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. 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 ---- Judge William Mudd on Thursday denied yet another defense request to sequester the six men and six women deliberating David Westerfield's fate.
The judge also refused to pull the plug on live television coverage, though he said he rues the day he allowed the cameras in his courtroom.
In a brief morning hearing, Mudd also disclosed that the jury had asked to rehear testimony given by a San Diego Police Department criminalist about the similarities between orange fibers found in Westerfield's SUV and an orange fiber found tangled in the necklace of 7-year-old murder victim Danielle van Dam.
Jurors begin their seventh day of deliberations today.
Criminalist Jennifer Shen testified during the eight-week trial that it was possible for fibers to transfer between two people if they were "dirty dancing" or "huggy huggy" as Westerfield and Danielle's mom, Brenda van Dam, allegedly were doing while dancing at a local bar the night before the little girl disappeared.
Westerfield's defense had cited that as a possible explanation for the discovery of fibers found on Danielle's body that were similar to others found scattered around Westerfield's house, car and motor home.
Westerfield, 50, could face the death penalty if convicted of kidnapping and murdering Danielle. She was reported missing from her Sabre Springs home on Feb. 2. Her nude body was found nearly four weeks later under an oak tree in rural East County. Westerfield and the van Dams live two houses apart.
Westerfield also faces a misdemeanor possession of child pornography charge.
Westerfield's attorney, Steven Feldman, had filed a motion asking for the press to be kept away from the jury after a report that some jurors had complained they were being watched during a break. Feldman said the jury was "under siege" and he argued the "lynch mob mentality of the media" might be pressuring the panel to return a guilty verdict.
The judge said the press gave jurors their space after being asked, but he did grant Feldman's request to provide an area where the jury could have breaks without being scrutinized. Mudd also reported an internal investigation was under way after an alternate juror reported being followed.
Meanwhile, attorneys gave a glimpse into preparations being made if the jury convicts Westerfield. Mudd said there would be at least one or two days between the verdict and the penalty phase, when jurors would hear from Danielle's friends and family members. The defense team would also present witnesses in a bid to spare Westerfield's life.
Prosecutor Jeff Dusek said he has already turned over to the defense police reports, videos and other information he intends to introduce along with witnesses and was asking the same in return. He also said he had concerns about scheduling because some people would be flown in from out of town.
Mudd told Feldman to be ready to turn information over to the prosecution on Monday.
Contact staff writer Kimberly Epler at (760) 739-6644 or kepler@nctimes.com.
8/16/02
It makes no sense to me that DW would label the cds as "spectrum" if he was not writing business related files to them. I would think he would keep the default volume label as is. When I burn cds, it's an extra step to write over the default volume label.
I don't agree Miz, I think it will continue to be covered up because, if not, then LE will have to answer lots and lots of questions! And, they're not going to do that.
Newsflash, Val. His and half the other single people in San Diego. Nice try.
The Jury has asked to see the testimony of of the Medical Examiner Tyan Blackborn June 5-6th. He testified for the state.
They have also asked to see the testimony of David Faulkner July 10th, day 19 of the trial.
Beth on CTV who is at the court house says it is interesting that these are the two experts WHO ACTUALLY SAW THE BODY.
WITH VIDEOBy Alex Roth
UNION-TRIBUNE STAFF WRITER
August 16, 2002
Jurors in the David Westerfield trial spent part of their deliberations yesterday revisiting the testimony of a criminalist who linked a fiber on Danielle van Dam's body to fibers found in Westerfield's sport utility vehicle.
On the panel's sixth day of deliberations, a court reporter went into the jury room and read back the July 9 testimony of San Diego police criminalist Jennifer Shen. Shen said an orange fiber found tangled in the victim's necklace was virtually identical to orange fibers scattered throughout Westerfield's black Toyota 4Runner.
The jury requested that testimony Wednesday. It also has asked to rehear a tape-recorded interview that Westerfield gave to police and to see the pornographic evidence introduced at trial, among other things.
Westerfield is charged with kidnapping and killing the 7-year-old girl, who lived two doors away in Sabre Springs. The 50-year-old design engineer is also charged with possessing child pornography.
At trial, the prosecution presented evidence linking Danielle's hair, blood, fingerprints and fibers to Westerfield's clothing, house, motor home and sport utility vehicle.
The panel went home without reaching a verdict yesterday and was scheduled to return at 9 a.m. today to continue. The jury has now deliberated more than 26 hours, assuming it takes two 15-minute breaks and a 90-minute lunch every day.
Also yesterday, Superior Court Judge William Mudd rejected another request by Westerfield's lawyers to sequester the jury. Defense attorney Steven Feldman said he was afraid the jury was being harassed and intimidated by the media and might feel pressured to convict.
Mudd said he thinks the panel is "an extremely dedicated and hard-working jury that is going about a methodical evaluation of the evidence."
The lawyers also discussed what might happen if the case reaches a penalty phase. If the jury convicts Westerfield of all the charges, the trial enters a second stage in which the panel must recommend death or life in prison without parole.
If the case reaches a penalty phase, prosecutor Jeff Dusek reiterated yesterday, he plans to introduce evidence beyond what was presented during the first phase of the trial.
In the penalty phase, prosecutors are allowed to introduce evidence of certain other behavior in a defendant's background. That includes other felony convictions and "criminal activity by the defendant which involved the use or attempted use of force or violence or which involved the express or implied threat to use force or violence."
Under state law, prosecutors can present evidence of violent behavior in a defendant's background even if the behavior didn't lead to criminal charges. Westerfield's criminal record consists of a drunken-driving conviction.
Dusek said prosecutors have given Westerfield's lawyers police reports, investigative reports, tapes and a witness list, all of which "support what we intend to introduce" should the case reach the penalty phase. He also said some witnesses will be flown in "from elsewhere."
The judge told the attorneys there would probably be a break of at least a day between the verdict and the penalty phase of the case, although it was unclear whether Westerfield's lawyers would want more time.
Lawyers in the case have been ordered by Mudd not to talk to the media.
Feldman told the judge the defense hasn't decided which witnesses to call if the case reaches the penalty phase. Under the law, a defendant's lawyers can present character evidence to show their client's life is worth sparing.
Mudd also denied a request by Westerfield's attorneys to end television coverage. But the judge, who has been increasingly critical of the media, said he was "ruing the day I made the decision" to let the trial be televised.
"I say the odds are not good that it will ever occur again in this department," he said.
That should read Ryan Blackborn
Just wanted the admin moderator to clarify to those who believe every word mizs has to say..I HAVE NOT clicked the abuse button since the day I was accused of raping the victim.
Does anything roll off you? Can you take anything without tattling? When are you going to relax and only discuss the case? Let's keep it civil, okay?
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