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."

[John Jamieson]

I feel much better about the verdict (even though I still disagree with it) knowing the DW had an excellant, strong defense. Had he had a very weak defense, I'd be far more upset.

The OJ case was a far better example to use to attack "scum bag" lawyers.

[bvw]

Here's my talking points.

• It's an outrage that anyone who might be guilty is still walking around free, threatening our very lifes and children.
• Lock 'em all up, I mean, what the heck do we have prisons for.
• I say -- get the police out there NOW! -- and let's start pulling these wackos and perverts off the streets now.
• The current process is corrupt, abysmal.
• It only allows liars and abusers another chance to lie.
• Get those paddy wagons Department of Corrections prisoner buses out on the streets today. No more waiting around for this sick "liberal" gimmick called due process.
• We've gotta sweep the streets clean today!

It's an outrage. And I really don't want your pithy *moronic* comments anymore either. Why do you *idiots* even bother. That's another outrage.

Tune in tommorrow -- we're coming back with yet more outrageous outrages in YOUR town.

--- Bill O'Reilly, outraged.

[John Jamieson]

"sick "liberal" gimmick called due process"

WOW! I just discovered that conservatives don't believe in due process! WOW!

[bvw]

Just for the record: that was a satire.

[EllaMinnow]

Gloria Allred wasn't a Simpson lawyer.

[EllaMinnow]

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One juror says 'I wanted to find this man innocent'




Girl's prints, blood evidence swayed panelist, though

By Kristen Green
UNION-TRIBUNE STAFF WRITER

September 19, 2002

A juror in the David Westerfield trial said yesterday that he went into the case hoping to determine the accused killer was not guilty.

"I wanted to find this man innocent," Raymond Winkowski III told The San Diego Union-Tribune. "I was looking for one piece that just didn't fit."



Raymond Winkowski III, a juror in the Westerfield trial, was interviewed on Fox's "O'Reilly Factor" last night in New York.

Winkowski, the third juror to speak at length about the deliberations, said in a telephone interview from New York City that he considered all the evidence before he decided Westerfield had kidnapped and murdered Danielle van Dam.

For him, the compelling pieces of evidence were Danielle's fingerprints in Westerfield's motor home, her blood on his jacket and her hairs in his bed.

"I couldn't get over the fact that her fingerprints were in the motor home," he said.

Winkowski flew to New York on Tuesday for an interview on Fox's "O'Reilly Factor" last night. The show paid the airfare for the 28-year-old mechanic and his wife and picked up the tab for his meals and his Times Square hotel room, but he wasn't paid for the interview.

His father, Ray, said several television shows called his East County home last night, asking the younger Winkowski to stay a few more days in New York to be interviewed. But after being away from work since June, the father of two young children needs to get back to his job, said Ray Winkowski, who loaned his son several thousand dollars to help him through the trial.

Despite the financial difficulties he experienced, Raymond Winkowski, juror No. 12, said he wasn't in a hurry to end deliberations.

"I even felt in my heart if this takes a month longer I'm going to be here," he said. "I was in no rush to make this decision because I have a man's life in my hands."

Winkowski, like the other two jurors who have spoken about the case, wouldn't explain exactly what happened between 11:45 a.m. and 1:35 p.m. Monday that led the panel to decide Westerfield should be executed.

The foreman sent a note asking the judge for guidance, and then the jurors took their lunch break. After lunch, he sent another note saying they wanted to deliberate further. And then 10 minutes later, sent a third note saying they had reached a decision.

Winkowski said the jury had planned to ask Judge William Mudd to re-read instructions referring to judging Westerfield's character. He wouldn't say why they decided not to ask for the information.

But he said none of jurors discussed the case at lunch.

"There was no talking without all of us being in the deliberation room," he said.

The death penalty deliberations went on for parts of five days because, "everyone wanted to be comfortable with that decision. We wanted to see if the crime fits the punishment."

He said deciding to recommend the death penalty was more about the penalty fitting the crime than deterring child killers.

"It's so horrific," he said. "No remorse shown. No feelings shown."

Winkowski's father said his son was the perfect person to sit on the panel because he knew nothing about the case going into it. If his son reads any part of the newspaper, it's the sports pages, he said.

Raymond Winkowski was even more vigilant when the trial started. When he walked into his father's house, he'd go immediately to the family room and turn off the television.

"He was going to do this thing right," his father said.

Once, after golfing on a National City golf course, the younger Winkowski walked into the clubhouse, looked at the television, and then turned around and left. The Westerfield trial wasn't even on TV, but he was just being cautious.

Raymond Winkowski said he was surprised when he learned after the trial that Westerfield's attorneys had been negotiating a plea agreement on behalf of their client. But he said learning that didn't make him any more confident about the conviction.

"I was comfortable with my decision right there in the courtroom," he said

[cyncooper]

Gloria Allred wasn't a Simpson lawyer.

You are correct.

In fact, wasn't she retained by Nicole's family? She was very outspoken AGAINST OJ Simpson.

(I am no fan of Gloria Allred as a rule, but I remember her position on this very clearly)

[Jaded]

No, in the whole thing she was hired by the sister. NOT OJ

[Stone Mountain]

I never said "thought." I said "knew."

That's not the way I understood this exchange:

It's not the defense's job to throw a case which "probably" is guilty.

He doesn't have to "throw" it. If he has a shred of morality, he tells the judge that he cannot continue as attorney, on ethical and moral grounds.

The way I read this, you are saying that if an attorney has a shred of morality, he can't continue as an attorney if he has a client who is "probably" guilty. If you are saying that that instead of "probably," you mean "knows for sure," I don't have a big problem with that.

[bvw]

The juror's two statements -- (1) "I wanted to find him innocent." and (2) "I was looking for one piece that just didn't fit." are most interesting. Do you see that they demostrate a presumption of guilt? Both do.

He wanted to find him innocent? How can that be -- the innocence of a defendent in a criminal trial is assumed! That presumption of innocence is the starting point, and the required priority in decisions as to whether a thing that might indicate guilt one way or innocence another -- the innocent way must be followed, even if it is much less likely, yet in some way reasonably possible.

Rather than looking for a thing that "doesn't fit" to a presumption of guilt, a juror has to require that all things fit perfectly and have no alternative. To act as a juror in allowing that there is some theory of facts that would lead to a guilty verdict, and then proceed to look even most forcefully and painstakingly for something that just doesn't fit -- is NOT the way is expected by long established common law practise, by statute, by juduicical instruction and by oath.

[John Jamieson]

Sure sounded like O'Really to me!

[John Jamieson]

"I was looking for one piece that just didn't fit."

Oooooh, how about 4 bugsperts, or unidentified fingerprints?

[Commander8]

Disbar the dirtbags. They are a disgrace to the legal profession.

[bvw]

Did you get the "paddy wagons" bit?

[bvw]

I remember seing yesterday a comment to the effect that by Feldman's in court demeanor, that he "signaled" to the jury the guilt of his client. I know that happens in cases. Lawyers sometimes have to represent sleazeballs worse than Westerfield is claimed to be (and I am not making that claim, just noting it). It is nigh impossible for and defense attorney's "body language", tone of voice, spirit of presntation hour-after-hour of a trial not to say something regarding a defendant being represented.

It is a an emotional subtext -- it requires and varies in effect on all sorts of uncontrollable things -- a spousal fight at the lawyers's home may look bad for the defendant. It may be real -- the lawyer may be in absolute dread and fear of his own client for good reason.

Yet this signalling is all emotional. Aside from video or audio tape, it is unrecorded in the record, and tapes do not record it important nuances of it well at all.

I ask if a person should be found guilty -- even if he is (a hypothetical case, remember) -- on the basis of emotional signalling, where honest, unbiased reviewers of the written record would overwhelming find not guilty?

That is, should Juries be conditioned, expected, and welcomed to find for guilt based on emotion?

[Illbay]

I'm sorry I wasn't clear. Keep in mind that plea bargaining is the rule rather than the exception. This indicates that more than a few defense attorneys KNOW their clients are guilt.

I don't know what percentage of plea bargains fail and the case proceeds to trial. But in that event, either it means the defense attorney is willing to go on and defend someone he knows is guilty, or conversely he is lazy and willing to see his client plead guilty to a lesser charge just to get rid of the case.

Either way, it doesn't sound like defense attorneys keep justice near the top of their list of priorities.

[Illbay]

Do you see that they demostrate a presumption of guilt?

I see that you're clutching at straws to keep from appearing a fool for supporting this child-murderer.

Too late, by the way.

[John Jamieson]

No, sorry, must be over my head, unless it's an Irish thing.

[itsahoot]

--As a Catholic, he has spoken out against pedophile priests.--
-----•-----•-----

---

He has about as much knowledge of Catholicism as Usama Bin Laden

[bvw]

Saw the "Sand Pebbles" last night, first time. Great movie, except for the very end, which isn't up to the rest of the script, and was too preachy. The whole of the movie was a grand sermon, yet left an unescapably bad aftertaste for that hammy ending.