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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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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 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. "
Calm down, now: Feldman actually was serving justice
September 19, 2002
So Steven Feldman knew. Beyond a shadow of a doubt.
The twitchy defense attorney knew David Westerfield was guilty as cardinal sin.
Hours before Danielle van Dam's body was found, Feldman and his co-counsel, Robert Boyce, were working on a plea bargain with prosecutors, according to unnamed Union-Tribune sources.
We give you the body; you give us life.
But divine providence led volunteers to the Sabre Springs girl's decomposing remains minutes before the deal could be brokered. Westerfield's leverage slipped to zero.
So a captive jury was subjected to tirades, tears, tedium, repellent images of deviant sex and the ravaged corpse of a child, swinging lifestyles, scruffy barflies, macabre bug science and a host of other reasons to wake up screaming in the middle of the night.
And now media heavy breathers are fuming that Feldman possesses less moral fiber than a Gila monster. How could he, the rant goes, "weave a web of deceit" when he knew – knew! – that the flabby, balding defendant was, in fact, a child killer?
How could Feldman have staged a four-month charade when he knew that his "doubts" were not only bald-faced lies but might – if by some demonic miracle they gained credence – result in liberty for a predatory ghoul?
I called Carlos Armour, chief of the North County DA's Office, for some calm legal advice.
This stuff happens, Armour said, very calmly.
A rapist says he'll serve 10 years for a string of assaults. The DA says no, you're in for 25. Neither side budges. OK, the rapist says, I'll take my chances at trial.
The scum's attorney, who's been pushing for a reduced sentence in confidential meetings, suddenly is obligated to claim in court that prosecutors have failed to prove his client guilty.
That's how the system does – and should – work, Armour said.
Why?
To guarantee cases get proven in court, he said.
Let's say Feldman did a slapdash job of defending Westerfield. Let's say the attorney failed to explore every feasible line of defense.
What happens then?
You've got it. Westerfield appeals – and wins another trial. The scabs on the healing wounds would be ripped off.
In 1997, Armour won a murder conviction against Danielle Barcheers in the stabbing death of Escondidan Betty Carroll. That verdict was overturned because her lawyer failed to present a mental-health defense.
The DA was forced to try Barcheers again several years later. (She was found guilty a second time.)
It's bad enough that Westerfield can pursue state and federal appeals while buying 10 years or more on death row.
In throwing all the available mud on the wall – "risque" behavior, blow flies and the other obfuscations – Feldman did his part in ensuring that the verdict will stick. (Of course, we pray the judge, jury and the prosecutors honorably performed their duty as well.)
It's counter-intuitive but true: Feldman, in forcing the case to be proved despite all plausible doubts, is as much a hero in this grotesque morality tale as Jeff Dusek, the rock-jawed prosecutor upon whose head laurels are being heaped.
For those who think Feldman a reptile without human feelings, I have a little theory about his body language.
A veteran reporter and I were watching the trial on TV. She observed that Feldman never touched Westerfield. Never established intimacy.
These days, defense attorneys often send subliminal messages to juries by huddling close with a defendant. See, they seem to say, he's human! (One lawyer recently kissed a convicted rapist on the top of the head – in the clear view of victims.)
In my limited TV view, Feldman seemed cold toward his client. He was duty-bound by the Constitution to fight, tooth and nail, for Westerfield's life.
But not to touch him.
A final question nags.
If Westerfield was willing to accept life in prison in a plea bargain, would the defense team have been well-advised to give up the ground it was destined to lose?
What if Westerfield had lumbered to the stand and confessed?
Yes, I killed her. I lost my mind, my life, my soul. Though I deserve none, I throw myself on your mercy. My only use on this planet is within prison walls. I could volunteer as a subject for medical research. I could teach job skills to inmates. If it were possible, I would subject myself to physical torture to show my remorse. What I can't do is undo what I've done. Never forgive me. Simply sentence me to what is just.
If I'd been on the jury and heard those sentences from the beast's lips, I'd have felt something.
I'd have been sorely tempted to give him life.
There is agreement that the role of the defense attorney is to force the prosecution to follow the rules and prove its case beyond a reasonable doubt.
The problem lies in the fact the defense lawyers apparently knew that he was guilty based on the efforts to plea bargain by offering information leading the police to the girl's body. In this situation, the laywers are obligated to defend their client but they cannot ethically produce confusing alternative crime scenarios that they know are false (e.g., implication of the son, and the mysterious third party that may have had access to the house owing to the parents life style, etc.).
O'Riley was over the edge but based on the newspaper accounts,lawyers were technically in violation of their duties, too.
Including:
Westerfield "date raped" a lady 12 years ago when they were both 38 yrs. old. Of course this lady also claims she was raped by a politician and her doctor among others.
Westerfield was seen at local "strip bars". No one under 21 allowed, however.
Westerfield said to a adult female neighbor words to the effect, "So you're the one with the treadmill". I guess this means he was watching her with his famous Binochs.
A guy said he heard screaming coming from Westerfield's MH on Feb. 2nd while parked at Silver Strand. The guy is also a convicted felon.
A woman said she saw Westerfield's MH at Dehesa on her birthday, Feb. 4th. Why she waited until after the body was found on Feb. 27th to inform police is a mystery.
If the most "basic principle" of our system of justice is to allow a defense attorney who knows his client to be guilty of the crime for which he's being tried to fabricate, make up, lie, and intentionally decieve a jury in an effort to win an aqutittal for his client, then.....
our system bites the big one.
Where is this in the Constitution?
Where did we degenerate to the notion that it doesn't matter if we're guilty or not, we still have a right, no make that a duty, to make every attempt to flim flam the system?
It like "if I can get the jury to free me somehow, I didn't really do it".
I understand everyone is entitled to a fair trail...I just don't agree with what a fair trail seems to have transmogrified to.
I am in agreement here. The Constitution giives you the Right to a Fair trial. Wouldn't Lying be considered unfair?
It is interesting that the San Diego Union-Tribune was suing Judge Mudd in court to release the secret hearing transcripts during the trial citing the public's right to know.
Then they turn around after the trial and print a story citing "unnamed LE sources". What about the public's right to know. This story is useless without a name.
This story reminds me of the ones that came out of the "Clinton War Room". And this is an election year for SD District Attn.
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