WALTER MICKENS, Jr., PETITIONER v.
JOHN TAYLOR, WARDEN
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE FOURTH CIRCUIT [March 27, 2002 Justice Stevens, dissenting.
This case raises three uniquely important questions about a fundamental component of our criminal justice system–the constitutional right of a person accused of a capital offense to have the effective assistance of counsel for his defense.1 The first is whether a capital defendant’s attorney has a duty to disclose that he was representing the defendant’s alleged victim at the time of the murder. Second, is whether, assuming disclosure of the prior representation, the capital defendant has a right to refuse the appointment of the conflicted attorney. Third, is whether the trial judge, who knows or should know of such prior representation, has a duty to obtain the defendant’s consent before appointing that lawyer to represent him.Finally, “justice must satisfy the appearance of justice.” Offutt v. United States, 348 U.S. 11, 14 (1954). Setting aside Mickens’ conviction is the only remedy that can maintain public confidence in the fairness of the procedures employed in capital cases. Death is a different kind of punishment from any other that may be imposed in this country. “From the point of view of the defendant, it is different in both its severity and its finality. From the point of view of society, the action of the sovereign in taking the life of one of its citizens also differs dramatically from any other legitimate state action. It is of vital importance to the defendant and to the community that any decision to impose the death sentence be, and appear to be, based on reason rather than caprice or emotion.” Gardner v. Florida, 430 U.S. 349, 357—358 (1977). A 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.
I respectfully dissent.