Fox talk show host calls for disbarment of Westerfield lawyers('Cause He was Really Guilty)

Court TV ^ | Harriet Ryan

[Jalapeno]

Fox talk show host calls for disbarment of Westerfield lawyers

Defense lawyers for David Westerfield confer at trial.

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.

Bill O'Reilly

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."

[HiTech RedNeck]

Oh, and we still need a name. "Official sources" who dare not endorse it with their own name, and clarify that a proposal or counter proposal offering the body's location as a bargaining chip came through Feldman?

With such a horrific act as what Westerfield was accused of, the presence or absence of a body would make no moral difference in what he deserved if guilty.

[HiTech RedNeck]

And if so, sounds like detectives were all too ready to accept a foolish bargain. I would be among those who say if he is truly guilty, off with his head -- body or no body.

[HiTech RedNeck]

Oh, and as I have pointed out time and again, knowing where the body was may strongly implicate his guilt but it would not logically prove it to a 100%. As long as even (for the sake of argument) 1% possibility of innocence existed, his lawyers were within rights to push that possibility to the hilt in court.

[John Jamieson]

The very first line is wrong. The dates I've seen, show DW plead "not guilty" atleast a day before the body was found. Maybe somebody's exagerating.

[HiTech RedNeck]

One can change a plea. What this report is being claimed as meaning by O'Reilly and others is not logically impossible. I just want to see at least one or more primary parties step up to the plate to name themselves and put themselves behind an unequivocal statement. (Legally, I don't think they can, unless Westerfield concedes.)

[John Jamieson]

You're doing a great job, hang in there!

I've decided to also examine the possiblity that if DW did do it (which is different than was it proven), who was the accomplise? if you buy the 4 bugguy's calculations, as I do, somebody else is involved. There's also the little matter of unidentified fingerprints in the VD house.

One poster yesterday said she would have convicted DW on the one fringerprint in the RV alone, but the extra fingerprints in the vD house bothered her not a bit!

[John Jamieson]

I think press, poetic licience is more likely, but you could be right.

[John Jamieson]

Finding the body helped DW alot, but the jury didn't see it. The body was in the wrong place and dumped at the wrong time to fit the prosecutor's theory, which he stuck to anyway.

[HiTech RedNeck]

I don't. But you'll have to take that up with the author of the article or the SD police and/or sheriff's departments. Maybe somebody will give you the source's name.

I think everybody and their uncle and aunt who has questioned the government case all along would like to know that. I'd think it would come out quickly on the Internet if a statement could be paired with a name that takes responsibility for it.

[johnny7]

“Dead on Balls” is pretty accurate. Posi-traction is also good.

[Political Junkie Too]

Show us the money, with a detective's name signed to it -- that a proposal brought by Feldman to detectives contained such information. Before that, it is so much unfounded insinuation.

The same kind of insinuation that Feldman presented in trial as evidence that Westerfield was innocent?

-PJ

[John Jamieson]

You may remember that under our legal system the TOTAL burden of proof is on the prosecution. The defense is required to prove nothing. I believe that this system was purposeful.

[HiTech RedNeck]

Who else may have handled Danielle or her body... only God (and probably, David Westerfield) knows.

[Jrabbit]

John, just popping in to say hi, and congratulate you on your new grandson! I don't post around here anymore, but do keep up with you. Again, congratulations:)

[John Jamieson]

I think the best bet is Brooke L. Rowland, but there are lots of other possibilities.

[HiTech RedNeck]

Feldman has the right to insinuate that. The detectives may have a right to insinuate the opposite. That doesn't mean they aren't sleazes if they know they are wrong (and unlike Feldman -- who would only have a strong reason to suspect Westerfield's guilt -- the detectives WOULD know they are wrong).

[freebilly]

What O'Reilly is doing is attempting to undermine the most basic principles of our system of justice

Possibly, but what the attorney did was undermine the most basic principles of ethical behavior. May his lack of fundamental human decency not go unnoticed by either men or God.