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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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On the trip with his Florida friend to "look for Danielle", I was thinking it was just a day trip but recently read he nearly had a breakdown after returning and Brenda said something about it being so hard for him to be away from his family and not have their support. How many days was he gone? Where did he go and where did he stay? He also made some wierd statement when he returned about not finding anything and "I wish this whole thing was just over with". Maybe somebody remembers. I continue to think Damon is tied into whatever happened to Danielle.
Also regarding DW taking all the blame if there were other people involved, I remember some speculation about threats against his family if he talked. There could be something to that, maybe, maybe not.
Thanks for hanging in there with your investigation. Hopefully we can know the whole story in our lifetime.
These types of sexual killers working in tandem or cooperatively with one another is extremeley RARE. DW did this crime as the culmination of years of peeping, skulking, and fantasizing. He finally acted out his desires and you can bet he didn't invite any helpers who might interfere with his violence/control fantasies by wanting to do differently according to their fantasies (this is why they seldom seek partners in these crimes). He is the perfect example of escalating depravity.
Well, it seems to me that Westerfield would have had plenty of time and a better opportunity to peep, skulk, and fantasize over Danielle by getting closer to her mom.
Obviously, Danielle was interested in the pool. Inviting her and friends over for a pool party would seem like a first step, if Westerfield was the monster you describe.
This would make more sense than the "kill her at first sight" idiocy that some corrupt LE personnel contrived.
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Det. Kertson also advised me that a search warrant served on Bolander’s mailing address, 1093 East Main Street, El Cajon, California yielded as envelope addressed to Mikel Bolander, postmarked 1/1/95 Rochester, NY. This envelope contained a 3 1/2" computer floppy disk. Upon review of the information on the disk, Det. Kertson told me it contained a letter from LB and two digitized photos of a nude young boy.SNIP
The envelope is addressed to Mikel Bolander, 1093 East Main St. #130, El Cajon, California 92021. This envelope was given to Det. Kertson by California State Parole Agent Maritza Rodriguez. Parole Agent Rodriguez obtained the envelope as a result of a parole search on Bolander’s mailing address, 1093 East Main St., El Cajon, California. The disk was downloaded and it contained the following photos: One photo depicts a young male under the age of 18 having anal/genital contact with an adult male
They tried to claim that the detectives messsed up the harddrive on defendants computer...yet another case of conspiracies, lies and innuendos.
If a federal prosecutor ever wanted to offer a disquieting example of a child pornographer, it would be Mikel James Bolander. Bolander, 37, is a convicted, self-confessed pedophile who dabbles in child porn. He is incarcerated in the Metropolitan Correctional Center, a federal prison in San Diego. http://www.wired.com/news/politics/0,1283,49083,00.html
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