When Michael Valva was arraigned after his 2020 arrest, he was represented by Angela Pollina’s attorney. Valva’s attorneys on Thursday raised this with the judge and said Valva spoke to Pollina’s attorney about things that transpired the morning of Thomas Valva’s death, though her attorney denied that. Newsday TV’s Cecilia Dowd reports Credit: Newsday/James Carbone; Randee Daddona; Photo Credit: Justyna Zubko-Valva

Lawyers for the ex-NYPD cop charged in the death of his 8-year-old son Thomas Valva renewed on Thursday their request for a separate trial after the ex-officer recently claimed he discussed details of the case with the attorney for his ex-fiancee and co-defendant.

Michael Valva said that he previously discussed the case with Matthew Tuohy, the lawyer representing Angela Pollina, and that the lawyer could use that information against him during their joint trial that started Wednesday with jury selection, Valva defense attorney Anthony La Pinta said in Suffolk County Court in Riverhead Thursday.
Tuohy denied Valva's claims, saying they only met for about 15 seconds and did not discuss any facts of the case.

But La Pinta argued for Suffolk Supreme Court Justice William Condon to question Valva privately about the encounter with Tuohy in the judge's chambers "to understand factually whether there is a conflict."

Condon then conducted an in-camera review, which took roughly 10 minutes. The judge sealed the contents of the meeting at the defense's request. 

Condon is expected to rule on the defense application for a severance, or a proposed compromise plan that would mandate Valva jurors leave the courtroom during any Tuohy cross-examinations, on Friday.

The newest legal drama in the case played out on the second day of jury selection in the case, which has seen several delays due to the coronavirus pandemic.

Valva, 43, and Pollina, 45, have pleaded not guilty to a five-count indictment including charges of second-degree murder and child endangerment charges in connection with Thomas' Jan. 17, 2020 hypothermia death at the family's Center Moriches home, and the alleged abuse of his older brother, Anthony Valva, then 10.

Prosecutors have alleged that Valva and Pollina forced Thomas to sleep in their unheated garage in 19 degree weather. Valva's attorneys have said it was Pollina who directed Thomas to sleep in the garage, while Pollina's attorney has said Valva was solely responsible for his son's death. 

The pre-screening of potential jurors for Valva and Pollina's trial began Wednesday when dozens were dismissed because they told the court they had already formed opinions about the case based on media coverage. The judge previously ruled the pair would be tried together with two separate juries because of the defendants' antagonistic defenses. 

La Pinta, arguing before Condon Thursday, said the interaction between Tuohy and Valva could represent a conflict that could have negative implications for his client. La Pinta proposed a complete severance of the cases against Valva and Pollina or a system whereby every time Tuohy cross-examines a witness during their joint trial, the Valva jury would leave the courtroom.

"We feel that proposal adequately protects Mr. Valva's rights," La Pinta said.

Undated photograph of Thomas Valva.

Undated photograph of Thomas Valva. Credit: Courtesy Justyna Zubko-Valva

Valva and Pollina were arraigned initially on a criminal complaint filed by prosecutors in Suffolk County District Court in Central Islip on Jan. 24, 2020, the same day they were arrested in connection with Thomas' death. While Tuohy was hired to represent Pollina from the outset of the case, his legal partner, Austin Manghan, was supposed to represent Valva.

Because Mangan was running late to that initial arraignment, Tuohy said he stepped-in as the lawyer for Valva, a somewhat common practice among defense attorneys for initial criminal court arraignments.

La Pinta apologized to the judge for raising the issue at this stage in the case and said he wanted to "dispel" any notion that "this is a defense strategy," adding that it put the team in an "awkward position."

"We stumbled upon this in the last week," La Pinta said without explaining further.

La Pinta, describing Valva's allegations, said "previous to his appearance in court, [Tuohy] did meet with Mr. Valva in the sheriff's custody" for "a few minutes."

La Pinta said Tuohy asked Valva "broadly what happened" and Valva "gave a brief recitation of what happened."

"That's problematic," La Pinta said.

Condon pointed out that the sheriff's logs did not show Tuohy meeting with Valva or Pollina that day.

Tuohy, speaking to the judge, said his recollection of meeting with Valva is "crystal clear" and added that there was no discussion of substantial facts of the case.

Assistant District Attorney Kerri Ann Kelly, the lead prosecutor on the case, pointed out that Tuohy, an officer of the court, said "he did not receive any factual information from Mr. Valva."

She added: "The inquiry should end there."

Kelly said she was "not completely opposed" to La Pinta's proposal to remove the Valva jury from the courtroom while Tuohy cross-examines witnesses, but said the judge should use his discretion for each witness rather than making it a blanket ruling.

The jury pre-screening process also continued Thursday afternoon, with nearly 300 potential jurors being whittled down to about 70, who were directed to return to the courthouse Monday.

 La Pinta, speaking to reporters outside the courthouse after jury screening ended for the day, said "It's undisputed that the two of them met, what was discussed and at what detail is at dispute. But regardless of whose position you want to take and credit, it deserves an inquiry here by the court, a careful inquiry here, to make absolutely certain that this is going forward in a fair manner and that Mr. Tuohy doesn't benefit at Mr. Valva's expense."  

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