Judge Mudd Refuses Sequester Plea: Westerfield Jury Verdict In Sep? (Aug. 16th Verdict Watch)

Union Trib ^ | August 15, 2002 | Jeff Dillion/Steve Perez

[FresnoDA]

Judge denies defense motion to sequester jury

By Jeff Dillon and Steve Perez
SIGNONSANDIEGO

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."

 

'Broccoli heads'

He cited an incident earlier in the week in which radio talk show hosts from KFI-AM 640 in Los Angeles broadcast from outside the courthouse, waving stalks of broccoli around and reportedly calling jurors "broccoli heads" for being unable to return a quick guilty verdict.

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.

 

Trust in the jury

Mudd dismissed most of Feldman's concerns, saying that the jurors had only asked a bailiff to keep reporters a little bit farther away, though an alternate juror reported that he or she had been followed to his car.

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.

 

'The activities of a few'

"The tragedy is, the majority of the people in this courtroom are abiding by the court's orders and working very hard to insure they, meaning the media, do not cause something to occur that is going to cause a mistrial," Mudd said. "Not all of them feel that way as is very apparent with the activities of a few."

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:

 

• The jury asked to review the recall testimony of prosecution witness Jennifer Shen, a criminalist with the San Diego Police Department.

  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.

   

• Reporters will no longer be allowed to ask questions of the court's bailiff and clerk.

  "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.

   

[sawsalimb]

And another point,regarding that .22 casing-the VanDams don't strike me as the kind of people who would be having a bunch of hardware stacked up in the house. For whatever reason,Brenda VanDam,in particular,comes across to me as a soccer-mom type who would freak out if she saw a rifle or pistol.(Again,I'm guessing,and I have nothing but a few pics and some interviews to base my guesses on,but if had to bet,I'd bet that if there's a gun in the VanDam household,it's there under protest from Brenda.) For that matter,Westerfield doesn't seem the type to have a gun collection either,and I think that-considering the quality of the media coverage of the case so far-had Westerfield had any kind of firearm in his house,everyone in the country would have heard about it by now.

[Freedom2specul8]

That makes sense to me... Maybe the bullet/lead could have been eaten swallowed by the animals too..?

[Freedom2specul8]

That's a good idea... I'll see what i can find..

[domestice]

you got it!

[mouser]

the cartrige case was a winchester super x a fairly high speed .22
if it was a solid (as opposed to a hollow point) as long as it did not hit bone it would leave very little residue (lead fragments) in wound chanel
as long as the muzzle of the gun was say 5 feet or further away there would be no powder burns
at least my experience with .22 on small ganme and the yearly cow and pigs we butcher.

[CAPPSMADNESS]

"What about those cases in which the body isn't found, but defendant is convicted?"

Alot of these cases Kim, have to do with evidence of a crime scene and/or victim (blood splatter, blood loss etc...)

The ones that do not have any forensic evidence and only relay on he said/she said evidence, are the ones that really bother me. These are the cases that appear to have been tried on "gut instincts" and "feelings". I may not like my brother-in-law, as he treats my sister shabbily, but should my sister come up "missing", I would not want anyone convicted based on rumor and innuendo. Justice would not be served if a conviction is made based on "feeling" and not cold, hard evidence.

"The parents have been given credibility, all doubters aside, all previous consensual affairs aside... by the prosecution"

It is not up to the prosecution to be giving ANYONE credibility - a person's credibility should be based on their honest, forthright cooperation and lack of incriminating evidence - both scenarios in which the VanDam's failed miserably.

"The prosecution believes that danielle was ripped away from her parents home by criminal means"

And it is the prosecution's job to prove that this indeed happened, and how it happened. And LE's job to collect ALL evidence to rule out possible other subjects - both scenarios in which Dusek and the LE faied miserabley.

"Jennifer shen said the fibers found on both danielle and in the mh...were placed on her at or near the time of death. That could not have happened weeks prior to.."

Just as some would like to say that "Bug Evidence" is not exact - Forensic fiber evidence is definitly NOT an EXACT science either - it is a science based on "similarities" alone, to discount one and not the other shows extreme bias.

" not all doubt has to be removed to convict"

Not ALL doubt has to be removed, just reasonable doubt

[Freedom2specul8]

never mind about the gist of the post..I saw a copy over at the smoke filled, steam coming out of the ears "room"..

(I'll leave it at that)

[domestice]

I hope so..probably in the reems of testimony somewhere.

[sawsalimb]

I'd say that it could,since I've accidentally swallowed my fair share of birdshot that didn't quite get pulled out of bobwhite quail and mourning doves,before they entered my end of the food chain. If my digestive tract can handle that sort of thing,a coyote's innards wouldn't be upset by it.

However,I doubt that the girl died of a gunshot wound,although it's certainly a possibility. At this point,I don't think that much could surprise me.

[Dave_in_Upland]

I wish the jurors could chat on a forum with the witnesses to get their questions answered... sigh

With no lawyers around to muddle the facts, and interested parties are allowed to lurk.

[domestice]

reems...rheems..reams..rheams...aaahh whatever...:-)

[Freedom2specul8]

Thanx a bunch mouser, that helps so much. But what about blood in her room? How do we explain the lack of it if she was shot with a '22?

I recall being taught that the best weapons for 'defense' would not include 22's....because while they could just "bounce around" inside, they wouldn't cause enough damage to stop a big guy..

[sawsalimb]

I recall being taught that the best weapons for 'defense' would not include 22's....because while they could just "bounce around" inside, they wouldn't cause enough damage to stop a big guy..

I doubt that there was a firearm present in the VanDam household,but if there was one,the chances are that it would be a .22,simply because .22's are so common. Again,just guessng.

[domestice]

Thank you for this concise explanation, Capps. You mentioned the fluid in the lungs, which also happens while the body is decomposing. If its not too bad to explain, what would be the other reasons?

I still kinda think the .22 casing was put there by someone who knew the investigation was going, how do I say it, ...not honestly.? Just speculation.

[domestice]

Gotta go take my walk....I'll catch up later!

[John Jamieson]

I still don't believe she was frozen, just refridgerated. Freezing should leave behind cell damage that would be detectable by the lab, if good science was done. (but it wasn't. I'm very disappointed by the amount of info that has been available from the body. Somebody hidding something.)

[sawsalimb]

I wish the jurors could chat on a forum with the witnesses to get their questions answered... sigh

With no lawyers around to muddle the facts, and interested parties are allowed to lurk.

OK,this post is off on a tangent,so ignore it if you wish. Dave-you know,you've raised a very good point,and I wouldn't mind seeing some experimentation along those lines. Maybe the people who do the binding arbitration in civil cases could do something like that,to start with,since that process is already privatized to a large extent. If everyone agrees in advance,and no lives are at stake,it wouldn't(IMO) be a bad thing to try.

[Alamo-Girl]

Agreed! Thanks for your post!

[CAPPSMADNESS]

Freepmail for you!

[itsahoot]

Lori Lee Farmer.
Michele Guse.
Doris Denise Milner.

For more than a month in the summer of 1977, CBS News anchor Walter Cronkite read the names of those three little girls every night on the evening news while law enforcement officers combed the hills of Mayes County for their killer.

The gruesome details of the crime appeared on the front page of nearly every newspaper in the country.

“Monday Morning Murder” read the Los Angeles Times.
“Girl Scout slayings shock Bible Belt,” echoed the Washington Post.

Summer camp enrollment across the United States plummeted as parents panicked. Their worst fears had come true.

Two of the girls, Farmer and Guse, were found, still in their zipped up sleeping bags, on the ground about 150 yards from their tent.
Milner was found naked from the waist down, her mouth and hands taped with black electrical tape behind her back.
All three had been sexually assaulted.

The only things left behind by the suspect were a bloody footprint, a roll of electrical tape and a green six-volt lantern found at the scene.

In the days that followed, hundreds of FBI agents, state and local law enforcement officials and more than 500 civilian volunteers flocked to the area to help look for clues Twenty five years after the three girls, ages 8, 9 and 10 were found, the community of Locust Grove isn’t the same.

The 410-acre camp named in honor of H.J. “Scotty” and Florence Scott (Tulsa Boy and Girl Scout volunteers who donated 24 acres to open the camp in 1928) was closed immediately after the murders and in recent years was sold to members of the Rowland family, who have renovated the swimming pool and many of the buildings in hopes of making it a campground again.

“We were not unlike any other camp before the murders, but we woke up in a different world that next morning,” said Judy Ward, Magic Empire Council of Girl Scouts spokeswoman in a 1997 interview with the Tulsa World. “You don’t lose three girls and think it’s going to be camp as usual.”

Although the surroundings have changed, many of the faces haven’t.

On any given day, the Girl Scout murders are still discussed over coffee and eggs at Cook’s Family Restaurant, much as it was 25 years ago when the crime occurred.

“We still get phone calls from time to time about the case,” said District Attorney Gene Haynes. “But they’re getting fewer and farther between.”

Gene Leroy Hart, a Locust Grove football legend charged -- and later acquitted -- of the crime, died 23 years ago in prison while serving an unrelated sentence. Several members if his immediate family -- including a son -- still live in the area.

Hart, who was 33 years old at the time, grew up in the area and was already on the run when the murders took place. He escaped from the Mayes County Jail four years earlier with fellow inmates Larry Dry and Aaron Rice.

Following a statewide manhunt which lasted more than 10 months and included psychics, tracking dogs, SWAT teams, helicopters, and a hefty cash reward, Hart was captured in a southern Cherokee County woodcutter’s cabin on April 6, 1978.
He maintained his innocence until his death on June 4, 1979 of a massive heart attack and was never convicted of the crime.

Ten years after his death, the FBI used deoxyribonucleic acid testing in an attempt to close the case, but when the Oklahoma State Bureau of Investigation tested five DNA samples taken from the murder scene, only three of the five samples were similar to semen samples taken from Hart’s bedsheets while he was behind bars.

“Hardly convincing wouldn’t you say?” said attorney Garvin Isaacs, who led the Hart defense team during his 1978 trial.
Pressured by D.A. Haynes and State Sen. Stratton Taylor, the OSBI tested the samples again last month using the latest DNA technology, but the tests were inconclusive again, according to lab technicians who said the samples have deteriorated.

“I used to think we’d find out what happened, but I don’t know anymore,” said Sheri Farmer, a mother of one of the victims. “I still have hope, though.”

http://www.mayescounty.com/2002/features/06-10-02/

---

They decided this guy was guilty from the start but they didn't prove it in court, nor did they prove it with the DNA, but still the Oklahom Crime Bureau and the Local Sheriff insist that he did. Gene Leroy Hart's real crime was that he broke out of the Shreiff's jail. Which is why he died in prison. I was called for that jury. So yes I am a little skeptical of this case.