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Criminal defense lawyers should be immune from testifying against their clients at their criminal trials

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Mario Turner got convicted — and sentenced to several years in prison — for aggravated malicious wounding and use of firearm during the commission of a felony. Turner v. Virginia, ___ Va. App. ___ (July 26, 2011).

Standing out most about Turner is neither his conviction nor sentence, but instead the prosecution’s reliance on the testimony of Turner’s former lawyer about the accuracy of an unofficial transcript of preliminary hearing testimony of prosecution witness Poindexter. At the preliminary hearing, Poindexter testified that Turner shot the victim, but entirely recanted that testimony at trial and claimed to be unaware of even the presence of Turner at the shooting scene.

Turner rejects Turner’s arguments that the Sixth Amendment, hearsay rules, and professional conduct rules prohibited his former lawyer’s testimony at trial. Missing from Turner is whether his former lawyer objected to being called as a witness against his former client; I hope he did.

Interestingly, on cross-examination, Turner’s former lawyer “admitted that he did not have any notes with him that he used to testify and that he was relying on the [unofficial preliminary hearing] transcript [presented by the prosecution]. [Turner’s former lawyer] also admitted that he had probably tried a couple hundred cases since the preliminary hearing, but that the transcript ‘sounds right.’ He stated further that he did not really remember the case and that his recollection of the case was ‘fuzzy.'” Yet, the trial court still allowed Turner’s former lawyer to testify.

In Virginia, preliminary hearings are held in District Court, which is called not a court of record, because the only way to record what takes place thereat is for one of the parties to hire a court reporter or to bring in a recordation device (but the recordation device cannot produce an official transcript) for the proceeding. Consequently, under Turner, are Virginia trial judges now going to permit prosecutors to have criminal defense lawyers testify about their recollection even of unrecorded preliminary hearing testimony against their clients? Certainly not if said lawyer continues as the trial lawyer for the defendant, I would hope.

What if Turner’s preliminary hearing lawyer had continued as Turner’s trial lawyer? I don’t see any way that he could have then been called as a trial witness. It makes no sense, then, that Turner was made to suffer by having his preliminary hearing lawyer testify against him, if that would not have been the case had Turner stayed with that lawyer through trial.