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.
No.........it is not odd at all. I love how you consider yourself such an expert, but continuously demonstrate the contrary.
If you lived in this area, you would realize that saying ANY bar patron went to Incahoots is like saying a five year old goes to McDonald's.
Uh-Oh, she's on to us !
"> "Remember to wear your boots To In Cahoots. "
Latex gloves sold separately.
Kudo's to Jim Rob, AM.
It's a great idea and will probably end up being one of the most popular forums on FR..
sw
If you think there is bickering going on here, just imagine what it must be like in the jury room.
The longer the deliberations go on, the more likely it will either be a conviction or a hung jury; with my money on a hung jury. I suspect at least one juror who simply will not be budged from their position that bugs don't lie.
There may be at least one juror who will simply look at the fiber, hair, and DNA (whether it is blood or not) and conclude the bug guys must be wrong without considering the fact that the prosecution cannot prove when this evidence was deposited.
If the jurors had access to the previously sealed documents that Mudd is now releasing, those jurors voting to convict would clearly see that DW was hiding nothing other than the porn stuff, which should have been excluded as being too prejudicial and no evidence that it was child porn.
I also believe that if there is a conviction on the kidnapping/rape/murder charges, DW will be granted a new trial based on the excluded evidence, abuses of discretion by Mudd, his failure to sequester the jury, and faulty jury instructions.
Mudd's instructions to the jury (if I am summarizing correctly) that if the they find beyond a reasonable doubt that DW kidnapped Danielle, they must also conclude that he murdered her; and if they find that he murdered Danielle, they must also find that he kidnapped her. This makes no sense at all (if these were the instructions).
There is zero evidence that DW was ever in the VD home. IF DW kidnapped her, she was not in the VD home when it happened; but to admit this possibility would destroy what little case the prosecution has and would also force th SDPD to start looking for other suspects.
An appellate court could also reverse a conviction for the simple reason that a guilty verdict would have to have been based on emotion, and not the facts. Unfortunately, an appellate court is not likely to completely reverse a conviction. At best they will vacate the conviction and remand the case back for a new trial.
I think a guilty verdict on the porn would be reversed since there is simply no evidence that it was child porn. If it was, why is the SDPD not chasing down the owners of the sites from which it was downloaded? This would be pretty much a no-brainer for an appellate court. If this were to happen, and the prosecutor could not introduce the child porn stuff in a new trial, the prosecution would have an almost impossible time in a new trial, absent new evidence of DW's guilt, if that new evidence could even be admitted. The state gets one shot at a defendant; no more!
It is also my opinion that Mudd is doing everything he can to help the prosecution get a conviction or at least a hung jury so that the state can get another chance to try DW; or he is doing all he can to help the county avoid what might be a very large civil rights lawsuit by DW. A hung jury or a conviction would make DW prevailing in such an action much more difficult, if not impossible. Mudd's remark that Feldman was 'stating a fact not in evidence' during Feldman's closing arguments which was followed by a sidebar could very well be reversable error even though Mudd told the jury to disregard his comment. On the other hand, that ill-advised comment may highlight Mudd's obvious prejudice agtainst DW.
I think it is fair to suggest that if DW is found guilty, there will be another trial. If the jury is hung with a large majority favoring aquittal, the prosecution may or may not re-try right away depending on the comments of the jurors after the trial if they agree to be interviewed by either the defense or prosecution.
If nothing else, there are a few lessons people should take from this case:
1. If you think for even a second that you might possibly become a suspect, consult an attorney before you talk to the cops; and, if you have no reason to think you might be a suspect, you are wrong! If you openly cooperate and the LEA has no other suspect, you become the suspect because you are all they have. I've seen it happen.
2. Too many LEAs and prosecutors are dishonest and don't care about justice. All they want is a conviction and they don't care a bit if the accused in innocent or guilty once they get an indictment. They will twist even the most innocent of statements into a virtual admission. If a LEA wants to ask you a few questions, simply ask if they have an arrest warrant, a search warrant, or a subpoena. If not, tell them to go get one if they want to talk. If they say you are not a suspect, they are lying! Everyone is a potential suspect.
3. LEAs do plant evidence (I am not saying it happened in this case,but it could have). Just look at how 'sloppy' the SDPD was in this case. They did not photograph (maybe a polaroid, but not 35mm as there were supposed to do) the alleged blood-stained jacket prior to cutting out the spot, a spot the lady at the dry cleaners said she would have noticed if it was there when DW dropped it off. The SDPD did not photograph (either polaroid or 35mm) the 1/4" alleged blood spot on the MH carpet before it was removed and destroyed in testing which I gather a defense expert was not given the opportunity to observe as required in most jurisdictions. The defense was never permitted to inspect the alleged scene of the kidnapping because the 'VDs didn't want evil in their house'. Who said the VDs had to be there when the crime scene was inspected by the defense? That Mudd refused this request is an outrage.
4. Generally, many defense attorneys are slimeballs, until you compare them to prosecutors. There are many, many honorable criminal defense attorneys whose real job is not to get their clients off, but to simply make sure the prosecutor proves that the charges are true. Prosecutors abuse their power by stacking charges, overcharging, withholding evidence that would tend to exonerate the defendant (which they are required to turn over to the defense. Do you really think Dusek wanted to get Faulkner's report on the bugs, and do you think Dusek would have turned it over unless it was demanded by Feldman?), lie with impunity to judges who will not hold them accountable, and knowingly put witnesses on the stand who they know are going to lie; all just to get a conviction at any cost, the truth and justice be damned.
Had DW followed this advice, he would not be on trial for his life. Absent evidence that he was in the VD home, the SDPD would never have been able to get a search warrant for his home, motor home, SUV, or his computer. As for his computer, what possible physical evidence could there have been on his computer that he killed Danielle. The sad thing is DW is probably an O.K. guy who wanted to help. If he was guilty, does anyone on this thread think he would have really been so cooperative? Give me a break! If DW was smart enough and, especially, lucky enough to have pulled off these crimes and transfer no forensic evidence to either the VD home or the dump site, he would have been smart enough to simply tell the SDPD he had no information about her disappearance.
On top of all this, does any reasonable person actually think DW all of a sudden kidnapped, raped, and murdered a child without other allegations coming out about past potential molestations/rapes? This, in my mind, is a huge plus in favor of DW. While past allegations would not be admissable in this case, this information would surely have found its way into the media.
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