EXECUTED JUNE 2002 

BY FAX: (804) 371-6351

Governor Mark R. Warner
State Capitol, 3^rd floor
Richmond, Virginia 23219

Re: Walter Mickens Jr.

Dear Governor Warner:

On behalf of the American Civil Liberties Union, we urge you to grant clemency to Walter Mickens.  In the alternative we urge to stay this execution and permit Mr. Mickens' to be retried with the assistance of a competent lawyer who is prepared to mount a reasonable defense. Regardless of whether you support or oppose the death penalty, no fair-minded person should have any confidence in the process that produced this death sentence.

Despite the fact, that court officials knew, or should have known of a clear violation of Mr. Mickens' right to fair and impartial counsel, he was never informed that his lawyer, Brian Saunders, had represented the alleged.

Even more disturbing, Brian Saunders did not inform his client or his co-counsel of this critical information. Had he revealed these facts, as he was required to do by Virginia law, he would not have been permitted to continue in his representation without his client's waiver. Consistent with this apparent conflict, Mr. Saunders never adequately investigated or presented key evidence to the jury that might have spared Mr. Mickens the death sentence if not the conviction.

Specifically, to be a capital crime, Walter Mickens had to be convicted of murder during the course of forced sodomy. Despite Mr. Saunders' knowledge, through his prior representation of the victim, of facts that might have undermined this allegation against his client, he did not investigate or develop key evidence. Critical to the question of whether the victim, Timothy Hall, was forcibly sodomized was that he had reportedly been engaged in a pattern of sex for money and that he was being harassed by other possible perpetrators of the crime. Yet this information was not presented to the jury.

All of these facts could have raised reasonable doubt as to Walter Mickens' guilt or at least, given these uncertainties, spared him a death sentence.

We understand that despite serious questions about the fairness of his trial, the Supreme Court has refused to grant Mr. Mickens' relief.  However, the Supreme Court's inquiry was far narrower than what is now before you as Governor. The Court's inquiry was essentially limited to whether given the necessary balance between state court prerogatives and Constitutional imperatives, this case should tip the scale in favor of federal intervention.  Sadly, the Court ruled that it did not.

The question before you now as Governor is different: whether in the final analysis, the citizens of the Commonwealth of Virginia should be satisfied that the process that gives the State the power and authority to kill was ultimately fair. In our judgment, this case cannot and should not be deemed to meet that standard.

Finally, the Commonwealth of Virginia is not without options to vindicate its legitimate interest in holding wrong doers accountable and punishing them for the harm that they have caused. The Commonwealth could in this case, commute Walter Mickens' death sentence to life in prison or better retry this case giving him a competent and conflict-free lawyer.

On the other hand, Walter Mickens is without options. He relied to his detriment on a court system that was charged with the responsibility of dispensing fair and impartial justice and a lawyer who was sworn to zealously defend his client's life with undivided loyalty.  We urge you in the strongest possible terms to prevent this execution from going forward. If the Commonwealth exercises its proceeds with this execution on June 12, it would kill not only Mr. Mickens, but fairness as well.

Respectfully submitted,

Diann Rust-Tierney
ACLU Capital Punishment Project