Close Enough for Government Work

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.

I agree.

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.

[T]he possible conflict of interest presented by Saunders' successive representation of Hall and Mickens never ripened into an actual conflict nor was Saunders' advocacy impaired thereby.

By a 2-1 vote, a three-judge panel of the Fourth Circuit Court of Appeals reversed and ordered a new trial.  Judge Michael laid it out in the first paragraph.

In 1993 a jury in Virginia state court convicted Walter Mickens of capital murder, and he was sentenced to death. Mickens' federal habeas counsel discovered something by chance that Mickens did not know: Mickens' lead counsel in his murder case was representing the murder victim on criminal charges at the time of the victim's death. The state judge who appointed counsel for Mickens knew or should have known that the back-to-back representation presented an apparent conflict, but the judge failed to inquire. This looks bad, but there is more. Mickens' lead counsel had an actual conflict of interest as a result of his representation of the murder victim. These circumstances, taken 206together, require that Mickens be afforded a new trial under the authority of Wood v. Georgia, 450 U.S. 261, 101 S.Ct. 1097, 67 L.Ed.2d 220 (1981).

Judge Widener disagreed.  He accepted, at least for purposes of argument, the claim that Saunders had an actual conflict of interest.  But since Mickens couldn't show that he was actually hurt by the conflict of interest, it really didn't matter.  

Rather than give Mickens his new trial, the state asked the entire Fourth Circuit to hear the case.  They agreed.  This time the vote came out 7-3 on Widener's side.  No harm, no foul.

On to Washington where the 9 berobed ones churned out 5 opinions.  The tally was, as so often in these sorts of cases, 5-4.  Mickens lost.

Because, really, he didn't show that his lawyer's conflict of interest made a difference.*

It was Justice Stevens (who thinks now maybe he shouldn't have retired after all, having been only 90 at the time) who got to the heart of things.

Saunders' concealment of essential information about his prior representation of the victim was a severe lapse in his professional duty. The lawyer's duty to disclose his representation of a client related to the instant charge is not only intuitively obvious, it is as old as the profession. Consider this straightforward comment made by Justice Story in 1824:

"An attorney is bound to disclose to his client every adverse retainer, and even every prior retainer, which may affect the discretion of the latter. No man can be supposed to be indifferent to the knowledge of facts, which work directly on his interests, or bear on the freedom of his choice of counsel. When a client employs an attorney, he has a right to presume, if the latter be silent on the point, that he has no engagements, which interfere, in any degree, with his exclusive devotion to the cause confided to him; that he has no interest, which may betray his judgment, or endanger his fidelity." Williams v. Reed, 29 F. Cas. 1386, 1390 (No. 17,733) (CC Me.).

Mickens' lawyer's violation of this fundamental obligation of disclosure is indefensible. The relevance of Saunders' prior representation of Hall to the new appointment was far too important to be concealed.

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 had no counsel, the trial judge had a duty to "make a thorough inquiry and to take all steps necessary to insure the fullest protection of" his right to counsel. Von Moltke,332 18 U. S., at 722. Despite knowledge of the lawyer's prior representation, she violated that duty.

There it is.  Saunders fucked up.  The judge fucked up.  Mickens was denied his constitutional rights. And yet, Mickens lost.  

Stevens continued.

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.

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*Strictly speaking, he didn't show that the judge's failing to deal with the conflict question mattered, but that becomes a distinction without a difference.