Virginia Supreme Court: 'Turner' case on lawyer testimony is remanded

By Paul Fletcher and Peter Vieth Dolan Media Newswires RICHMOND, VA--A closely watched case about a lawyer who testified against his ex-client has been remanded - but not on the grounds that observers were expecting. In Turner v. Commonwealth (VLW 012-6-089), the high court said that a trial judge in Newport News failed to use the right test to determine whether a witness was "unavailable" and sent the case back. The Supreme Court did not address the issue of whether the judge should have allowed the testimony of a former public defender who at one time represented the defendant. The prosecutor used the lawyer to establish that the information in a transcript of the police interrogation of the witness was accurate. Justice Donald W. Lemons, concurring in the remand, put the issue of the lawyer's testimony squarely on the table, however: he said that the Rules of Professional Conduct state a lawyer cannot use information gained in the course of his representation to the disadvantage unless it is "generally known." That wasn't the case here, he said, and he wrote that he believed that letting the lawyer testify was error. Shooting in NN Darnell Robinson was shot four times while standing at a street corner in Newport News in 2009. Several witnesses testified at a preliminary hearing that Mario Turner was the man who fired the shots. By the time of Turner's trial before a circuit judge, however, some of the witnesses had become forgetful. One of those was Turner's cousin, Eric Poindexter. He told the trial judge he no longer remembered seeing Turner that night. Even when given a copy of his earlier testimony to review, he said he did not remember anything except running from a shooting scene. Circuit Judge C. Peter Tench ruled the hearing transcript could be used as evidence because Poindexter's testimony was "unavailable." When the prosecution could not locate a certified copy of the transcript, it called the former public defender who testified, over Turner's objection, that the transcript accurately reflected Poindexter's earlier testimony. Turner was convicted of malicious wounding and sentenced to 10 years. The Court of Appeals upheld the conviction in Turner v. Commonwealth (VLW 011-7-248). The three-judge panel said Poindexter's testimony amounted to hearsay, but was admissible because his memory lapse made him "unavailable." The Supreme Court agreed to hear the case to consider not only whether Poindexter was unavailable, but whether the Rules of Professional Conduct barred the former public defender from testifying. The majority opinion never reached the legal ethics question. Instead, Justice William C. Mims, writing for the court, found the outcome turned on the threshold issue of whether Poindexter was "unavailable." Reviewing the touchstone cases, the court said the law requires more than the "bare assertion" of a witness that he cannot remember. Tench, the court noted, never questioned Poindexter about whether his loss of memory was genuine. A trial court has an obligation to check out the claim "to ensure the witness has not feigned his loss of memory in an attempt to evade the obligation of testifying," Mims wrote. Only after observing the witness' demeanor to assess the authenticity of the witness' claim is the court's assessment entitled to deference. The Supreme Court held Tench abused his discretion in declaring Poindexter unavailable for purposes of allowing the prior testimony into evidence. In a concurrence, Justice Donald W. Lemons said the court was missing a chance to correct the Court of Appeals when it concluded the public defender violated no rule of professional conduct in taking the stand against his former client. Lemons said the defender violated the Rules of Professional Responsibility when he testified "to Turner's disadvantage" about information gained in his representation that was "not generally known." Entire contents copyrighted © 2012 by The Dolan Company. Published: Mon, Jun 18, 2012