Experts see fertile ground for appeals In Westerfield Trail

The grounds for appeals in the David Westerfield case could cover everything from how jury summonses were sent at the trial's beginning to the unusual sequence of events that ended in 12 jurors voting for the death penalty.

Legal experts in death-penalty work said the way the Westerfield case was tried provides fertile ground for an appeal, which is automatic because it is a capital case.

The goal of the defense is to find a solid reason that appellate judges should throw out the guilty verdict or at least the death recommendation. If successful, such cases are sent back to the original courts for new trials.

Issues that could be raised in the Westerfield case, legal experts said, could be as visceral as the pornographic images of children shown in the darkened courtroom, or as tedious – though important – as the instructions Superior Court Judge William Mudd read to the jury on the law during both phases of the trial.

A study of death-penalty convictions nationally from 1973 to 1995 found instructional errors were the third most common reason convictions were overturned. The study of more than 5,000 cases found that 68 percent of the death decisions were reversed on appeal.

"The kinds of issues appeals courts really get into are the jury instructions and jury issues," said defense attorney Michael Pancer. "Those are key issues, because they taint the whole verdict."

Crucial area Some possible appellate issues, such as the admissibility of physical evidence or the testimony of some witnesses, prompted objections during Westerfield's trial on kidnapping and murder charges and were ruled on by Mudd. Those rulings can be targeted by a new set of lawyers, who can try to convince appeals courts that the judge erred.

For example, Mudd's decisions regarding the pornography found on Westerfield's computer in his Sabre Springs home could be a crucial area, said Marjorie Cohn, a professor at Thomas Jefferson School of Law.

Mudd initially allowed prosecutors to use about a dozen images after he weighed the value of the evidence against its potentially prejudicial effect against Westerfield.

Lead defense attorney Steven Feldman implied during the trial that the images shown in court were the only ones police found in Westerfield's home that could be considered child pornography or obscene. An angry Mudd, contending Feldman was trying to mislead the jury, ruled prosecutors could bring in thousands of other images.

Cohn said Mudd "flew off the handle" and might have made a mistake. "That would be a good appellate issue, of him letting it all in," she said.

Defense attorney Pancer agreed that the pornography issue could be pivotal. Lawyers could argue the images were so powerful that they affected the result. Jurors said the pornography provided a motive for the abduction and slaying of 7-year-old Danielle van Dam.

"The argument is going to be (that) the prejudicial value of the evidence outweighs the probative value," Pancer said.

Defense attorney Christopher Plourd, who has worked on eight death-penalty cases, said appeals lawyers could challenge the very system that gathers potential jurors.

Plourd said that so many people do not even bother to respond to jury summonses that the potential pool of jurors is not representative of the community.

"The demographics get skewed; you're not getting a fair cross section and that becomes an issue," he said, noting that Feldman raised the issue and Mudd rejected it.

Media onslaught Once the jury was selected and the trial began, other issues surfaced. The overwhelming media attention and publicity surrounding the case – on television and radio, in print and on the Internet – was unprecedented for the county.

Throughout the trial Mudd declined defense requests to sequester the jury. Instead, he urged the panel to "self-police" – to avoid reports on the case as they went about their lives.

There is no indication that jurors did not heed that admonition. Those who have spoken publicly said they had no trouble policing themselves against the media onslaught. But Cohn said an appeals lawyer could argue that Mudd should have been more assertive.

"This trial received more publicity than any other trial in San Diego," she said. "It was impossible to stay away from any discussion. Mudd put the burden on the jury to tell him if they wanted to be sequestered. He abdicated his judicial role to protect the jury."

There also are questions about the events that led to the panel's decision in the penalty phase. Through notes sent to Mudd, jurors indicated before lunch Monday that they were deadlocked.

But a note delivered as the lunch break ended, and before they were placed in the jury room to deliberate, said they wanted more time to talk. Ten minutes later, they announced they had a verdict.

Feldman asked for a mistrial, saying it appeared some jurors might have been discussing the case over lunch – a violation of a court order not to talk about it unless everyone was present in the deliberation room. Mudd denied Feldman's motion.

Finding out what happened will be up to lawyers and investigators as they speak to jurors. Sometimes, these interviews take place years after the case is over, said Justin Brooks, head of the California Innocence Project who has worked extensively on death-penalty appeals.

"I've gone back and interviewed jurors while doing appeals and found unbelievable things they will say happened in deliberations," he said. This includes considering information they heard or read that was not part of the trial, Brooks said.

One issue experts said likely will not go far on appeal is the suggestion that Feldman, by moving quickly to trial, gave Westerfield legally deficient representation. That claim, known as ineffective assistance of counsel, is made often in appeals.

Pancer pointed out that the law says that if an attorney makes a tactical decision – such as rapidly going to trial – it can't be attacked as ineffective assistance, no matter the result.

August 10, 2002 10 charged in U.S. in child porn ring
By Joyce Howard Price
THE WASHINGTON TIMES

Twenty adults have been charged with sexually abusing and exploiting children — including their own — and circulating photographs of the sexual activity on the Internet as part of an international child pornography ring.
"I've rarely seen crimes as despicable and repugnant as the crimes involved in this investigation. These crimes are beyond the pale," U.S. Customs Commissioner Robert C. Bonner, a former federal prosecutor and judge, said at a Washington news briefing in which he announced the charges involving 10 Americans and 10 foreigners.
He said more arrests are expected.
Mr. Bonner said "at least 45 children," between the ages of 2 and 14, were victims of sexual abuse and exploitation by the international "ring of pedophiles" uncovered by an investigation called Operation Hamlet. "Thirty-seven of those children reside here in our country," he said.
"What's particularly disturbing about this case is that the majority of the people who have been charged were actually the parents of and were sexually exploiting their own children. In many instances, parents forced their children to commit sex acts that were then photographed and posted on the Internet. With the power of the Internet, what may have once been an isolated crime became a global crime," Mr. Bonner said.
Eighty percent of the children were molested by one of their parents, usually the father. Of 15 defendants whose sealed indictments were opened yesterday in a federal court in Fresno, Calif., only one is a woman, and she is Danish, not American, a Customs Service spokeswoman said.
All 45 abused children have been removed from the care of those indicted, whether the offender was a parent, guardian or other caregiver. Most of the children are in the custody of another parent or relative or are in foster care.
"The people who engage in these kinds of acts, sexually exploiting children, especially their own children, should be removed from their children forever and incarcerated for as long as the law allows," Mr. Bonner said.
According to the indictment unsealed yesterday, the defendants referred to themselves as the "club." They circulated sexually explicit photos of children among themselves, e-mailed each other as to images of sexual poses they wanted to see, "and, in at least one case, exchanged children to be sexually abused and depicted."
In one case, the indictment said, a man requested an audiotape so he could hear crying by a child being spanked.
Charges of sexual exploitation of children, conspiracy to exploit children, and receiving and distributing child pornography each carry a minimum sentence of 10 years and a maximum of 20 years. Mr. Bonner said some defendants could receive 60 years if convicted of all charges against them.
The U.S. Customs chief said law enforcement authorities got on the trail of the child pornography ring last November when the nonprofit group Save the Children discovered "images on the Internet depicting a child, apparently in Denmark, being sexually abused."
Save the Children immediately notified the Danish National Police. The Danish police investigated the complaint and arrested a Danish man in connection with molesting the child whose picture he had posted on the Internet. "The child was his own 9-year-old daughter," Mr. Bonner said.
Police examining the man's computer "discovered a web of pedophiles throughout the world, many of whom were here in the United States," Mr. Bonner told reporters.
The U.S. Customs Service CyberSmuggling Center, based in Northern Virginia, got its first information about the case from Danish police in January and opened the Operation Hamlet investigation.
"This led to search warrants and arrests of 10 individuals in the United States — individuals that lived in California, Florida, Texas, Idaho, New Jersey, South Carolina, Michigan and Washington state," Mr. Bonner said.
Ten U.S. citizens have been charged since January, including the nine named in the indictment, Mr. Bonner said. The list includes chiropractor Lloyd Alan Emmerson of Clovis, Calif., who has pleaded not guilty; Paul Whitmore and Brooke Rowland, both of San Diego, who also have pleaded not guilty; Tracy Reynolds of Longview, Texas; Leslie Peter Bowcut of Burley, Idaho; Michael David Harland of West Palm Beach, Fla.; Harry Eldon Tschernetzki of Spokane, Wash.; John Zill of Greenville, S.C.; and Craig Davidson of Chanute, Kan.
One of the 10 Americans, Jeffrey Naimo of Killeen, Texas, has already pleaded guilty and was sentenced to 20 years in prison.
An 11th American, Sean Bradley of Reno, Nev., committed suicide after his arrest, Customs Special Agent Mike Netherland said.
Outside the United States, there were 10 more arrests. Six adults from Denmark, Switzerland and Holland also were indicted in Fresno yesterday. The Justice Department is seeking their extradition to the United States to face charges.
The six are Eggert Jensen and his wife, Bente, of Denmark; Jean-Michael Frances Cattin, Marcel Egli and Peter Althaus of Switzerland; and Dirk-Jan Prins of Holland.
Customs officials said four other foreigners were charged abroad as part of the joint investigation with the Danish police and others that also reached the United Kingdom and Belgium. They declined to identify the four.
In his remarks to the news media, Mr. Bonner reflected on the "rash of abductions, molestations and murders of innocent children" that have occurred in the United States this summer.
"America's most precious asset is its children, and our children must be protected at any cost. At the root of many child abductions and child murders and child sexual molestations is a twisted desire for sex with children. This desire of pedophiles is fueled by child pornography, which today, unfortunately, is more available than ever via the Internet," Mr. Bonner said.

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