Westerfield judge refuses to release transcripts
KIMBERLY EPLERStaff Writer
SAN DIEGO ---- Saying it could "lead to a mistrial," Judge William Mudd refused a media request Monday to release transcripts of closed-door hearings he held with attorneys in the David Westerfield case. The issue goes to the court of appeals.
Jurors are now deciding whether Westerfield, 50, is guilty of kidnapping and murdering his 7-year-old Sabre Springs neighbor, Danielle van Dam.
 Pool Photo |
| Media attorney Guylyn Cummins, right, petitioned the court to release the transcripts of closed hearings in the trial of David Westerfield, Monday morning at the San Diego courthouse. |
An attorney for several media outlets, including the North County Times, asked for copies of the court reporter's record of a series of meetings that took place behind closed doors before the trial, during the trial and since jurors received the case on Aug. 8.
Meanwhile, the panel of six men and six women spent Day 8 of deliberations rehearing testimony from the county medical examiner and a defense bug expert. The jurors went home early after one of them became ill.
Mudd and the media have gone several rounds over the constitutional right to have access to court hearings and related documents vs. a defendant's right to a fair trial. Almost every time, the press has lost. Monday was no exception.
"The overriding concern right now is that the jury be unhindered by a deluge of commentary on items that were not allowed in the trial," Mudd said.
Westerfield could face the death penalty if convicted of killing Danielle, who disappeared overnight from her second-story bedroom in early February. Her nude body was found nearly four weeks later under an oak tree in rural East County.
Mudd's rulings have left an information gap about how and why he made certain determinations on what evidence, testimony and theories attorneys on both sides of the Westerfield case were able to present to jurors. Also unclear is what kind of information has been kept out of the public realm.
The judge said his decisions to close the hearings and seal the transcripts were necessary to protect each side's right to a fair trial and to keep the jury from being overwhelmed by intense media coverage while they deliberate.
Mudd said some of the information could be harmful to parties in the case and, if disclosed, could "lead to a mistrial."
"The court can't rely on the discretion of the media," he said to a courtroom of media types and one or two members of the public.
Each day during the eight-week trial, Mudd admonished the jury not to pay attention to media coverage.
Westerfield's attorney, Robert Boyce, expressed frustration at having to deal with the media request while the defense team was in the midst of preparing to argue for Westerfield's life if the jury returns a guilty verdict.
Mudd has allowed gavel to gavel television and radio coverage of the trial and assigned 10 seats inside the courtroom to members of the press. He also has repeatedly refused requests from Westerfield's attorney, Steven Feldman, to sequester the jury because of the intense media coverage.
Media attorney Guylyn R. Cummins said justices of the U.S. Supreme Courts have ruled the public has a right to see how the judicial system operates and what decisions the judges make ---- including information that never makes it into the courtroom.
"They've said the public and the press are entitled to see the full process," Cummins said. "They are entitled to see what was included and what was excluded."
Beyond closed hearings, Mudd has also sealed motions filed by attorneys, some of which he later released. Search warrants served on Westerfield's property were only released after an appeals court order.
Mudd spent six days behind closed doors listening to attorneys argue about what evidence should be presented at trial. Other motions were heard in open court. His rulings were made on the record. But there was no background on what attorneys originally wanted to present or keep from jurors.
"We need relief from the court of appeals to make sure this does not become the precedent in San Diego criminal cases," Cummins said.
Contact staff writer Kimberly Epler at (760) 739-6644 or kepler@nctimes.com.
8/20/02