UNION-TRIBUNE STAFF WRITERS
Posted on 03/08/2002 7:54:30 AM PST by FresnoDA
Detectives take heat for attempt at interview
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By Greg Moran and Joe Hughes
UNION-TRIBUNE STAFF WRITERS
March 8, 2002
Two San Diego police detectives who tried to contact David Westerfield in jail last week violated what legal experts said is a long-established principle in the law.
While San Diego police officials termed the detectives' actions inappropriate, others in the legal and law enforcement community were stunned and outraged.
Experts cited a landmark decision in commenting on the officers' attempt to talk to Westerfield on Feb. 28. He is being held without bail on charges of kidnapping 7-year-old Danielle van Dam from her Sabre Springs home and killing her.
Detectives Mark Keyser and Michael Ott tried to visit Westerfield in County Jail downtown two days after he pleaded not guilty to the charges and three weeks after he hired defense attorney Steven Feldman.
They did not seek permission from Feldman. Westerfield turned them away and called his attorney. Feldman cited the incident in court papers in support of his request for a gag order in the case. A judge is scheduled to hear it today.
Keyser and Ott are part of two homicide teams that were involved in collecting evidence in the van Dam case. They interviewed Westerfield several times in the days after Danielle was reported missing from her home Feb. 2.
Officials who asked not to be identified said the two detectives are still on the investigation.
San Diego criminal defense attorney John Cleary, who is not involved in the case, said the actions of the detectives were "clearly inappropriate" under the law.
In 1964, the U.S. Supreme Court ruled that once formal charges have been filed and a defendant appears in court, the defense attorney must be present if police seek an interview, Cleary said yesterday.
"The cops have to back off, and if they want to talk to the guy, they have to go through his lawyer," Cleary said.
Capt. Ronald G. Newman, who heads the van Dam investigation, issued a terse statement regarding the incident.
"We are aware this happened," Newman said. "It was inappropriate; it should not have happened and we are handling it internally."
Police officials refused to say whether they knew why the two detectives attempted the contact and why they did not advise their immediate supervisors, the District Attorney's Office or the defense attorney, all of whom were apparently unaware of the actions.
Neither Keyser, 43, nor Ott, 41, could be reached for comment. Both have been on the force for 16 years. Prosecutor Jeff Dusek also declined to comment, citing the hearing this morning at which Feldman will try to persuade a judge to order everyone involved in the van Dam case not to talk about it. Feldman did not respond to a request for comment yesterday.
Courts have ruled that talking to a defendant after "adversarial proceedings" have started – in other words, when a prosecutor has filed charges – violates the constitution's Sixth Amendment right to counsel.
Any statements or evidence that police glean from such a contact would be inadmissible in court, said Knut Johnson, an attorney also not involved in the case. He is president of the San Diego Criminal Defense Bar Association.
Johnson called the incident "a boneheaded maneuver" and said the law is well established.
"Once adversarial proceedings have begun, it is illegal for police to try to initiate a conversation with you about that crime," he said. "That is something they teach all police officers, and that any detective knows."
Police Chief David Bejarano was unavailable for comment. Other department officials refused to either discuss the incident or speak unless their names were not used. Privately, however, some were aghast.
"What were they thinking?" asked one official.
"I guess we didn't learn anything from Stephanie Crowe," said another.
Stephanie was the 12-year-old girl found stabbed to death on her bedroom floor in Escondido in 1998. Escondido police originally arrested her brother and two high school friends based on statements they made during intense interrogations.
A judge ruled most of the statements inadmissible because they were illegally obtained.
Charges against the teen-agers were dismissed after police discovered Stephanie's blood on the sweat shirt of a transient who was briefly questioned at the time of the killing, then released. No one has been charged, and the case remains unsolved.
Juliana Humphrey, the chief deputy public defender for the county, said incidents like last week's are rare. She said it was "even more egregious because Mr. Westerfield had been represented for weeks, so there is no way anyone can claim ignorance."
"This was pretty shocking," she said.
Police and defense attorneys interviewed yesterday said it is not unusual for officers to contact defendants in jail before a lawyer is hired or appointed. They can do so only if the person agrees to talk, waiving the rights to consult an attorney and against self-incrimination. But once the case moves to the courtroom, the rules are different.
"That is the bright line that indicates we are in an adversarial situation," Cleary said, "and the action takes place in the court system, not at the police station or in the interrogation room."
Keyser and another officer were tried on charges of assault under the color of authority in the arrest of a drug suspect in September 1988. A jury acquitted them.
Both officers were accused of kicking and beating a man before and after he was handcuffed. The arrest took place in Greenwood Cemetery after a chase through the southeastern part of San Diego.
Jurors said after the verdict that they found Keyser and Officer David Nellis not guilty because the prosecution failed to prove beyond a reasonable doubt that they had assaulted Keith Anthony Beals, 19.
http://uscode.house.gov/usc.htm
-CITE-
10 USC Sec. 885 01/02/01
-EXPCITE- TITLE 10 - ARMED FORCES Subtitle A - General Military Law PART II - PERSONNEL CHAPTER 47 - UNIFORM CODE OF MILITARY JUSTICE SUBCHAPTER X - PUNITIVE ARTICLES
-HEAD- Sec. 885. Art. 85. Desertion
-STATUTE- (a) Any member of the armed forces who - (1) without authority goes or remains absent from his unit, organization, or place of duty with intent to remain away therefrom permanently; (2) quits his unit, organization, or place of duty with intent to avoid hazardous duty or to shirk important service; or (3) without being regularly separated from one of the armed forces enlists or accepts an appointment in the same or another one of the armed forces without fully disclosing the fact that he has not been regularly separated, or enters any foreign armed service except when authorized by the United States; is guilty of desertion. (b) Any commissioned officer of the armed forces who, after tender of his resignation and before notice of its acceptance, quits his post or proper duties without leave and with intent to remain away therefrom permanently is guilty of desertion. (c) Any person found guilty of desertion or attempt to desert shall be punished, if the offense is committed in time of war, by death or such other punishment as a court-martial may direct, but if the desertion or attempt to desert occurs at any other time, by such punishment, other than death, as a court-martial may direct.
-SOURCE- (Aug. 10, 1956, ch. 1041, 70A Stat. 67.) In subsection (a), the word ''unit'' is substituted for the words ''place of service'' to conform to clause (2) of this section and section 886(3) of this title. The word ''proper'' is omitted as surplusage. In subsection (b), the word ''commissioned'' is inserted for clarity. The word ''before'' is substituted for the words ''prior to''. The words ''its acceptance'' are substituted for the words ''the acceptance of the same''. The words ''after tender of'' are substituted for the words ''having tendered'' for clarity. The word ''due'' is omitted as surplusage. In subsection (c), the words ''attempt to desert'' are substituted for the words ''attempted desertion''.
-SECREF- SECTION REFERRED TO IN OTHER SECTIONS This section is referred to in sections 882, 937 of this title.
Story 1: He was at home, in bed asleep without interruption till she got home after 2, kids asleep but never checked on.
Story 2: He was "entertaining" a male friend at the house, children in bed sound asleep. Some way to put it, but...
Story 3: He was entertaining a FEMALE friend at the house. Children sound asleep without a peep.
Story 4: He was entertaining a FEMALE friend, out at a paintball arcade, children at home in unsecured house.
Story 5: He was entertaining a Female Friend at a paintball arcade, one or more of the children awake and with them. Ever wonder if blood or DNA evidence could have been shot at something or someone with a paintball gun?
Story 6: No, he was back home in bed alone the whole time, like story 1, but got up to urinate around 1:25/1:30, wandered downstairs and noticed door open but did nothing about it, did not check on children, even though bathroom is all right upstairs there and their rooms much nearer than the door noticed; did not close it until another mysterious wandering at 3:30 that also did not include a bed check of children;
Story 7: After putting the children to bed, he went to a female (married) friend's home and slept over with her, having sex, did not return to his own home until some undisclosed but daylight hour.
As you will notice these are mainly mutually exclusive. I have listed the seven in the order in which I heard them over the last 33 days or so.
Many another crucial fact, hard fact, that has to be one way or the other, has been like this in VD case. Differing stories, a new one every few days, never any clarification on which is right.
That is very hard to explain away, no matter how you slice it. It could not have been placed there by the police. Danielle had been missing for three days when they seized the evidence. SDPD did NOT have a blood sample lying around handy to frame some one.
And yes, they can tell the "age", seepage or splatter and the trajectory of the splat and a huge number of other things. As for the blood in the motor home, I think they were described as "traces", found in a freshly bleached and scrubbed motorhome. Frankly, until we know exactly how much and where, it's hard to speculate about them, except to say that defense is going to have to show how they got there plausibly along with the spot on the jacket.
Also have to explain presence of his DNA on a piece of her clothing. We don't know if that is from a hair follicle or body fluid. I can see the explaining of a scalp hair, but a pubic hair or body fluid on her clothing will present a huge challenge to the defense.
I give no credence to theories of swinger parents offing their own child and framing the neighbor for one reason.We do NOT have a well known problem (or profile)of the swinger community committing such a crime. But we DO have a well known problem and profile and investigation playbook for abduction/murder of children by pedophiles.
This is practically a paint by the numbers picture of a typical abduction/murder.
If Westerfield's DNA comes up in the COLD HIT program, plea bargaining will begin.
I am on record saying I think she DID look in on them shortly after she returned, and found them apparently OK.
Note both her stories say he was THERE, not away whether playing paintball or some older, easier game.
For a whole nother debate over a fixed point that has to be true or false, try the one over whether he danced with Brenda or not; whether he was wearing a coat when he did or did not dance with her; whether that coat was of a suit/sport/dress nature, or a leather or other casual jacket; or was he in his shirt sleeves. Why is THIS argued or left unsettled?
Because all we have to go on are published media accounts. We do not have signed statements and evidence lists and summaries because we aren't privy to the actual case documents.
All we CAN do is argue what we saw or heard in the media or in other posts.
What I'd like to have are the SDPD press releases handed out at press conferences. Anyone see those posted anywhere?
You will note that it is I who am suggesting THAT VIRTUALLY NO CRIME WAS EVEN COMMITTED AT ALL!
Occam's razor suggests, why hypothesize that a man with no record is a perv and a pedophile, the girl was not murdered or cut up in such a way as to yield blood; no violence or struggle anywhere; why ANY blood, regardless of whose?
YOU HAVE SAID A MOUTHFUL when you said it is a paint(ball) by numbers case of stranger abduction...but was he a stranger? Did he abduct? Did anyone abduct (looks like no). Did anyone molest? (Looks like no) Did anyone murder her with intent? Did she bleed? (Looks like no). The very fact that such a classic case was attempted to be set up, argues more the contrary than the positive.
Look at my two posts before this one, if DW is a guilty stanger abductor, why these multiple stories and changes of story? Looks like they have more to hide than he did.
You are right. Thanks for the suggestion.
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I disagree, and here is my source:
US Supereme Court cases/Miranda
if a suspect requests counsel at any time during the interview, he is not subject to further questioning until a lawyer hasbeen made available or the suspect himself reinitiates conversation. Edwards v. Arizona, supra, at 484-485. This "second layer of prophylaxis for the Miranda right to counsel," McNeil v. Wisconsin, 501 U.S. 171, 176 (1991), is "designed to prevent police from badgering a defendant into waiving his previously asserted Miranda rights," To that end, we have held that a suspect who has invoked the right to counsel cannot be questioned regarding any offense unless an attorney is actually present. Minnick v. Mississippi, 498 U.S. 146 (1990); Arizona v. Roberson, 486 U.S. 675 (1988). "
To further complicate the issue, Westerfield had already been CHARGED with a crime, making it a bigger no-no...imagine if Police would violate a clear constitutional right, would they violate more? stupidity or lack of ethics you make the call....
As for the porn charge. California has a legal definition and some of the pictures in his possession met that definition. Ignorance or inability to discern the age of the minor, is not a defense to the charge.
While I am not familiar with the state of child porn laws, the charge is violation of Calif Penal code, section 311.11(A) PC (below)
311.11. (a) Every person who KNOWINGLY possesses or controls any matter, representation of information, data, or image, including, but not limited to, any film, filmstrip, photograph, negative, slide, photocopy, videotape, video laser disc, computer hardware, computer software, computer floppy disc, data storage media, CD-ROM, or computer-generated equipment or any other computer-generated image that contains or incorporates in any manner, any film or filmstrip, the production of which involves the use of a person under the age of 18 years, KNOWING that the matter depicts a person under the age of 18 years personally engaging in or simulating sexual conduct, as defined in subdivision (d) of Section 311.4, is guilty of a public offense and shall be punished by imprisonment in the county jail for up to one year, or by a fine not exceeding two thousand five hundreddollars ($2,500), or by both the fine and imprisonment
KEY words there KNOWINGLY & KNOWING (my caps)..seems like ignorance or inability to discern that the subjects are minors IS a defense????
Any news updates on the Gag Order Ruling??? Freep updates requested.....FresnoDA
KFMB-TV (CBS affiliate) reports the judge has granted the gag order.
GAG ORDER IS ENVOKED. NOT AS BROAD AS ASKED FOR....DEVELOPING......KOGO LIVE...3:48 P.M. 3-8-2002No, I don't think she killed herself, not by pills anyway, but I think if I was 7 and had seen my parents doing (esp if often and habitually) what these were doing, I MIGHT have, but again I do not think SHE did.
I wonder just what sleeping pills would or would not leave a residue after 4 weeks in a body...alcohol and milk could have been used, but less likely to be fatal of course...
And you are right, technically as I have posted on other threads, there would still be the "crime" of administering drugs not prescribed, child abuse and neglect, unauthorized disposal of a corpse, trespassing where corpse was dumped, dumping itself, and a dozen others if you get creative.
But I think I was pretty comprehensible, in other words, that in the usual English street meaning, there is no murder, no abduction, no kidnapping, no rape.
Then you do not understand how quickly blood changes outside the human body. It is NOT easy to "plant" blood evidence.
You will note that it is I who am suggesting THAT VIRTUALLY NO CRIME WAS EVEN COMMITTED AT ALL!
Which makes you sound like a crank. They have a body, even if she died "accidently" in the course of some other activity, that makes it MURDER. She did not wander away from her home and die of exposure. The dogs would have found her spoor immediately and tracked her, wandering barefoot. She was removed from her home and caused to die, and her lifeless body placed at the spot it was found. That is felony murder.
Occam's razor suggests, why hypothesize that a man with no record is a perv and a pedophile,
Umm, because the police say they have DNA and blood evidence linking him to the missing child and while they must prove guilt in a court of law, it certainly is enough to theorize with.
the girl was not murdered or cut up in such a way as to yield blood; no violence or struggle anywhere; why ANY blood, regardless of whose?
Why any blood, indeed. The main question the defense must answer.
YOU HAVE SAID A MOUTHFUL when you said it is a paint(ball) by numbers case of stranger abduction...but was he a stranger?
Parents and Police say yes, DW has NEVER claimed contact with the child
Did he abduct? Did anyone abduct (looks like no).
Police and Parents both say yes.
Did anyone molest? (Looks like no)
This is unknown, Preliminary autopsy are not the final word on this subject. Do not base your theories on a prelim. Many sexual dysfuntions accompany this category of crime. I will not be more descriptive than that.
Did anyone murder her with intent? Did she bleed? (Looks like no)
Yes and Yes, Police identified her blood with her DNA in several places it had no business being.
The very fact that such a classic case was attempted to be set up, argues more the contrary than the positive.
Look at my two posts before this one, if DW is a guilty stanger abductor, why these multiple stories and changes of story? Looks like they have more to hide than he did.
Police have said repeatedly that they have had the full cooperation of the Parents from the beginning, the fact that the rumors hit the fan so quickly, indicates they didn't try to hide anything. And it is common for timelines to vary a little. Either from carelessness on the part of reporters, or because exact times were always uncertain and only firmed up by the putting together of all the interviews from all the sources questioned who were there. None of the variations have been great enough to tag as "unusual". Particularly when Investigators in posession of "full" knowledge have openly stated the Westerfield's inconsistencies attracted their attention, not those of the parents.
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JUDGE ISSUES GAG ORDER IN DAVID WESTERFIELD CASE
(03-08-2002) - A judge has issued a gag order in the David Westerfield case.
The four-page order from Superior Court Judge H. Ronald Domnitz prohibits attorneys for both sides, their agents and experts, and law enforcement personnel from furnishing statements of information for the purpose of influencing the outcome of the trial.
Attorneys for the man charged with Danielle van Dam's death were in to court Friday morning to ask the judge to issue a gag order in the case.
Feldman originally made the request during Westerfield's arraignment, but the judge said it was too early to make such a call.
The defense argues a gag order is needed for a fair trial.
Meanwhile, Westerfield's jailhouse visit from two detectives is causing a lot of trouble. The visit was neither authorized nor ethical according to legal experts.
In a six-page motion filed by Feldman, he accuses the two San Diego detectives of "outrageous, impermissible conduct."
"Let the case be tried in the courtroom not on the streets of San Diego," said Feldman to a crowd of media outside Westerfield's February 26 arraignment.
Last week Feldman criticized the media, saying that all the news coverage would hurt his client's chance at a fair trial. Now, Feldman is attacking the cops, and it appears he has every right to do so.
San Diego police admit two of their detectives tried to visit Westerfield in jail without asking for Feldman's permission. In fact they didn't even ask prosecutors if it was okay.
"It's a clear violation of the United States constitution," said Defense Attorney Bill Nimmo, a well-known defense attorney in San Diego. He's not involved in the Westerfield case.
"Whether their mistake was a rookie mistake or whether it was some calculated intent we don't know but it was certainly wrong and it is going to come back to haunt them the law enforcement end of this at the trial stage."
In a written statement, Captain Ron Newman, the man in charge of the detectives on the case said, "It did happen. It is inappropriate once someone is represented to make contact with him. We will have no further comment and it is something we have handled internally."
Police admit they messed up, but they say their detectives didn't even talk to Westerfield. Meaning the slip up won't effect the strength of their case.
Nevertheless, Feldman is taking a whack at their credibility. He demands the courts "prohibit further outrageous governmental misconduct."
Westerfield is scheduled to be back in court Monday, March 11 for a preliminary hearing.
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