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INTEREST OF AMICUS CURIAE

The Criminal Justice Legal Foundation (CJLF) ⁽¹⁾ is a non-profit California corporation organized to participate in litigation relating to the criminal justice system as it affects the public interest. CJLF seeks to bring the constitutional protections of the accused into balance with the rights of the victim and of society to rapid, efficient, and reliable determination of guilt and swift execution of punishment.

This Court's jurisprudence on attorney conflicts has established a compromise position, where a defendant who made no objection at trial is relieved of the normal burden of showing prejudice but must meet the lesser burden of showing adverse effect. Petitioner's proposed rule in this case would not only change that rule but do so retroactively on habeas corpus, thereby overturning final judgments decided in accord with current law. To overturn such judgments for defense attorney malfeasance which had no effect on the outcome would be contrary to the interests of victims and society CJLF was formed to protect.

SUMMARY OF FACTS AND CASE

Nine years ago, Walter Mickens murdered Timothy Hall, who was then 17, by stabbing him to death. There were "143 separate 'sharp force injuries' to the victim's body." Mickens v. Commonwealth, 247 Va. 395, 399, 442 S. E. 2d 678, 682 (1994). Hall was last seen alive on March 28, 1992, and his body was discovered March 30, 1992. Id., at 398-399, 442 S. E. 2d, at 681-682. Although he denied committing the crime at trial, J. A. 45, Mickens' identity as the killer was established by, among other evidence, his knowledge the victim had been stabbed, his express statement to the police he was guilty, his possession and sale of the victim's tennis shoes, and DNA analysis of semen from the scene. The DNA evidence, while not conclusive by itself, was powerfully corroborating in light of the other evidence. See 247 Va., at 400-401, 442 S. E. 2d, at 682.

Shortly before his death, Hall was the subject of juvenile court petitions as a result of a scuffle with his mother and his possession of a bread knife wrapped in newspaper. J. A. 391-394. Attorney Bryan Saunders was appointed to represent him. J. A. 396. On April 3, 1992, the juvenile case was dismissed due to Hall's death. J. A. 390.

On April 1, 1992, two days after discovery of the body, the local newspaper printed a story about Timothy Hall. J. A. 397-398 (copy of article); J. A. 168 (date). The article discusses the rumors that Hall was a male prostitute, the fact he lived at a friend's house rather than with his mother, the incident with his mother and the resulting charges, and the concealed weapon allegation, erroneously referring to the latter as involving a gun rather than a knife. J. A. 397-398.

Attorney Saunders was appointed to represent Mickens, along with co-counsel Warren Keeling. "Saunders never told Mickens or Keeling that he had represented Hall . . . ." Mickens v. Taylor, 240 F. 3d 348, 354 (CA4 2001) (en banc). Keeling was primarily responsible for investigating the sentencing-phase issues. J. A. 172-173. He was aware of the newspaper article. J. A. 168.

In the penalty phase, the prosecution introduced Mickens' extensive criminal record, including two convictions of sodomy and four other felonies. Two of Mickens' surviving victims testified. Charles Siron testified that Mickens forcibly sodomized him in the city jail while holding a razor blade to his throat. Elementary school teacher Ruby Bunn testified that Mickens robbed her in her classroom by threatening a small child with a knife. 247 Va., at 410, 442 S. E. 2d, at 688. Mickens was sentenced to death, and the Virginia Supreme Court initially affirmed. Id., at 412, 442 S. E. 2d, at 689. This Court vacated and remanded "for further consideration in light ofSimmons v. South Carolina, 512 U. S. 154 (1994)." Mickens v. Virginia, 513 U. S. 922 (1994). The Virginia Supreme Court remanded for a second penalty trial. Mickens v. Commonwealth, 249 Va. 423, 457 S. E. 2d 9 (1995). The second jury reached the same conclusion, and its verdict was affirmed. Mickens v. Commonwealth, 252 Va. 315, 478 S. E. 2d 302 (1996). Mickens filed a state habeas petition, prepared by new counsel. J. A. 103-125, 133. The Virginia Supreme Court denied it. J. A. 126.

On federal habeas corpus, Mickens raised the conflict issue for the first time. The District Court found he had cause for the default and that "the prejudice inquiry incorporates the test for the underlying claim." Mickens v. Greene, 74 F. Supp. 2d 586, 602 (DC ED Va. 1999).

The District Court held an evidentiary hearing, including testimony by both defense counsel. J. A. 155-253. The court found "that Saunders did not learn any confidential information from Hall that was relevant to Mickens' defense either on the merits or at sentencing." 74 F. Supp. 2d, at 606 (emphasis in original), J. A. 291. Further, "the Court credits Saunders' testimony that he did not refrain from taking any actions for Mickens because of his earlier representation of Hall." Id., at 612, J. A. 303. The District Court denied the conflict claim, finding neither actual conflict, adverse effect, nor prejudice to excuse the default. Id., at 615, J. A. 309.

On Mickens' related ineffective assistance of counsel claim, the District Court held it was both defaulted and meritless. "In light of the facts facing counsel . . . , counsel reasonably chose not to pursue a consent defense. Furthermore, the lack of mitigating evidence is attributable to the absence of such evidence rather than the failings of counsel." Id., at 598, n. 6, J. A. 275.

A divided panel of the Court of Appeals reversed, finding that under Wood v. Georgia, 450 U. S. 261 (1981), no showing of an adverse effect is required in these circumstances. Mickens v. Taylor, 227 F. 3d 203, 210-211 (CA4 2000), J. A. 327-329. The en banc court disagreed, 240 F. 3d, at 360, J. A. 371-372, and reinstated the District Court decision. This Court granted Mickens' petition for certiorari on April 16, 2001.

SUMMARY OF ARGUMENT

Nix v. Whiteside establishes that the boundaries of the Sixth Amendment right to unconflicted counsel are not coextensive with professional norms. Instead, those norms mark an outer limit. A set of facts that does not constitute a conflict under professional norms does not violate the Sixth Amendment, but the converse is not necessarily true.

Duty to former clients is much more limited than duty to present clients under those norms. The continuing duty is to preserve confidential information, which is defined to exclude information that has since become public. There was no conflict in this case.

Teague v. Lane applies to this case and is fairly included in the question presented. Caspari v. Bohlen holds that a certiorari petitioner preserves the Teague issue by arguing it in the body of the certiorari petition. Argument in the body of the brief in opposition is therefore sufficient for the certiorari respondent.

Surveying the legal landscape, Cuyler v. Sullivan, Strickland v. Washington, Burger v. Kemp, and Burden v. Zant establish that an adverse effect must be shown by the habeas petitioner in the circumstances of the present case. Wood v. Georgia was a decision on an unargued, unbriefed point, which merely omitted discussion of an element not separately disputable on the facts of the case.

Where, as here, pertinent Supreme Court precedents state a rule which, on its face, applies to the present case, an argument that nuances of other cases create an unstated exception is per se a proposal for a "new rule" within the meaning of Teague.

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1. This brief was written entirely by counsel for amicus, as listed on the cover, and not by counsel for any party. No outside contributions were made to the preparation or submission of this brief.