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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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Ah, but it does. If you were a lawyer, then you would know that ethics and morality can be easily twisted to serve your own needs, pet theory, or client's interests. In short, a lawyer can and does rationalize anything and everything to do his/her job.
This is what is so infuriating when discussing a topic with one; he/she will take one side of an issue and spend forever defending it, debating it. Right and Wrong has nothing to do with WINNING the debate, discussion, argument, or defense of a client's position. Get it?
:-)
I would think the defense lawyers, who knew the truth, would be on the short list for a killin'.
Getting him off, could have been signing their own death warrant.
Precisely why I am not a laywer. I couldn't live with myself, let alone do a job, where I am forced to compromise my own ethics and morality. I'll stick to web design... ;)
See, if you were an attorney, this would be so simple.
(1) and (2) are false. The rule applies to all lawyers, and carries penalties including disbarment. (3) is correct. A lawyer who is not a witness can make arguments as to inferences from the evidence without violating the rule. What the lawyer cannot do is lie about something in his personal knowledge (e.g., ask for a mistrial by falsely accusing the DA of not giving him a required notice) or offer false evidence (doctored documents, a witness he knows is lying, etc.)
Westerfield was also charged with (and found guilty of) possession of child pornography.
The defense tried to say it was his 18 year old son's!
The prosecution was put in the position of having to call the son to the stand to testify, whereupon he had to testify that he did view some pornography, but it was of adult women, not children.
That is what the defense did to Westerfield's own son.
He said it during the sentencing, not the trial.
Howard Weitzman was on O'Reilly just last night! What are you talking about?
I disagree. O'Reilly is dead on in this one. The legal system is unworthy of existence if it seeks to protect a child rapist and murderer. I don't really give a rats a$$ what the law says. If he admits his guilt to the defense, the case should stop right there and the bastard should be sentenced to death. Where has the morality of this country gone, anyway?
Perhaps the witnesses didn't testify falsely. But he did present witnesses to try to mislead the jury.
For example, they presented a computer expert to try to imply that Westerfield's son was the porn collector.
Also Feldman produced pictures of investigators wearing orange in order to lead the jury to believe those items were the source of incriminating orange fibers found on the victim and in Westerfield's environment.
The prosecution, in rebuttal, refuted these points. But the fact remains the defense was spinning a tale for the jury they knew to be false.
From Kim's link in #122.
Looks like he was OJ's first lawyer.
Weitzman, Howard
Simpson legal counsel. Withdrew in the opening days of Simpson case, citing his close personal friendship with O.J. Contends police barred Simpson from having attorneys present during his questioning the day after the murders.
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