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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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what kind of a world do we live in when a lawyer can decieve the public and the jury about someone who could do something so dispicable to a child. the guy knew what he did, and yet continued to drag this poor greiving family through the mud. I hate this lawyer and I hope he does get disbarred!
This senario is not likely. I do not believe that Westerfield had any intention to confess. There is no credible information about this fact. The only thing you have here is a rumored plea bargain offer that is absolutely a normal practice and is usually offered by the procecution.
IE: "Look here MR. Atty., we have all this evidence, we know your client is guilty so why don't you tell us where the body is so that we can bring closure to the family. We will not go for the death penalty in return."
My contention is that this is all that happened here and Brilliant Bill O'reilly has stuck his foot in his mouth again!
Say that you are an honest, moral person who happens to be a defense lawyer.
You want justice. Are you going to abandon a client because you THINK the MIGHT be guilty? No. But you're going to insist on the truth. You're going to make the prosecution prove it's case.
But say you come across a defendant who says "look, tell the DA I'll tell 'em where the child's body was dumped if they'll drop the death penalty. We'll talk about maybe 20 years or whatever. Offer 'em that."
So you do, and then the body is recovered. What do you do then?
No, sorry, you don't proceed along trying to get your client off. You don't try to do so by LYING. You KNOW he did it; he's told you so. So you're supposed so serve some sort of "greater good" by pretending that you really think some one else did it?
Sorry, this is just an untenable side of this argument. You people are trying to make this a noble thing, and it's not. It's just SLEAZY.
You just don't get it. This rule of conduct 1) does not proscribe punishment if violated, ergo is unenforceable and inconsequential, 2) refers to lawyers, not DEFENSE LAWYERS, 3) does not state that posing fabricated alternate scenerios is an artifice or false statement.
See, if you were an attorney, this would be so simple.
The plea makes me sick only because they used a child's body as a bargaining chip. Nevermind there were grieving parents and hundreds of police man hours involved. Yeah, they were just doing their job. But that doesn't mean I have to like it. ;)
Remember, these are attorneys we're talking about. After the conviction of Avila of murder, the attorneys of the previous case, as well as the most recent, had some coffee, set a tee time, and checked their savings accounts.
In short, its just a job, man, just a job.
Oh yes it is. I suggest you hunt some facts before piping up on these matters.
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