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.
If Westerfield had been really, really smart, he would have talked to the cops for a few hours, confessed to the crime,directed the cops to some damning evidence, and THEN called his lawyer and said "These guys came in here and threatened me."(Of course, I am here assuming his guilt.) The court would have to supress any evidene that could be linked in any way to the illegal interview.
( 03-08-2002 ) - Attorneys for the man charged with Danielle van Dam's death are heading to court Friday morning.
David Westerfield's attorney Steven Feldman is again asking 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 got a jailhouse visit from two detectives, and it's causing a lot of trouble.
The visit was neither authorized nor ethical according to legal experts.
In a six-page motion filed by defense attorney Steven 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 David 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.
Bill Nimmo is a well-known defense attorney in San Diego. He's not involved in the Westerfield case, but he feels police blew it.
"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."
David Westerfield is scheduled to be back in court Monday, March 11 for a preliminary hearing. >
Hmmm...wonder if these two detectives have ever stopped for burgers and fries at Dad's Cafe? Let's hope there is a closer look, to see if they have been to any late night pizza parties in Poway??
In some stories of past cases involving pedophiles, especially where there are allegations of organized kiddie sex activity, I've read that there are rumors of contacts and info leaks from within local police forces.
Could this be the way "fellow travelers" in that world give each other a hand (so to speak). That is, some guy gets caught, but one or two cops who might share his proclivities will happen to have a "lapse of judgement" which is just a blot on their record, but could cause a serious flaw in the case against the guy on trial?
It would be interesting for some talented private investigator to reconnoiter the homes of those two cops who had made the gaffe and see if they had any material similar to what was found at Westerfield's house...
Mark W.
I can't imagine what those two clowns were thinking. Maybe since the guy has a 'desertion charge against him, they consider him convicted/sentenced hands down?
sw
It seems to me that this jibes almost perfectly with your theory that there is more to this case than meets the eye. From all the reports we've seen [Danielle's blood in Westerfield's motor home, child porn on Westerfield's computer, Westerfield's inability to account for his whereabouts beginning at exactly the time - 9:30AM Friday morning - that the Van Dams discovered Danielle missing], the SDPD and the DA have more than enough evidence to nail Westerfield. The only possible reason these detectives would want to re-interview Westerfield is that they don't believe he's the perp - or that they suspect that he was not working alone.
I am curious about the desertion charge, which I can only speculate wildly on..based on westerfield's age it may have to do with the Vietnman Conflict which President Ford granted limited amnesty in 1974. There were between 500,000 and 1,500,000 desertion or AWOL people during the conflict.and numerous draft dodgers..Amnesty
Best I can figure is a 5 year statute of limitations unless desertion was during time of war and there is no statute of limitations...since Mr. Westerfield was arrested for DWI in 1996 his fingerprints would have gone to the FBI and I would think they would have been a "hit" on them for desertion, unless of course since his recent notoriety someone "ratted" him off....then again it may be a BS charge. nothing in the papers about this-why?....Monday should tell a tale at the prelim hearing..regards...
wrt;the 2 investigators..since nothing was gained except more media coverage, probably nothing will happen more than a slap on the wrist.
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