Posted on 09/25/2002 6:50:25 AM PDT by Jaded
There were two trials of David Westerfield in the kidnap-murder of his 7-year-old neighbor. One that everyone saw, live on television. And one that no one saw because it was conducted in secret.
The public trial of Westerfield was the one with entomologists, cops and grieving parents. And then there was the other trial – the one with the man who said he heard a child scream from Westerfield's motor home and the woman who said she was date-raped.
Thursday, three days after a jury recommended that the 50-year-old design engineer be executed for kidnapping and murdering Danielle van Dam, transcripts from a large number of closed-door hearings were released. The 4th District Court of Appeal, acting on requests from the media, ordered the information made public, absent a compelling reason.
The transcripts detail what happened in 23 hearings Superior Court Judge William Mudd held in closed session when the trial was under way. Still locked away are transcripts from pretrial hearings and the motions that were filed.
Mudd has argued they should not be made public because the information in them would compromise Westerfield's right to a fair trial. Mudd asked the appeals court Friday for a delay to Oct. 22 and to be more specific.
Yesterday, Justice Richard Huffman gave Mudd until Oct. 7 and said Mudd will receive a clarification of exactly what he must unseal.The San Diego Union-Tribune and other news organizations have argued that all the secret information should be made public, particularly since the trial is over.
Because Westerfield's fair trial rights are no longer in play, Mudd does not have to weigh the competing constitutional interests of fair trial versus public access, and the transcripts and sealed motions should be released, said Jim Ewert, an attorney with the California Newspaper Publishers Association.
"It should all come out," he said. "The need to balance isn't there."
'Perry Mason courtroom' As new information surfaces, media experts and legal observers said one of the legacies of this trial will be Mudd's decision to conduct large portions of the proceedings out of public view. Terry Francke, a lawyer with the California First Amendment Coalition, said the restrictions Mudd imposed were the broadest he has encountered in more than 20 years.
Dean Nelson, a journalism professor at Point Loma Nazarene University in San Diego, said Mudd should be applauded for permitting television broadcasts of the trial but that all the secrecy undercut that.
"What the public got was a Perry Mason courtroom," he said. "What they didn't see is that a good amount of this case went on in secrecy."
Mudd said he closed some hearings because he did not want the jury exposed to potentially inadmissible evidence. But that, legal experts said, is not a good reason.
Laurie Levenson, a law professor at Loyola Law School in Los Angeles and frequent commentator on legal issues, said such logic would mean arraignments, preliminary hearings and other parts of criminal cases would be closed.
Criminal proceedings are presumed to be open to the public. State law requires judges to hold hearings and make specific findings on the record that no other alternative is available before locking the doors.
The law recognizes that closed courtrooms and sealed transcripts "are the exception, not the rule," Levenson said.
But as the trial wore on, Mudd often simply announced the courtroom would be closed, without holding the required hearing. On at least one occasion, Mudd left the decision on whether to close a hearing up to the attorneys, according to a transcript of a closed hearing June 25.
Mudd told the lawyers the media had inquired whether a hearing in a few days would be open, according to the transcript. He said he had "no particular position on it, one way or the other." And then said to prosecutor George "Woody" Clarke, "That's going to be your bailiwick."
Clarke also said he did not have "strong feelings one way or the other." Then Mudd turned to defense attorney Steven Feldman, who commented that "every other hearing that's related to the admissibility of evidence" had been closed, and the coming hearing should also be closed.
"Well, I guess to be consistent, that's true," Mudd said, before ending the discussion by saying, "But, all right, we can keep it closed."
Such a casual discussion flies in the face of the law, said Tom Newton of the California Newspaper Publishers Association. He said the media recognizes that in some instances hearings have to be closed to protect a defendant's right to a fair trial or the privacy concerns of jurors.
"But all we ask is that it be done in an open manner, where the reasons for closing it can be tested," Newton said.
Mudd vs. media Mudd had a contentious relationship with the media throughout the trial. "I can't seem to have a day around here when I don't run head-on into the media," he lamented during a closed hearing Aug. 23. He frequently criticized the coverage, and belittled and lectured the media while jabbing his finger on national television. He banned a producer for a radio show from his courtroom with a curt, "Good day, madam," because he didn't like a report on the station detailing aclosed hearing.
He had the marshal's office running investigations into leaks to the media and a complaint that one juror was being followed.
He banned a Union-Tribune photographer forphotographing Brenda and Damon van Dam in the spectator section of the court. Mudd said the shot violated a court order.
The week he did so, however, the NBC program "Crime & Punishment" broadcast a trial, filmed months earlier in Mudd's courtroom, that frequently showed spectators in the gallery. In one instance, Mudd allowed the cameras to film the defendant and his mother, who was in the gallery, as they embraced.
The court file in that case shows Mudd approved coverage as long as it abided by the court rules hecited when he ejected the Union-Tribune photographer. No special allowance for filming the gallery was made, according to a check of court records.
Mudd did not respond to inquiries for an explanation about the apparent discrepancy in treatment.
Despite Mudd's complaints about the media in the Westerfield case, he seemed to consume the coverage as voraciously as anyone.
The transcripts are full of references to his watching broadcasts, reading articles, hearing reports. On June 26, he remarked to the attorneys that the previous night he had dutifully "surfed the channels."
Closing the courtrooms was more than just a dispute between the media and a single judge.
"The loser here is not the news media, but the general public," said Nelson, of the publishers' association, who faults the media for not explaining that the issue was one of public access – not media access – to the courts.
The appeals court Sept. 13 ordered Mudd to stop holding closed hearings unless he followed proper procedures, and directed him to release the transcripts of closed hearings.
By then, the jury was deliberating in the penalty phase. Though the ruling came too late to open proceedings in the Westerfield trial, it may have an effect on future high-profile cases.
Francke said the ruling rebuking Mudd might make other judges "have an awareness that says you have to be careful about how you handle those things."
I don't think they bother people they think might have money to hire a lawyer.
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