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Posted on 09/19/2002 7:03:56 PM PDT by Jalapeno
Fox talk show host calls for disbarment of Westerfield lawyers
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| By Harriet Ryan Court TV
The phones in the San Diego County Bar Association's offices rang nonstop Thursday morning. Nearly 100 callers with demeanors ranging from annoyed to downright irate told employees that they were calling at the urging of talk show host Bill O'Reilly to file ethics complaints against David Westerfield's lawyers.
"We had to change our voice mail the calls were coming in so quickly," said Sheree Swetin, the association's executive director, sounding exhausted and hastening to add that it was the state bar, not her office, that took such complaints. "These people are angry and we can't help them."
O'Reilly, the host of Fox News Channel's top-rated O'Reilly Factor, started the firestorm when he suggested Westerfield's attorneys, Steven Feldman and Robert Boyce, should be disbarred for trying to win an acquittal for their client when they knew, at least according to published reports, that he was guilty of Danielle van Dam's murder.
"How could two lawyers stand in court week after week and try to get a child killer set free when they knew, they knew the man had brutally assaulted and murdered a defenseless little girl?" O'Reilly asked on his show Wednesday night.
His charges stem from a report in the San Diego Union-Tribune. Citing anonymous law enforcement sources, the paper reported that the lawyers tried to broker a deal last February in which Westerfield would reveal the location of Danielle's body in exchange for a guarantee that he would not face the death penalty. He would plead guilty and receive life without parole. Both sides were about to ink the deal, according to the paper, when volunteer searchers found Danielle's body.
The discovery meant no deal for Westerfield, and after a four-month trial, a jury convicted him of kidnapping, murder and child pornography charges and recommended he be put to death. A judge will impose the sentence Nov. 22.
During the trial, Westerfield's legal team focused a harsh spotlight on the lifestyle of the 7-year-old's parents, Brenda and Damon van Dam, which included partner-swapping and group sex. Feldman told jurors the couple's sex life brought them in contact with unsavory characters much more likely to do harm to Danielle then Westerfield, a neighbor with no felony record.
Feldman also told jurors that science proved Westerfield could not have dumped Danielle's body by a remote roadside. He called a parade of forensic entomologists who said insects in her decaying body indicated her death occurred when Westerfield had an airtight alibi.
"This guy intentionally deceived the jury. That is not allowed," O'Reilly said Thursday night on Court TV's Catherine Crier Live. "You can't make up other scenarios and point the fingers at somebody else."
He added, "No American should ever talk to these two people again — that's how sleazy they are." A spokesman for Fox News said the host would be filing a formal complaint with the State Bar of California in the next few days. Complaints against lawyers filed with the state bar are confidential until after an initial investigation.
In San Diego, however, the legal community was rushing to the defense of Feldman and Boyce. Defense lawyers and former prosecutors pointed out that plea discussions are never admissible during trial and Feldman and Boyce would have been derelict as lawyers if they did not try to raise reasonable doubt in the case.
"He just doesn't get what the law is," said San Diego defense lawyer Bill Nimmo of O'Reilly. Nimmo squared off with the broadcaster Wednesday night on the O'Reilly Report and defended Feldman's decision to raise the parents' swinging and the bug evidence.
"You [as a defense lawyer] are not personally vouching for everything. You are arguing what the evidence shows, not what you personally know," said Nimmo. The evidence can be interpreted many ways and defense lawyers can seize on the interpretation most beneficial to their client.
"If the evidence is good enough, if the prosecution has strong enough evidence, what do you care what the defense lawyer knows? He'll get convicted," said Nimmo.
If Westerfield attempted to take the stand and lie about his involvement in the murder, then Feldman and Boyce would be required to tell the judge, but Westerfield did not opt to testify.
Nimmo and other lawyers pointed Thursday to a 1967 Supreme Court opinion in which Justice Byron White wrote, "Defense counsel has no compulsory obligation to present the truth." Instead the justice wrote, the lawyer must "defend his client whether he is innocent or guilty."
Each lawyer involved in the case — the judge, the prosecutor and the defense lawyer — has a different, incomparable role in the justice system, White wrote.
Nimmo, however, acknowledged that if the newspaper's report was true, "it's an uncomfortable situation." He said he likely would have withdrawn from the case.
"I probably would've lost some of my motivation to represent him as vigorously as Feldman did," said Nimmo. Monty McIntyre, the president of the San Diego County Bar Association, penned an op-ed piece in the Union-Tribune Thursday trying to explain to upset citizens why the defense lawyers were upholding the Constitution, not lying to the court.
He told Court TV Thursday, "Let's assume an attorney knows or has some reason to suspect his client is guilty, this is what the public is missing: The defense attorney is not the judge or the jury. He's there to defend the accused."
Marjorie Cohn, a law professor at Thomas Jefferson Law School, said, "The system worked. Let's not lose sight of that. Westerfield killed Danielle. He got a vigorous defense, and he got convicted anyway. That's the system working."
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Wrong. The principle of justice is to not convict the innocent. Justice is not a parlor game, a theatrical piece, or a process to keep lawyers off the street. It is about protecting society and punishing the guilty. Lawyers are officers of the court and they were not performing their legal responsibilities when they went around accusing others and trying to smear the parents of the dead girl. Their actions are totally inexcusable. In addition to which, lawyers are going way overboard in many cases, it is time to start telling them enough is enough.
Well, count me in as one of the people you consider incredibly stupid. I've held off on posting on these threads because of the vehemenence on them, but too many people think a fair trial means the guy has a 50-50 chance of getting off. Feldman had nothing but lies to work with. He had no case, other than deliberately making false accusations and innuendo. The prosecutor, defendent, and the defense attorney all knew this guy did it, and Feldman insinuated that the parents of a child who had been kidnapped, raped, murdered, and left to be gnawed on by Feldman's beloved bugs were the ones actually responsible for the child's death. In terms of defense, when a defense lawyer has absolutely no case without resorting to these types of tactics, the criminal justice system is not served by this type of conduct. All that has happened is that millions, yes millions of potential jurors who have seen the travesty of what pretends to be a legal system how it actually operates. When people are put on a jury, many of them will immediately discount defense attorneys because, according to the wisdom of the lawyers, anything that works is acceptable.
When a defense lawyer has no credible case to put forth for a client, the obvious thing to do is urge the client to plea-bargain or plead guilty and throw himself on the mercy of the court. If the client won't do that, it sucks to be him. Get another lawyer. If all lawyers would refuse to engage in this type of conduct, the legal system might start getting some respect back. The lawyerings here are so typical. "If the lawyer suspects" his client is guilty. The lawyer KNEW his client was guilty. No amount of shading, it depends on what the meaning of the word "is" is, or any other type of typical attorney misdirection can cover this up. Feldman KNEW. And he continued to do everything he could to cast suspicion on two people who were going through the worst nightmare any parent could imagine. I know people who lost children in car wrecks twenty years ago and still haven't recovered. These people probably had to have a closed casket funeral or cremation because their daughter had been left in the desert for a month. They stared at the casket, knowing what was inside, their daughter, who spent her last hours on this earth screaming and crying, begging Westerfield to stop, not understanding what was happening to her. Her body too damaged to be displayed. Organs eaten away by wild animals. Can't even give her a last goodby kiss in the casket, because David Westerfield wanted a few hours of fun torturing a child for his pleasure. But, of course, the only ethical thing for Feldman to do was trot out pictures of her body and go over in detail the damage done to her, and imply that of course, it was her parents fault. Bury your child and get accused of being responsible for her death by a guy representing the fiend who did it. Whole justice system will fall apart if Feldman is called on this one. If Feldman hadn't done everything in his power to get David Westerfield off, so he could find another seven year old girl to have "fun" with, the entire American Justice System would come crashing down in a pile.
All Feldman did was make it infinitely more difficult for lawyers who are defending truly innocent, falsely accused clients. The legal system will NOT fall apart if honesty becomes a standard part of the expected trial conduct. Boy, am I stupid. Too bad Westerfield didn't have a thing for lawyers like he did for young girls.
If a defense attorney got up in court and said "all right, I know my client is guilty...." and then refused to present a defense...
Said defense attorney would never get a client again. If you were accused of a crime (guilty or not) would YOU hire the guy?
If I were innocent, yes I would. The concept of a lawyer with integrity is intriguing.
Strange enough things have happened in capital cases before, that I am unwilling to allow the defense any less.
No, a fair trial in an adversarial system means every logical possibility of the defendant's innocence is pressed to the hilt. As was pointed out, this actually served justice, under the assumption Westerfield really did it. Had Feldman concluded Westfield guilty and mounted only a wet noodle of a defense, Westerfield would probably have won a new trial and with it another chance to go scot free.
And when after accepting mucho money from you, the attorney disbelieved you on the basis of predominant suspicion or some such rot... then what would your opinion be?
Feldman also told Mudd that he may have been guilty of "ineffective counsel under the Sixth Amendment to the Constitution." Ineffective counsel is a frequent issue on appeal.
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