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."

[Ditter]

So you are saying, DW was found guilty because Feldman signaled (emotionaly) to the jury that DW was guilty.

Would it be better for Feldman *not* to have signaled (emotionaly) & succesfully gotten a guilty man off, so that he could continue murdering little girls?

I am leaving your hypothetical mutterings out of this.

[bvw]

In this actual Westerfield case I think the Jury should have heard it all -- the K&O interview tapes, all the rumors in float, etc., the lawyers should have their run to raise questions and alternatives, there should have been no pre-quel plea bargaining phase and no "sentencing phase". I also think the trial should have been heard one or two counties away from SD to better get an impartial jury.

But that's perfectionist fantasy. In the real world, did Feldman "signal"? I don't know, and I don't know that Westerfield is guilty or not either.

That's why I asked for a hypothetical answer. Is it okay to say a man is guilty of a capital crime -- or any crime -- based on intuition and feeling? Or should some mininal logic and reason be necessary as well? How many trials are like Westerfield's & OJ's -- emotional, emotional, emotional, and how many like Captain Preston's or William Penn's, where emotional force was used to bring home logic and reason out of the current common wisdom and mob feelings, and Jury's acted and were taken far more seriously?

[Ditter]

Well I certainly agree that the jury should have heard everything, the neighbors, the patrons from Dad's, the friends at the VD's, even the pizza delivery guy. There is nothing I have heard so far, before, during or after the trial, that would lead me to think he was innocent. Every thing I hear make me more & more sure. Westerfield did it!

[HiTech RedNeck]

It clearly was a reference to Westerfield waging the terror upon Danielle.

If Feldman intended this, even in a slip-up, why wasn't there instantly a motion for a mistrial?

[HiTech RedNeck]

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

Oh if you're a prosecutor yes yes yes. If you're a defense attorney no no no.

[Amore]

Because, as somebody already stated on this thread, it didn't occur at trial. It occurred during the sentencing hearng.

[EllaMinnow]

Shamelessly filched from another forum - Feldman's defense of Madelyn Gorman:

"Feldman here. Two reasonable interpretations. We have doubts. The mother lovingly, lovingly walks her child across the parking lot, holding her hand to protect her.

The mother helps her child into the car. She glances around to make sure that no one is around in case they were followed since we know that many muggings occur in mall parking lots. A baby was snatched from a parking lot just recently. Two reasonable interpretations.

There is no evidence, none, on the tape that shows physical contact between the mother and the girl. During this time of year there are many insects which could have come into the vehicle...this vehicle had large doors. While the tape does show the mother swatting and swinging, this was a desparate attempt to keep a stinging insect away from the girl. Two reasonable interpretations.

The mother was successful in finally getting the insect from the vehicle. Again, the tape never shows any contact between the mother and the girl. It does show her trying to keep stinging insects from her face and body. Two reasonable interpetations."

[HiTech RedNeck]

This was not a good move for Feldman, since DW did not concede and he still intends to appeal. Unless he put it in a hypothetical context. ("Supposing my client to be guilty, then ....") Can there be such a thing as a "mis-hearing"?

[Illbay]

The only thing I remember about the movie is that it starred Steve McQueen (one of my all-time faves), Richard Attenborough and Candice Bergen (her first film role I think), it took place in China, and that "Sand Pebbles" was the nickname of their ship or gunboat or whatever, the "San Pueblo."

[Illbay]

It's all very well to claim that Westerfield's was an "emotional" trial--as if that's an option; few people can refrain from feeling some emotion when they are confronted with the most inimate details including photographs, etc., of a child's murder--but the one thing you people will refuse to do is come to terms with the fact that twelve separate people heard all that evidence, and reached the unanimous conclusion that Westerfield is guilty of the murder.

Those twelve people came to the unanimous conclusion that he should die for it.

And none of your semantics and word-parsing and cute little logic-juggling tricks is going to overcome that stark, staring, LOGICAL fact.

[Illbay]

Because the trial was over. This was in the penalty phase.

In other words, the conviction's there; let's drop the pretense, since we all know that he did it.

Just sickening.

[EllaMinnow]

#327

[Illbay]

Garbage and more garbage.

The O.J. verdict was based PURELY on emotion. The DEFENSE built up this big, emotion-laden case of the po' black man persecuted by the mean, mean white cops.

Every generalization I've seen you make falls completely to pieces on the most cursory examination.

[cyncooper]

That sounds like our Feldy.

[Wil H]

We are not talking about detectives, we are talking about an attorney who was using information that only a guilty party could possess as a bargaining chip. Hence either the plea bargain was not in good faith or the client was indesputably guilty.

[NYCVirago]

If Feldman intended this, even in a slip-up, why wasn't there instantly a motion for a mistrial?

Because it was after the trial was over!

[NYCVirago]

Was not a good move for Feldman, since DW did not concede and he still intends to appeal. Unless he put it in a hypothetical context. ("Supposing my client to be guilty, then ....") Can there be such a thing as a "mis-hearing"?

Are you ever going to give up your blind defense of David Westerfield? The jury found him guilty. His attorney basically admitted he did it. Even Westerfield's mother concedes he committed the crime. While a few pro-DW freepers are still defending him, the rest of the world realizes that Westerfield is a pedophile and murderer. These pro-Westerfield posters are like some of the Japanese soldiers in WW II still hiding in their caves, fighting on long after the war was over.

[HiTech RedNeck]

Hence either the plea bargain was not in good faith or the client was indesputably guilty.

An attempt to get a commitment from prosecution TO plea bargain conditional on a hypothetical concession certainly is in good faith. We have zero to demonstrate that Feldman offered anything to prosecution but a hypothetical ("IF my client shows you where the body is THEN will you not seek the death penalty"). This is not an admission of guilt or even a claim that the client could locate the body.

It appears, sadly, that the jurors who are so incensed about these alleged "lies," as well as a large segment of the public, have jumped to an unwarranted conclusion. Unfortunately for Feldman and DW, one cannot appeal on the basis of "members of the jury have now demonstrated themselves to be utterly stupid."

[HiTech RedNeck]

Are you ever going to give up your blind defense of David Westerfield?

Are you ever going to stop beating your husband?

[HiTech RedNeck]

His attorney basically admitted he did it.

When? How?