In a case that surprised some criminal defense lawyers, the Virginia Court of Appeals approved the use of a lawyer’s testimony against his former client in a decision released earlier this month.
In a malicious wounding trial in Newport News, a key witness suddenly became forgetful about whether he saw defendant Mario Turner shoot the victim. The prosecutor had a problem: The transcript of the witness’s prior testimony was never signed by the court reporter.
The prosecutor turned to an unexpected witness – the public defender who represented Turner during an earlier hearing in the same case. Over an objection from Turner’s trial counsel, Circuit Judge C. Peter Tench let the first PD, Brian P. Keeley, testify that the transcript of the witness’s testimony was accurate to the best of Keeley’s memory.
Tench convicted Turner of malicious wounding and handed him a 10-year sentence.
The Court of Appeals affirmed the conviction in Turner v. Commonwealth (VLW 011-7-248). The three-judge panel said the testimony amounted to hearsay, but it was admissible because the witness’ memory lapse made him “unavailable.”
Did the appeals court get it right? Some lawyers, including the Virginia State Bar’s ethics counsel, don’t think so.
The appellate panel turned to the Rules of Professional Responsibility, including Rule 1.6 which generally prohibits lawyers from revealing information detrimental to a client or former client. The duty of silence can be overcome by a court order. The issue had not been specifically addressed in Virginia, the court said.
The panel said the trial court did not abuse its discretion in allowing Keeley’s testimony because it concerned information that had become “generally known.”
VSB ethics counsel James M. McCauley said the court missed the mark on interpreting the rules. Testimony at a preliminary hearing is not “generally known” as that term has been interpreted, he said. Just because it is a matter of public record doesn’t mean the average person would know about it.
“The information was clearly protected under the rules,” McCauley said.
The appeals court appeared to confuse the attorney-client privilege with the ethical duty of confidentiality, McCauley said.
“It’s pretty hard to have non-confidential information” about a client, McCauley said. “Rule 1.6 is pretty broad.”
Although a court still could order the lawyer to divulge the information, McCauley said the Turner opinion short circuits that analysis by finding the information was never subject to ethics protection in the first place. McCauley also noted the opinion never says whether Tench expressly ordered Keeley to testify against his former client.
Charlottesville lawyer David L. Heilberg said the Turner opinion overlooks another rule that should have been addressed. The rules for Criminal Practice and Procedure require advance approval by a judge before a lawyer can be subpoenaed to testify concerning a former client. The restriction is in Rule 3A:12 (a).
Heilberg said Keeley could have brought his own lawyer to object to providing the requested testimony. “No lawyer should be put in that position with a former client,” Heilberg said. “It sounds like a habeas issue,” he added.
Hampton lawyer Charles E. Haden, who represented Turner in his appeal, was unavailable for comment as of press time.