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Defendant’s ex-lawyer can vouch for former adverse testimony

A prosecutor can use a criminal defendant’s former lawyer to authenticate  previous incriminating court testimony when witnesses become forgetful, the Virginia Court of Appeals has ruled.

It’s a common affliction for witnesses in tough neighborhoods. Even though they may have fingered an accused bad guy in a preliminary hearing, their memories grow foggy at the later trial.

That was the prosecutor’s problem in the case of Mario Turner. A key witness previously had testified Turner shot a high school football player as the victim chatted with friends on a Newport News street. At trial, however, the witness said he couldn’t remember much about the actual shooting, even when reminded of his words at the prior hearing.

Lacking an authenticated transcript of the preliminary hearing, the prosecutor called the lawyer who had represented Turner at that earlier proceeding. Over the objections of Turner’s current counsel, the lawyer agreed the witness had, indeed, pointed to Turner as the shooter.

On appeal, Turner argued this was inadmissible hearsay because the forgetful witness was available, right there in court. The three-judge appeals court panel affirmed Turner’s conviction, however, reasoning that the testimony of the  witness was not available because of his faulty memory.

The appeals panel also held, as a matter of first impression in Virginia, that it was not improper for the lawyer to testify against his former client. “The Commonwealth only sought to elicit events and information conveyed by [the witness] at a prior public court proceeding, and did not seek to have any information disclosed that was privileged,” wrote Judge Robert J. Humphreys for the court.

The decision affirms Turner’s conviction and 10-year sentence for aggravated malicious wounding and use of a firearm.

By Peter Vieth

2 comments

  1. Turner v. Comm. misapplied Rule 1.6 and 1.9. The defendant’s former lawyer testified, based on an unauthenticated transcript, to prior testimony given at prelim by a witness for the commonwealth. The Court’s analysis at pp. 17-20 is that the prior testimony of the witness is not information protected under Rule 1.6 when it clearly is. A lawyer may not disclose informaton detrimental to a former client, even if the information is a matter of public record. The court’s reliance on Rule 1.9 (c) on the basis that the witness’s testimony was “generally known” is misplaced. The testimony may have been in court and therefore a matter of public record but the testimony of that witness was not to facts that have become “generally known.” The Court should have concluded that the former PD could not voluntarily disclose information protected under Rules 1.6 and 1.9 unless required by law or court order to do so. The would require defense counsel or the former lawyer to object and have the court rule on whether the former lawyer could answer the particular question put to him. I can’t tell from reading the opinion how the trial court handled this, but to rule that the information is not protected under the cited rules is an incorrect conclusion in my opinion.

  2. Turner v. Comm. misapplied Rule 1.6 and 1.9. The defendant’s former lawyer testified, based on an unauthenticated transcript, to prior testimony given at prelim by a witness for the commonwealth. The Court’s analysis at pp. 17-20 is that the prior testimony of the witness is not information protected under Rule 1.6 when it clearly is. A lawyer may not disclose informaton detrimental to a former client, even if the information is a matter of public record. The court’s reliance on Rule 1.9 (c) on the basis that the witness’s testimony was “generally known” is misplaced. The testimony may have been in court and therefore a matter of public record but the testimony of that witness was not to facts that have become “generally known.” The Court should have concluded that the former PD could not voluntarily disclose information protected under Rules 1.6 and 1.9 unless required by law or court order to do so. The would require defense counsel or the former lawyer to object and have the court rule on whether the former lawyer could answer the particular question put to him. I can’t tell from reading the opinion how the trial court handled this, but to rule that the information is not protected under the cited rules is an incorrect conclusion in my opinion.

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