Virginia Supreme Court Examining Attorney/Client Privilege
A case pending before the Virginia Supreme Court is calling into question the conviction of Mario Turner for the shooting of high school football player, Darnell Robinson in 2009. At the heart of the matter is the transcript taken at the preliminary hearing. When this transcript was admitted into evidence at the trial, it was discovered the transcript was not certified by the court reporter. Furthermore, the court reporter could not be located to certify it.
The original testimony contained information identifying the attacker and detailing the events of the evening. At the trial, Eric Poindexter lost his memory of the events surrounding the shooting. Even when handed with his transcript, the statement he gave the officer on site, and at considerable urging under direct examination, his memory could not be jogged.
It was at this point the Court decided to call the defendant’s former attorney to the stand to verify the transcript and the details it contained. He was constrained from violating attorney client privilege and the questions were confined to references contained in the transcript only. The Court asked questions regarding Mr. Keeley’s recollection specifically regarding the transcript, which he certified as accurate.
Mr. Turner filed an appeal and in July his conviction was upheld. Mr. Turner’s appeal was based Virginia Code of Ethics (1.6) which defines the limits of attorney/client privilege. The state asserted this boundary was not crossed and the issue was covered by Rule 5A:18 when Mr. Turner’s attorney did not make clear his objection during Mr. Keeley’s testimony.
Mr. Turner asserted the witness was available and in the courtroom, therefore the transcript did not need to be admitted into evidence. The prosecution maintained the memories Mr. Poindexter clearly presented in the preliminary hearing were not present at the trial and could not be revived, even by use of the transcript. That being the case, the witness was unavailable and his transcript must be entered into evidence.
Mr. Turner filed his appeal in August and these questions now rest in the hands of the Virginia Supreme Court.
