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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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I have a really hard time believing that.
After all, the defense attorney had the better argument, so all's well that end's well--even if that end is a child brutally assaulted and murdered, her body left for the buzzards.
What a bizarre way of thinking. No wonder so many people today believe there is no justice.
That explanation stinks.
Good. Then invent the rule. The truth must rule our legal system, not lawyer schemes.
First of all, the fact that a plea bargain was offered by the procecuters was reported at the time but was buried by the finding of the body. (I'll be damned if I can find a article about it) I believe it was more in the form of a rumor but this type of plea bargain is normal and not at all unusual. The defense, by law, must present the plea bargain to the defendant who can accept or deny it. This is exactly what they did. They did not have time to do a formal denial because the body was found and the bargain was moot. This is point number one................
Secondly, lawyers do not and never have been required to believe a client is innocent in order to defend them. There are dozens of precedents for this and many supreme court decisions affirming the rights of even guilty defendents to obtain counsel and a advocate lawyer.
This whole arguement is a non-event, a bogus emotional bunch of tripe that has absolutely no chance of going anywhere.
I posted this to you because you seem to be upset by the lawyers advocacy of his client. There are others who feel the same way and I did not single you out for any particular reason. I simply know that you are all wrong.
There is a VAST difference between not knowing the guilt or innocence of your client, and knowing that he has a body to deliver up as a bargaining chip.
Those who can't see that are hopeless.
A matter of perspective. This plea bargain, as all plea bargains, originated from the procecution, not the defense! There is no way the defense would have advocated it! The slant on this story is ludicrous.
Secondly, it would be far more likely that a lawyer would face disbarment for not providing a defense for a client and not the other way around.
This is what O'reilly and yourself do not see.
Where is the confession?
There was no confession because with the absence of a body, the defense had the upper hand. There would be no way in hell that the defense would have advocated this rumored plea. It came from the procecutors to facilitate the finding of the body.(evidence)
This whole thing is the most ridiculous BS I have heard this year.
I am sure something else will top it soon though.
O'reilly continues to amuse me with his rants.
O'Reilly is the only one on TV I've seen take on Rev. Jesse J. As a Catholic, he has spoken out against pedophile priests. He has shown outrage at the horrible murder of little Danielle and how Feldman lied to try to get this dangerous pervert off.
I don't agree 100% with him -- there is no one I agee 100% with and that includes my husband. Of course, O'Reilly is effective and a number of those positing here are on the weird left. A while back a Chris something went ballistic every time someone even implied anything negative about Chelsea. Then there were those raving how wonderful strippers are.
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He confessed to his lawyers, which is why they were in the process of of a plea bargain- whereabouts of the body in exchange for no death penalty. |
| Where does it say that? "His charges stem from a report in the San Diego Union-Tribune. Citing anonymous law enforcement sources, the paper reported that the lawyers (Which lawyers? Who initiated this deal? How do we know they were "ABOUT TO INK THE DEAL"?) 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." |
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