Calm down, now: Feldman actually was serving justice
September 19, 2002
So Steven Feldman knew. Beyond a shadow of a doubt.
The twitchy defense attorney knew David Westerfield was guilty as cardinal sin.
Hours before Danielle van Dam's body was found, Feldman and his co-counsel, Robert Boyce, were working on a plea bargain with prosecutors, according to unnamed Union-Tribune sources.
We give you the body; you give us life.
But divine providence led volunteers to the Sabre Springs girl's decomposing remains minutes before the deal could be brokered. Westerfield's leverage slipped to zero.
So a captive jury was subjected to tirades, tears, tedium, repellent images of deviant sex and the ravaged corpse of a child, swinging lifestyles, scruffy barflies, macabre bug science and a host of other reasons to wake up screaming in the middle of the night.
And now media heavy breathers are fuming that Feldman possesses less moral fiber than a Gila monster. How could he, the rant goes, "weave a web of deceit" when he knew – knew! – that the flabby, balding defendant was, in fact, a child killer?
How could Feldman have staged a four-month charade when he knew that his "doubts" were not only bald-faced lies but might – if by some demonic miracle they gained credence – result in liberty for a predatory ghoul?
I called Carlos Armour, chief of the North County DA's Office, for some calm legal advice.
This stuff happens, Armour said, very calmly.
A rapist says he'll serve 10 years for a string of assaults. The DA says no, you're in for 25. Neither side budges. OK, the rapist says, I'll take my chances at trial.
The scum's attorney, who's been pushing for a reduced sentence in confidential meetings, suddenly is obligated to claim in court that prosecutors have failed to prove his client guilty.
That's how the system does – and should – work, Armour said.
Why?
To guarantee cases get proven in court, he said.
Let's say Feldman did a slapdash job of defending Westerfield. Let's say the attorney failed to explore every feasible line of defense.
What happens then?
You've got it. Westerfield appeals – and wins another trial. The scabs on the healing wounds would be ripped off.
In 1997, Armour won a murder conviction against Danielle Barcheers in the stabbing death of Escondidan Betty Carroll. That verdict was overturned because her lawyer failed to present a mental-health defense.
The DA was forced to try Barcheers again several years later. (She was found guilty a second time.)
It's bad enough that Westerfield can pursue state and federal appeals while buying 10 years or more on death row.
In throwing all the available mud on the wall – "risque" behavior, blow flies and the other obfuscations – Feldman did his part in ensuring that the verdict will stick. (Of course, we pray the judge, jury and the prosecutors honorably performed their duty as well.)
It's counter-intuitive but true: Feldman, in forcing the case to be proved despite all plausible doubts, is as much a hero in this grotesque morality tale as Jeff Dusek, the rock-jawed prosecutor upon whose head laurels are being heaped.
For those who think Feldman a reptile without human feelings, I have a little theory about his body language.
A veteran reporter and I were watching the trial on TV. She observed that Feldman never touched Westerfield. Never established intimacy.
These days, defense attorneys often send subliminal messages to juries by huddling close with a defendant. See, they seem to say, he's human! (One lawyer recently kissed a convicted rapist on the top of the head – in the clear view of victims.)
In my limited TV view, Feldman seemed cold toward his client. He was duty-bound by the Constitution to fight, tooth and nail, for Westerfield's life.
But not to touch him.
A final question nags.
If Westerfield was willing to accept life in prison in a plea bargain, would the defense team have been well-advised to give up the ground it was destined to lose?
What if Westerfield had lumbered to the stand and confessed?
Yes, I killed her. I lost my mind, my life, my soul. Though I deserve none, I throw myself on your mercy. My only use on this planet is within prison walls. I could volunteer as a subject for medical research. I could teach job skills to inmates. If it were possible, I would subject myself to physical torture to show my remorse. What I can't do is undo what I've done. Never forgive me. Simply sentence me to what is just.
If I'd been on the jury and heard those sentences from the beast's lips, I'd have felt something.
I'd have been sorely tempted to give him life.
No ethical person can possibly defend Feldman's actions.
No ethical person can possibly defend Feldman's actions.
Yet after the plea-bargain fell through, their "duty" to their monster of a client was more "important" than their duty to justice?
We are a sick, sick society when so many people think this notion is perfectly fine.
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.