Posted on 09/19/2002 6:19:39 PM PDT by alexandria
By Greg Moran UNION-TRIBUNE STAFF WRITER
September 19, 2002
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.
And many, many areas in between.
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.
Appeals are largely fought over finer points of the law, the experts said.
"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.
Several issues related to the jury also could be raised, experts 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.
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