
                         THE VIRGINIAN-PILOT
                 Copyright (c) 1994, Landmark Communications, Inc.

DATE: WEDNESDAY, June 22, 1994                    TAG: 9406220434 
SECTION: LOCAL                     PAGE: B3    EDITION: FINAL  
SOURCE: BY JOE JACKSON, STAFF WRITER 
DATELINE: 940622                                 LENGTH: VIRGINIA BEACH

PROSECUTOR LOSES BID TO REMOVE DEFENSE ATTORNEY

{LEAD} A prosecutor's motion to force a defense attorney to resign so that he could be subpoenaed as a witness against his client in a murder case was overruled Tuesday by a General District Court judge.

On Monday, Commonwealth's Attorney Robert Humphreys argued that Norfolk attorney Troy Spencer waived the attorney-client privilege when he gave an interview to The Virginian-Pilot and The Ledger-Star about his client, Michael S. Mitchell, charged with the April 29 murder of a man in the checkout line of the Food Lion store at Lynnhaven Parkway and Pleasant Valley Road.

{REST} Humphreys argued that Spencer should be removed from the case because of ``certain incriminating statements'' made in the interview about Mitchell's ``criminal activities,'' court records said. The state wanted to call Spencer as a witness because his statements were ``based on alleged communications'' with Mitchell, records said.

But on Tuesday, Judge Robert L. Simpson Jr. ruled that the attorney-client privilege still applies and added that the privilege is the client's, not the lawyer's, to waive.

``A newspaper article quoting the attorney is utterly insufficient to show the client waived this important privilege,'' Simpson wrote.

``The attorney-client privilege is pretty inviolate,'' said Martin Thomas, who represented Spencer at Monday's hearing. ``I can't recall anything like this being attempted before'' in South Hampton Roads.

Spencer contended in the May 4 article that Mitchell admitted shooting 44-year-old George Fedon Jr., but only after his life was threatened.

Spencer said Fedon grabbed the 21-year-old Mitchell in a headlock and said he would kill the younger man after an argument in the checkout line. Mitchell shot Fedon four times with a 9 mm handgun and ran from the store. He was arrested soon afterward in a nearby patch of woods.

``This is a pretty chilling thing,'' said Spencer, a former Norfolk prosecutor. ``We never tried anything like this when I was a prosecutor.''

Mitchell never denied shooting Fedon, Spencer said.

{KEYWORDS} MURDER

by CNB