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."

[ladyinred]

Hee hee hee!

[Illbay]

They have a duty to represent their client.

By MISREPRESENTING the truth, right? You're so far out in left field on this one, home plate ain't even visible any more.

[marajade]

well judge napolitano disagrees with you and he was a federal judge and he is in charge of the legal stuff at FNC

[GOPyouth]

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."

Prof. Cohn is my criminal law professor this semester. This issue was brought up Wenesday in class, but she had not heard O'Reilly at the time. She didn't feel that Feldman had done anything illegal. She is making the tv/radio rounds today, so it will be interesting to see what she says about this. I still fully believe that Westerfield's team knowingly lied to the court.

[Illbay]

Your viewpoint is simply wrong, that's all there is to it. If you're right, then the Mafia is fine and dandy. After all, they're just doing what it takes to get by. The means justifies the ends, right?

[rintense]

He purposely mislead the jury into thinking that the VanDamn's, because of their lifestyle, were soley responsible for the death of their daughter. If a lawyer has a confession on file, his job isn't to still try and prove his client is innocent, but rather to prevent the presecution from establishing beyond a reasonable doubt that his client is guilty- to DEFEND his client. Westerfield deliberately mislead the jury to defend his client, and as such, is in violation of the code.

[Kevin Curry]

He called a parade of forensic entomologists who said insects in her decaying body indicated her death occurred when Westerfield had an airtight alibi.

It is the credibility of these so-called "experts" that has been demolished by these developments.

[Illbay]

You have the right to obtain counsel--but counsel does NOT have the obligation to represent you if counsel cannot do so ethically.

What people have forgotten in our wicked, wicked day is that the guilty do not have "rights." Only the innocent have "rights." However, we have to presume everyone innocent in order to make sure there is no mistake.

Feldman KNEW that his client was guilty. He knew his client was angling for a plea-bargain in which he'd give up the body. Knowing that, when the plea-bargain arrangement fell through, he should have asked off the case.

Instead, he chose to proceed, and to lie and misrepresent the truth in order to attempt to acquit someone HE KNEW was guilty.

That's so abominable it chills me just thinking about it. Scum.

[demkicker]

"I obviously have an advantage in this debate. I've read the Constitution and the Bill of Rights. As well as the California Rules of Professional Conduct. Try it some day."

Only a condescending prick would have such a pathetic response.... ugh.

"Westerfield was entitled to present a defense by our Constitution and to employ legal counsel to do so. He and his counsel were entitled to present any evidence that might show his innocence, to question the reliability of prosecution evidence and to present alternative theories, explanations, etc. of the evidence. They did so. I've seen no real evidence that defense counsel violated any ethical rules."

This is where you lose. Lawyers who knowingly put forth false theories and explanations to defend their clients make a mockery of our constitution. I don't expect you to comprehend the rationale.

"Slandering defense counsel as you and others are doing hardly demonstrates your moral high ground."

But the air is so much fresher up here.

[RepubMommy]

O'Reilly is a blithering moronic loudmouth.

Why are you saying this? If what he claims happens to be true, then this despicable lawyer does in fact deserve to be disbarred. For reasons unknown to me, many FReepers do not find OReilly appealing. However, you cannot deny the fact that he appears to be the only media personality that is unafraid to venture into uncharted waters. Aside from this current case, I for one, am happy he took a stand against Pepsi for almost utilizing Ludacris as an endorsement. You won't catch Chris Matthews or Larry King doing such.

[Dante3]

I think Feldman or his enabler is lurking on this thread.

[demkicker]

"I think Feldman or his enabler is lurking on this thread."

And spqrzilla's his name, right?

[bvw]

He's more than that, he's the new age Father Coughlin. Lead by stirring up the hornet hive.

[spqrzilla9]

You continue to demonstrate that you have no understanding of the ethical rules.

[RepubMommy]

I think Feldman or his enabler is lurking on this thread.

LOL, never thought about it, but you could be right. Seriously, I don't understand the disdain for OReiilly among a large portion of FReepers here. I agree with alot of his views. Yes, he has a head the size of Texas and tends to cut people off just a tad bit much, but he isn't afraid speak up when noone else does and always makes for an entertaining show.

[spqrzilla9]

Evidently slander is all the tools of debate in your toolbag as well.

[bvw]

Is Westerfield dead yet? Many a mob has hung a terribly bad man, yet once a mob tastes the blood they don't just stop at bad men -- they eventually go for the weak, the orphaned, the defenseless.

Once the KKK mob put on robes to stop the vile carpetbaggers, they didn't stop there.

[Kevin Curry]

Evidently slander is all the tools of debate in [demkicker's] toolbag as well.

Just think of demkicker as a defense lawyer. It'll change your entire attitude.

[spqrzilla9]

What people have forgotten in our wicked, wicked day is that the guilty do not have "rights."

Ah, the cry of every jackbooted thug everywhere.

I'm astonished that anyone would actually write something as patently silly as that.

[spqrzilla9]

Hanging around defense attorneys and prosecutors can be very educational, there are plenty of real dirty players on both sides of the aisle.