Skip to comments.Judge Mudd Refuses Sequester Plea: Westerfield Jury Verdict In Sep? (Aug. 16th Verdict Watch)
Posted on 08/16/2002 6:39:20 AM PDT by FresnoDA
August 15, 2002
Arguing that media coverage was creating a "lynch mob mentality" that could pressure jurors to return a guilty verdict, the defense attorney for David Westerfield today asked the judge yet again to sequester the jury.
While the jury completed its first week of deliberations without a verdict, Superior Court Judge William Mudd denied the request and a related motion to "pull the plug" on television and radio coverage of the courtroom proceedings, but agreed to set aside a private room for jurors to take breaks. Defense attorney Steven Feldman had argued that reports suggested jurors felt like they were under siege, unable to leave their deliberating room, go to lunch or walk home without being watched or followed.
"We have no assurance that they are not be intimidated ... by the presence of the media," Feldman told Mudd during a morning hearing. "We can think of only one fair resolution to that: Get the jury out of harm's way."
Westerfield, 50, could face the death penalty if convicted of kidnapping 7-year-old Danielle van Dam from her family's Sabre Springs home on Feb. 2 and killing her. Jurors are in their sixth day of deliberations.
Lead prosecutor Jeff Dusek disagreed with Feldman's interpretations of the jury's complaints.
"Whether or not any guilty verdict in this case would be based on a siege mentality or the meida I think is pure speculation and utterly false in this case," Dusek said.
What the jurors had complained about was being watched all the time, he said.
"That hardly equates to being under siege," he said.
Media coverage has diminished since the jurors began deliberating, the judge said.
"The synopsis programs on the two local TV networks are not in place," he said. "The talking heads are doing nothing but speculating about what the jury may or may not be thinking."
Mudd said there were no signs that jurors were being harassed by the public, especially since their names and faces haven't been publicized.
"We've all sat here and picked this jury, know their makeup and know their dedication to this cause," Mudd said. "I would prefer to think that any verdict they make in this case would be based upon the evidence."
Sequestering the jury also wouldn't protect them from any public reaction to the verdict, Mudd said.
Mudd took aim at two radio program hosts from Los Angeles who he previously described as "idiots."
"I suppose it's entertainment out of LA. I hope it stays in LA," he said. "The shows those two gentlemen put on made the court incredulous as to what they were attempting to do."
Mudd also announced:
On July 9, Shen's testimony interrupted presentation of defense witnesses. Shen, a San Diego police criminalist, testified about re-examining a group of fibers she had collected from Westerfield's 4Runner in February.
The orange acrylic fibers, found in various places inside the SUV, were the same color and fabric as a fiber tangled in a plastic necklace that Danielle was wearing when authorities found her body in a hollow off Dehesa Road, Shen testified at the time.
All the fibers looked identical under a microscope and appeared to have the same chemical makeup when tested using infrared technology, she said.
Shen said the fibers seem "most likely to have come from something that was very loosely knit," such as a sweater or blanket.
"You folks are going to deal with my PR person. You're going to leave my bailiff and my clerk alone," Mudd told reporters in the courtroom. "One statement leads to 60 questions that they're not going to answer and neither am I."
Mudd decided to turn the daily updates over to the court's public information officer after deciding that an informal system set up to have a bailiff or court clerk provide updates had failed.
"There was a simple note that they started at 9, they left at 4 left you chomping on bit to get copies," He said. "You're welcome to them, they'll be available as soon as we gett the minute order."
Reporters and members of the public will not be informed immediately about notes passed by the jury, Mudd said. The judge said he had procedure to follow, that includes notifying the attorneys involved in the case about the note and determining the appropriate response.
"This is a capital case and you go by steps," Mudd said.
SAN DIEGO ---- Jurors in the murder case of 7-year-old Danielle van Dam spent a fifth day Wednesday deliberating the fate of her accused killer, David Westerfield.
Since receiving the case a week ago, the panel of six men and six women has asked to rehear a taped interview Westerfield gave to police two days after Danielle disappeared and to see a transcript of that interview.
Hayne Palmour/ Photographer
|A shoe shiner plies his trade as jury consultant Toni Blake, right, does a television interview with CNN in front of the San Diego County Courthouse in downtown San Diego on Wednesday. Blake was doing several interviews with different television stations answering questions about what she thinks the jury for the David Westerfield trial may be going through.
They also asked to view pornographic images taken from Westerfield's home computer along with a picture of teen-ager Danielle L., the daughter of Westerfield's ex-girlfriend, lounging in a bikini.
All the notes were signed "Thanks, Juror 10." He is an accountant with a young child.
Westerfield, 50, faces the death penalty if convicted of kidnapping and murdering Danielle. The little girl lived two houses from the twice-divorced design engineer. She was reported missing Feb. 2. Nearly four weeks later her nude body was discovered by volunteer searchers under an oak tree in rural East County.
Westerfield also faces a misdemeanor charge of possession of child pornography.
Jurors heard eight weeks of testimony from almost 100 witnesses and viewed 199 exhibits, which now sit with the panel in a secluded room at the downtown San Diego courthouse where they meet each weekday. There is no timetable for them to reach a decision.
While there was little movement in the case Wednesday, a continuous flow of letters were still being sent to the courthouse. The correspondence is kept in court files several inches thick.
Many of the letters praise Judge William Mudd.
"First, I want to thank you for running an excellent trial in the Westerfield case," wrote a Valley Center resident. "I can imagine it is difficult and taxes your patience and concentration."
Another was from someone who claimed to be psychic and was convinced Westerfield was not guilty.
"My ESP is always right," the person wrote.
Others were from people offering their opinions on the case. A few sent pictures.
One woman wrote a poem after apparently being a little bothered by the judge's phonetic pronunciation of prosecutor Jeff Dusek's last name.
"Aya 'Captain' Judge Mudd, you run a tight ship, your rulings are fair, your humor's a pip. But something's amiss, your honor ---- Oh heck. Isn't Jeff's surname pronounced as Doo Shek?"
The authored signed the note to Mudd as "Your fan."
A closed-door hearing on a motion submitted by Westerfield's defense team is scheduled to be heard this morning.
Contact staff writer Kimberly Epler at (760) 739-6644 or email@example.com.
SAN DIEGO Jurors weighing David Westerfield's fate want to rehear testimony from a police lab technician who said "dirty dancing" between Danielle van Dam's mother and the defendant might explain some fiber evidence.
The foreman of the panel, now in its sixth day of deliberations, sent a note to Judge William Mudd Wednesday afternoon requesting a readback of the San Diego Police Crime Laboratory criminalist Jennifer Shen.
Shen testified twice for the prosecution, and the jury note specified her second turn on the stand when she conceded on cross-examination that close dancing might have spread orange fibers later used to link Westerfield to the 7-year-old's murder.
Shen and other lab techs found that orange acrylic fibers in Westerfield's SUV, home and recreational vehicle were similar to a single strand snagged in a choker necklace Danielle was wearing when she was killed.
During an aggressive cross-examination by defense lawyer Steven Feldman July 9, Shen acknowledged that if she had known that some witnesses said Westerfield and Brenda van Dam were dancing suggestively, "that would impact my evaluation of the evidence."
But Shen's testimony also bolstered the prosecution's case. It was during her second time on the stand that she discussed orange fibers found in Westerfield's SUV. She also said the sheer amount of fibers, taken with the other forensic evidence, made it unlikely the fibers were transferred through a third party rather than directly.
Also Thursday morning, Judge Mudd once again denied a defense request to sequester the jury. Feldman, citing a recent report on Courttv.com that jurors asked a bailiff to instruct the press not to stare at them during coffee breaks, charged that the jury felt "under siege."
"There's only one fair response Get the jury out of harm's way," said Feldman.
He also asked the judge to throw television cameras and radio microphones out of the court for the remainder of the trial.
Mudd railed against the media and said he doubted he would ever let cameras in his courtroom after the completion of this trial, but he said for the time being he would not throw the cameras out nor sequester the jury.
He agreed that jurors should eat lunch and take breaks in a private area in the future.
There is no "prize," but the winner(s) get to be called "winners" and have the right to say "I told you so;" we're still negotiating about "neener neener neeners."
(Note: All times PDT; if this thread gets real long, you might want to send your choices via freepmail or post them on the Refugee site--often I quit reading them when they're very, very long.)
I have a question about Jennifer Shen. I have a hard time remembering her later testimony, since it came during the defense part of the trial. She said she found lots of these fibers in the SUV and they matched the choker. However, they never did find a source for these fibers, right? Also, is this where they talked about all those multi-colored fibers that they can't explain? Was Shen's testimony ultimately damaging to Westerfield or not? (I can't believe I'm bringing up fibers voluntarily. I hated this part of the trial!).
Even though one alternate juror reported being followed, Mudd said it wasn't necessary to put the jurors in a hotel.
"Apparently it is an ongoing problem," Mudd said.
The judge said he and his staff would deal with the problem internally.
Mudd agreed to find a place for the jurors to take their breaks during deliberations where they couldn't be seen by reporters.
"Sequestration would not save them from the media," Mudd said of the jurors, calling them a "dedicated and hard-working" group of people.
Westerfield, 50, is charged with murder, kidnapping and misdemeanor possession of child pornography in connection with the death of 7-year-old Danielle van Dam.
The twice-divorced self-employed design engineer could face the death penalty if the jury convicts him of killing his Sabre Springs neighbor and finds true a special circumstance allegation that the murder happened during a kidnapping.
Many experts and self-appointed pundits have speculated on how long it might take to reach verdicts or whether a hung jury is possible.
The jury Wednesday asked for readback of the testimony of San Diego police criminalist Jennifer Shen, when she was recalled to testify about orange fibers that allegedly link Westerfield to the victim.
Jurors have also reviewed all of the pornographic evidence in the case and asked to look at photographs that Westerfield had taken of his ex-girlfriend's teenage daughter, according to court documents.
Prosecutors told the jury that one photo of the daughter lying by the pool was sexually suggestive.
Jurors also re-listened to a taped interview the defendant gave to a police interrogation specialist on Feb. 4, two days after Danielle's mother discovered the second-grader missing from her bed.
I don't know what the conditions are in the deliberation room, but getting past the crowd at the Court House has been a night mare for most of them.
They seem to be just doing things their way, taking their time, and going over conflicting evidence...so, I say "good for them".
We can wait.
Jurors have been deliberating for six days on whether Westerfield should be convicted of kidnapping and killing 7-year-old Danielle van Dam. Earlier a judge denied a request to sequester the jury in the case.
Even though one alternate juror reported being followed, the judge said it wasn't necessary to put the jurors in a hotel.
Lawyers for defendant David Westerfield repeatedly have requested the jury be sequestered.
Westerfield is charged with killing Danielle van Dam in February. She was kidnapped from her bedroom, and her body was found 25 days later
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