experts and they all agreed. Kamenish should get off. The potential conflict of interest is real. Kamenish owes a duty of continued loyalty to Jackson, and much as he might say he learned nothing from representing Jackson that would have any relationship to the Kelly case, he can't know that for sure. And the duty of loyalty to one trumps the desire to represent the other.
|Walter Mickens, Jr.|
But I'm not writing just to say, "Me too." Instead, I'm writing because back in 2002 the Five Who Decide said that Walter Mickens wasn't entitled to a new trial.
Perhaps I ought to explain.
In 1993, in Newport News, Virginia, a jury convicted Walter Mickens of the 1992 murder of Timothy Hall. Mickens was sentenced to be killed. Mickens didn't know at the time that his court-appointed lawyer, Bryan Saunders, was the court-appointed lawyer for that same Timothy Hall on another set of charges at the time Mickens was alleged to have murdered Hall.
Like I say, Mickens didn't know. Saunders didn't tell. The judge who appointed Saunders to represented Mickens knew but didn't tell anyone either. In fact, the information turned up mostly by chance several years later when someone in the office of the clerk of courts improperly gave lawyers representing Mickens in his federal habeas corpus action a copy of Hall's file containing that tidbit.
OK, that's the set up.
The issue is joined.
The district court judge said no harm, no foul.
If that's not clear enough, he added this.
Mickens had a constitutional right to the services of an attorney devoted solely to his interests. That right was violated. The lawyer who did represent him had a duty to disclose his prior representation of the victim to Mickens and to the trial judge. That duty was violated. When Mickens h
We will never know whether Mickens would have received the death penalty if those violations had not occurred nor precisely what effect they had on Saunders' representation of Mickens. We do know that he did not receive the kind of representation that the Constitution guarantees.
But see (this is a dissent, after all), that really doesn't matter.
Because Mickens had to prove that he was actually hurt by the denial of his rights. And of course, he can't do that because he can't get a new trial with a lawyer who doesn't have a conflict of interest where he could prove it because he can't get the new trial without first proving it which he can't do without getting the new trial which he can't get without having had a new trial which he couldn't . . . .
Aw, the hell with it. You see what I'm saying.
This isn't actually a post about Walter Mickens, or Mickens v. Taylor, or conflicts of interest.
What I want to write about is what's called the harmless error rule.
The nice way to put the rule is to say that because perfection isn't possible, nobody's entitled to a perfect trial. The Constitution guarantees only a fair trial. If a trial was imperfect in some minor, technical, meaninglessly mechanical way, who cares? Let it go.
And there is a certain logic to that. I mean, if it's clear that the imperfections (a nice word for "errors") didn't matter, what's the point in reversing and doing it over? Why bother? No harm, no foul.
You don't have to have a Mickens case, one where nobody can really tell if it mattered, to know why.
Because, see, here's the thing, and you can forget who has to prove harm or harmlessness or how strongly, because those are quibbles. Those details matter or they don't.
The courts are supposed to get it right. The cops are supposed to do it right. The prosecutors are supposed to do it right. The defense lawyers are supposed to do it right.
And if they can get away with not doing it right, if they can get away with it even some of the time, then three important and really bad things happen.
They have no incentive to do it right. I mean, why bother? Close enough for government work proves, really, to be close enough.
The poor guy at the end of the line is victimized. Maybe he doesn't suffer a result that wouldn't have happened anyway. Maybe he does. But he suffered because his rights were violated. Maybe they were clear constitutional rights. Maybe they were rights he had because some local law or rule wasn't followed (which actually is a constitutional claim, but a derivative one). But he was denied that to which he was entitled.
The system, this whole edifice we've built up, the one we claim to be the bestest and goodest in the world. It suffers. Because we've shown it's bullshit. The rules only matter some of the time. Which means, of course, that they don't matter. And that means it's all a sham.
Walter Mickens, Jr. was murdered by the good people of the state of Virginia on June 12, 2002.