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.
It might. But personally, I expect the jury to concentrate on the kidnap/murder, and treat the child porn as an extra charge. If they find him innocent of the kidnap/murder, they'll probably find him innocent of the porn too, just as a slap in the DAs face. If they find him guilty, they'll probably through in the porn too, since it's hardly worth arguing about at that point.
So, in the end, I don't think the porn will weigh heavily. Of course, I note they have called to examine the evidence, so maybe I'm just engaging in wishful thinking.
Drew Garrett
That might be bad news for Westerfield. Assuming that the all think he is guilty and the defense asked them to look at specific things, I would be sure to do that before my final decision. If however I thought he was innocent I wouldn't need to take a special look at it.
Possible but I would think that if the bug evidence was a slam dunk then why bother with the fibers or at the very least review the bugs first.
We'll be there...give it time.
sw
What did Dusek ask them to look at? I thought he was just telling them to use their imaginations, go along with peer pressure, and hang DW themselves...
Drew Garrett
While both Faulkner and Haskell said that yes, flies would take advange of openings created by coyotes to lay eggs, both always mentioned the urogenital or vaginal areas as also being a prime egg-laying site when answering that question. Haskell further stated that if, for some reason, the coyotes waited two weeks to "open up" the body, the newly-exposed underlying organs/tissues would be too decomposed at that stage to be attractive to flies as an egg-laying site. Haskell also said it would be strange for coyotes to wait so long to feed on the body, as a mummified body in such an advanced state would not be so attractive to them. Coyotes normally go for a fresh body.
Conclusion: In the unlikely event, that for some strange reason, both coyotes and flies were not attracted to the body for some two weeks, and then coyotes came and "opened up" the body at that point, there would have been no blow fly larvae in the body at all -- the flies would not have laid eggs in a body whose external areas were mummified and whose internal regions were in such an advanced stage of decomposition. Only cheese skippers and the like would have been attracted at that point, not blow flies.
This is the part of Haskell's testimonly I find EXTREMELY compelling:
Haskell: I'VE SEEN THE GREEN BOTTLE FLY PHAENICIA SERICATA AND ANOTHER SPECIES RELATIVE OF THAT GREEN BOTTLE FLY, THEY COME IN ALMOST IMMEDIATELY. BUT AFTER THE FIRST DAY OR DAY AND A HALF OF DECOMPOSITION, WE DON'T SEE THEM ANY MORE IN THE ATTRACTABILITY AND THE BLACK BLOW FLY THEN COMES IN AND COLONIZES ON SUCCESSIVE DAYS BY LAYING EGGS. SO, YOU KNOW, THAT FLY, THE GREEN BOTTLE FLY, IS A VERY OPPORTUNISTIC -- HE HAS TO COME IN OR SHE HAS TO COME IN AND GRAB THAT FOOD RESOURCE IMMEDIATELY. THAT'S HER SURVIVABILITY FOR HER OFFSPRING. AND AFTER A PASSAGE OF TIME, I WOULD NOT HAVE EXPECTED PHAENICIA SERICATA TO HAVE BEEN THERE IF THE BODY HAD EXPERIENCED MUCH DECOMPOSITION AT ALL.
Q: AND YOU DID FIND PHAENICIA SERICATA THERE, DIDN'T YOU?
A: DR. FAULKNER DID OR DAVID FAULKNER DID.
Q:SO THAT'S INCONSISTENT WITH THE NOTION THAT THE BODY WOULD HAVE BEEN DEPOSITED SAY ON FEBRUARY 4TH OR FEBRUARY 3RD OR FEBRUARY 2ND, IS THAT RIGHT?
A ABSOLUTELY.
Taa Daa!!! The body had not decomposed past 36 hours when the green bottle flies laid eggs in it. There were maggots of this green bottle fly present in the body at autopsy. THIS IS THE CLINCHER! I doesn't matter what any ants or coyotes did or didn't do -- if the body had been older than 36 hours when first accessible to insects, THERE WOULD HAVE NO LAVAE of this fly!!! (I suppose freezing/cold storage of the body could be argued, but it certainly couldn't have been placed there by DW in any case.)
That could be true if they don't think it's a motive. If it is child porn, and i have no reason to believe it isn't at this point..it would be a travesty to let that charge go--even if they find him innocent of murder.
I was visited by federal agents and I never said a word, I only nodded my head no that I wouldn't answer questions. I also had a witness sit with me and take notes. I asked her to make a summary of what was said.
Then I hired a lawyer. He was shocked (and thrilled) I never said a word. Even though I was innocent I could have been targeted.
We -- a Free people seeking the Blessings of Liberty have chosen -- by necessity of securing those blessings and keeping our freedom -- "Presumption of Innocence"!
Good point.
Disclaimer: Opinions posted on Free Republic are those of the individual posters and do not necessarily represent the opinion of Free Republic or its management. All materials posted herein are protected by copyright law and the exemption for fair use of copyrighted works.