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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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Who would Westerfield want to shield bad enough to be given the death penalty?
It's because a large portion of FReepers are very into "purity tests." O'Reilly is not a "conservative" by the standards of many FReepers. He espouses too many "liberal" views, or he's a "statist" or whatever.
I myself don't agree with him on some things, but I find his arguments always stimulating, and when he gets hold of an issue, unlike most of his softball contemporaries, he doesn't let go and he doesn't care what the p.c. spin would dictate.
His continual treatment of Jesse Jackson's empire of fraud is a great example.
I doubt that you are any more astonished than most of us are at those, like you, who continue to aggressively defend a child murderer. It's beyond silly, though. It's downright evil.
Come to think of it, that's probably not far from where it is now--except that the criminals get paid millions and are constantly held up as paragons by the same media that hail Bill Clinton.
Johnny Cochran comes to mind. Do you think he is reviled by most decent citizens because he makes an HONEST effort to defend the "innocent"?
It is not required that the "general public" be unemotional in their analysis of a heinous crime. In fact, I suggest that it is of BENEFIT for a prosecuting attorney to be "emotional" about the death of an innocent child at the hands of a monster. Passion often fuels extraordinary effort.
I for one am glad that our fighting men in Afghanistan remembered why they were there, and had the passion to do a very thorough job.
This "unemotional analysis" fraud is typical of someone who really doesn't want to believe this guy was guilty. Take away the emotion, and what's the big deal, really?
That was evident when Bill O'Reilly interviewed him on the air the day after Avila was captured.
I wonder how they live with themselves now?
Evidently the guy had no problem with it. In fact, he was too busy being indignant with O'Reilly's DARING to criticize him, to worry about the fact that he'd likely been accessory to a child's murder.
But of course, he wouldn't get paid and wouldn't get face-time in front of the camera if he did that, would he?
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