DA: Deny Westerfield Access To Police Records: Media Asks For Access To Documents And Trial

KGTV Channel 10 ^ | April 15, 2002 | KGTV

[FresnoDA]

Westerfield legal team says police detectives have checkered past

By Alex Roth
UNION-TRIBUNE STAFF WRITER

April 16, 2002

Attorneys for David Westerfield continued yesterday to attack the credibility of two detectives in the Danielle van Dam murder case, saying the police officers have a history of "dishonesty and excessive force."

In court documents filed yesterday, the attorneys cite an internal memo from the District Attorney's Office saying the two homicide detectives, Michael Ott and Mark Keyser, made false statements during a 2000 murder investigation.

In the Nov. 29, 2000, memo, an investigator for the District Attorney's Office informed a prosecutor of his belief that Ott and Keyser falsified facts in an affidavit to get an arrest warrant for a man held in the case.

Westerfield's attorneys filed this memo as part of their continuing effort to have a judge review the personnel files of Ott, Keyser and 10 other police officials investigating the slaying of the 7-year-old Sabre Springs resident.

Because of a gag order issued by a judge in the case, neither the defense attorneys nor prosecutors and police would comment about the memo, its accuracy or whether a response is expected.

Westerfield's attorneys accuse police of violating their client's rights when they questioned him in the days after Danielle disappeared the first weekend of February. Westerfield, 50, a twice-divorced engineer who lived two doors from the van Dams, was arrested Feb. 22 and charged with kidnapping and murdering the girl.

His attorneys said police repeatedly ignored Westerfield's request for a lawyer during hours of interrogation. Any personnel records that show past police misconduct "would certainly be relevant to impeach witness-officers at trial and to prove Mr. Westerfield's constitutional rights were violated and that any statements made by him were involuntary," his legal team stated in the documents filed yesterday.

Westerfield's attorneys have been attacking Ott's and Keyser's credibility since discovering the detectives tried to visit their client in jail after he already had hired an attorney and been charged. A police spokesman later called the two detectives' conduct in that incident inappropriate.

The attorneys also have cited a 1989 felony trial in which Keyser and another officer were acquitted of charges that they beat up a handcuffed drug suspect.

Superior Court Judge William Mudd has scheduled a hearing Thursday on whether to grant the defense's request for police personnel records. Last week prosecutors filed court documents saying Westerfield spoke to the detectives voluntarily before he was arrested and even complimented them on their professionalism.

The Nov. 29, 2000 memo filed in court yesterday was written by district attorney's investigator Dan Nordell to then-Deputy District Attorney Steve Garvin. The memo discusses the investigation into a Sept. 14, 2000, shooting death in the Talmadge neighborhood of San Diego. The victim, Maleeke Lawson, was killed during an argument in the middle of a street.

In the memo, Nordell said that a man held in the slaying had been arrested with "very little justification" and that Keyser had filed an affidavit falsely stating that a witness had positively identified him in a photo lineup. In reality, the witness didn't pick anyone out of the lineup, according to the memo.

Ott knew about the false affidavit and did nothing to correct it, according to the memo.

Another detective later acknowledged that the arrest warrant contained "other false statements in it but that Keyser had said not to mention it because the (prosecutor) was stressing out already," according to the memo.

It was unclear yesterday whether the arrested man was ever charged in the homicide. A second man, Reginald Curry, was acquitted of murder charges in the case in April 2001.

The gag order prohibits Nordell or anyone else in the District Attorney's Office from commenting about the Westerfield case. Garvin, who left the District Attorney's Office and now works as a lawyer in Spokane, Wash., declined to comment yesterday.

---

In court documents filed yesterday, the attorneys cite an internal memo from the District Attorney's Office saying the two homicide detectives, Michael Ott and Mark Keyser, made false statements during a 2000 murder investigation.

In the Nov. 29, 2000, memo, an investigator for the District Attorney's Office informed a prosecutor of his belief that Ott and Keyser falsified facts in an affidavit to get an arrest warrant for a man held in the case.

JUST WIN BABY......???

Again, is the rush to justice by SDPD designed to "shield" the VD's from having to stand in account for their actions?

Why were they and their SWING SET friends ALL cleared within 13 hours of the disappearance?

 

[FresnoDA]

City Argues Against Giving Police Files To Westerfield

Murder Defendant's Lawyer Wants Files On 13 Officers Involved In Investigation

 

POSTED: 3:25 p.m. PDT April 15, 2002

SAN DIEGO -- A request by David Westerfield's attorneys for the personnel files of 13 police officers involved in the investigation of Danielle van Dam's death should be denied, city attorneys said in court documents released today.

"There has been insufficient showing of good cause for disclosure of the records requested," attorney Paul E. Cooper wrote in his response for the city. "The (legal) privilege given such records is unique and is not easily breached."

Westerfield, a 50-year-old self-employed designer, is charged with kidnapping Danielle from her family's Sabre Springs home and killing her. The second-grader's parents discovered their daughter missing the morning of Feb. 2. Her body was found Feb. 27 near Dehesa, after weeks of searching by volunteers and law enforcement, and a barrage of national media attention.

Westerfield's attorneys, Steven Feldman and Robert Boyce, want to review all complaints against the named officers as they relate to their reputation for investigating and testifying truthfully. They also want the names, addresses and telephone numbers of people with complaints against any of the officers.

Additionally, Westerfield's attorneys have asked Superior Court Judge William Mudd to let them review records regarding use of excessive force or aggressive conduct or violation of constitutional or statutory rights, including Miranda rights and rights to counsel, in interviewing suspects and witnesses.

In response, Cooper wrote, "There is no showing, moreover, that any misconduct by the officer in the past would be material to the present case."

A hearing on the defense request is scheduled for Thursday. Prosecutors are fighting the motion for records on all 13 officers. They are arguing that the judge needs only review the personnel records of Detectives Mike Ott and Mark Keyser.

Those two detectives interviewed Westerfield two days after Danielle disappeared. They accompanied Westerfield as he retraced the 600-mile route he said he traveled the weekend the little girl disappeared.

---

Hmmm...SO it was Ott and Keyser (Nov. 29, 2000, memo, an investigator for the District Attorney's Office informed a prosecutor of his belief that Ott and Keyser falsified facts in an affidavit to get an arrest warrant for a man held in the case) who accompanied Westerfield on the "road trip" for 14 hours, and spent an additional 5 hours interviewing him, despite numerous requests for counsel.  And...while not being placed under arrest.....

[demsux]

Here's a thought...Who was working the door at Dad's that night? I seem to recall BVD mention during the prelim. that she and her friends talked to the guy at the door who was collecting the cover charge. Off duty cop? Did he go back to the garage?

[Jaded]

Hey here's another kink, I had read on another forum a while back that actually the party lasted until 4:00. Of course that conflicts with what was said at the prelim, and what was printed in the various SD papers and stuff, wonder if the timeline will change again to suit a possible alibi for DW?

Keyser & Ott, have found something more effective than a rubber hose, a 14 hour road trip. Doesn't leave bruises either. /sarcasm off.

[bvw]

Today's AP, as an FR thread:

Supreme Court strikes down ban on virtual child pornography

[vacrn]

bump

[MizSterious]

I wonder what effect this will have on the Westerfield case. Didn't they mention cartoons, etc.?

[Doc Savage]

It seems obvious why these two "dicks" needed more "FACE" time with Westerfield in jail even after he had secured legal representation. Their frame-up wasn't tight enough. They still needed a confession to cinch the fix. This case was their ticket to stardom.

FresnoDA asked an excellent question. How is it possible that in the immediate heat of a rapidly developing child kidnapping and potential murder case that the SDPD has the manpower and TIME to run complete background checks on the flotsam and jetsom that floated through the VD residence the evening before masquerading as "friends."

Just to pull their files, run FBI checks, arrest and conviction records, take coherent statements and then do the field work to corroborate their stories with witnesses and to check alibis would take days if not weeks.

And then to process this information in a coherent manner that would exclude these sleazy reprobates as possible suspects. How the hell did they do this????

Easy. They didn't!! They latched on Westerfield as a batchelor in the neighborhood and suddenly there was no need to do any further background checks on these friendly drug pushers, drug addicts, alcoholics, whores. Nope. They were clean, baby, clean!! Westerfield was dirty!

[Jaded]

My tin-foil ensemble is in for cleaning. The question is, is it really a "conspiracy" to frame DW or just apathy on the part of SDPD. If BvD infact had and affair with DW and the child tagged along and bled in the RV, that makes easy with evidence. Brenda would have known that. Remember in the prelim, when Feldman was asking about Danielle getting scratched by the dog and bleeding and BvD got really snippy? Maybe mom was in the RV at the time... It was never stated when the RV was at the home prior to 2/2 except to say it wasn't there on Friday. It's a very easy solution, and not a whole lot of work with a whole lot of face-time and kudos for apprehending the kidnapper in such an expedient manner and all before the election. Keeps the city's numbers up too.

[MizSterious]

You left out some of the people they needed to check. There were also 13 registered sex offenders living in the neighborhood. There were, according to the records, 184 houses in the area that constituted "the neighborhood." Any guesses as to how many people they actually checked out?

My personal guess is "very few if any at all." As you and Fresno have stated, there simply wasn't time (they settled on Westerfield in 13 hours) to do all that checking.

From four sources, we have it that someone pointed the finger at Westerfield early on--one is a video clip, one is a newspaper interview, another is the motion recently filed, and the third is the hearing transcript. When you next apply logic to the notion of the 13 hour "investigation" you have to come to the conclusion that the SDPD is not being very straight with us. Logic tells us it just can't be done.

But logic only kicks in if people are actually thinking, rather than parroting popular opinion or what they think they already know about how police work. It's why I've given up (for the most part) trying to point out flaws in logic to some people here. If they're incapable of comprehending logic in the first place, they'll never get it.

[MizSterious]

I think you're right about the conspiracy--personally I don't think there was anything resembling an organized, planned conspiracy among the police. I think they were under the gun (remember the DA had an election to win) to wrap this one up as quickly as possible, and in any way necessary. They were provided some pieces to the puzzled by the van Dams (presumably). When they nabbed Westerfield, it became apparent that not all the pieces fit--so they tried to pound the pieces in with a hammer. Pfingst (which seems to sound like something my cat says when she encounters something particularly unpalatable to her) needs this all tied up with a bow.

[FresnoDA]

Bump post#31

[FresnoDA]

Very interesting, in light of todays SCOTUS decision....perhaps a Feldman angle???

"Downloaded Pornography"
Posted by momof6 on Apr-10-02 at 09:51 PM (EST)

A friend of mine and I were talking about the porn issue and how it was organized on DW's computer...

He told me that there is several sites that you can go to and if you pay $1.75 you can download a folder that has over 200 photos in it.

It DOES NOT tell you ahead of time what they are. He said that he and his wife downloaded them one night, out of curiosity, and they were shocked at what they got.....

There were cartoons, pics of girls that were developed, but could be as young as mid teens and some bestiality, a few movies, and bondage as well. He said it was a wide range of photos......

The surprising thing is.. (these files come zipped of course, otherwise they would take forever to download) but here's the thing.... When you download them and it automatically unzips, it creates its own folder with dates!!!!!

I am wondering if anyone else has come across this?

Could this be the same thing that happened to DW or his son?

As far as there being some copied to disk... I have a digital camera and I have to download my photos to the computer, about once every three months or so, I burn a DVD with the pics from my hard drive, so that if it crashes, I don't lose pictures of our children, trips, and so on. Is it possible that he did the same thing?

As far as the "access" dates...

I have stuff on my brand new computer that I have never looked at, but yet when I did a search for unused files, it says that they have been accessed, even when I hadn't seen the folder until just then. I am not sure why that is, but it is!

I don't know if anyone out there is interested in this, but now I know that it is possible for those pics to come up on someone's computer without them actually viewing it or downloading a particular subject such as "child porn" it may have come automatically with a random porn download.

As far as him accessing porn at all - does that make him more likely to commit this crime. NO. Not in my opinion. But I could be wrong.

 

 

 

[Valpal1]

As far as him accessing porn at all - does that make him more likely to commit this crime. NO. Not in my opinion. But I could be wrong.

Well statistically you are wrong. Statistically, men (and yes, some women) who have been convicted of sexual offenses were more likely to have viewed pornography habitually.

Of course correlation does not equal causality. It may mean that persons who have a propensity to commit sexual offenses also have a propensity to view pornography, not that viewing pornography has the ability to create the propensity to commit sexual offenses.

As a cynic, I believe the media emphasises correlative studies while downplaying causal studies, because maintaining the big bucks porn industry and the sexual revolution is more important than the truth.

[Jaded]

One would think that in this instance, were David Westerfield "addicted" to porn, there would be more current files on his computer. There would be a great deal more than just a disk.

[Valpal1]

My recollection is that there was more than "a disk".

The amount of and types of porn has been hotly debated, but the fact is, the subject has not been accurately reported in the median, or fully explored at the PH.

So we wait for the trial to determine the exact nature of the evidence (as in everything else in this case).

[skipjackcity]

"When they nabbed Westerfield, it became apparent that not all the pieces fit--so they tried to pound the pieces in with a hammer."....That is THE QUESTION! Did the SDPD hone in on DW and stop investigating anything that conflicted with their theory? Danielle's blood on his jacket bothers me as do her fingerprints in the RV, but absent his DNA in her room or his DNA in the VD house or his DNA in Danielle's fingernails and without an eyewitness, this case is still circumstantial. If the search dogs keyed on his RV that also bothers me, but you still need actual physical evidence to convict a man of a capital offence. The porn question is also debatable; exactly how many of those images/files on his computer are actual porn images? 64000 or 100? I know guys who are into internet porn but I don't think they are murderers. It's kind of the reverse of the VD lifestyle question. People who are quick to exonerate the VD's of any responsibility in their daughter's death because they say who are we to judge and it would've happened anyway are quick to judge DW as a sex-starved pervert. Maybe he indeed was, since I don't know the guy, but I still wonder how he did it (timeline) and, if he's so smart, why would he hang on to his jacket and not clean his RV and not throw out those comforters? If he's guilty I want him to fry, but something is still missing in this case. It would be nice to see the police interviews, expecially what was said just before he said "as far as I'm concerned, I didn't do it".

[Jaded]

You're right. I think most of us agree with you. It's not that any of us are so cold to forget that this is the life of a little girl but what is it that sucks us into this one? There are other girls missing and found dead that don't get near this kind attention. Is it because it was in a seemingly upscale neighborhood as compared to the rest of the country? The parent's lifestyle? The divorce successful white guy? Then again, the media loves to vilify successful white guys. That it reinforces our distrust of the authorities in general? So much of it just doesn't fit. The more we hear, the more questions are raised.

On another forum people are complaining about the gag orders and how WE THE PEOPLE have a RIGHT to witness the trial. Huh? I thought the accused had the RIGHT to a FAIR trial. In some respects this case shows the flaws that have been permitted to fester in our system and the wrecklessness of the media. If the investigation and the ensuing media circus is a real glimpse of what we as a society has become, we are in trouble. I say that, not because of a preoccupation with the sordid details, but because so many things don't add up, and as a "viewing" public we have been sold this idea that whatever we do is our business and if it doesn't hurt anybody else it's none of their business either. Gee, I remember saying that at 18, my mother laughed at me. Society has bought into that attitude and it's come home to roost and it's uglier than some of us thought or feared.

JMO. Leaving babble mode now.

[FresnoDA]

New Questions Surface About Detectives In Westerfield Case

Internal Memo Suggests They Fabricated Evidence In The Past

POSTED: 8:02 a.m. PDT April 16, 2002

UPDATED: 10:58 a.m. PDT April 16, 2002

 

SAN DIEGO -- Two of the detectives investigating the kidnapping and killing of 7-year-old Danielle van Dam may have falsified statements during a murder investigation two years ago, court documents show.

The allegation surfaced in an internal memo from the district attorney's office dated Nov. 29, 2000, questioning the actions of Michael Ott and Mark Keyser. An investigator for the district attorney's office told a prosecutor that he believed that Ott and Keyser doctored facts in an affidavit to obtain an arrest warrant for a man held for investigation of murder.

The memo said the man held had been arrested with "very little justification" and that Keyser had filed an affidavit falsely stating that a witness had positively identified him in a photo lineup. The witness never did pick anyone out of the lineup, according to the memo. It was unclear whether the man was ever charged with the crime.

Attorneys for accused killer David Westerfield filed the internal memo Monday as part of their continuing effort to have a judge review the personnel files of about a dozen police officials involved in the van Dam case.

Because of a gag order issued by a judge in the case, neither prosecutors nor Westerfield's attorneys would comment about the memo, its accuracy or whether a response is expected.

Defense lawyers allege that police violated their client's constitutional rights in the days after Danielle vanished Feb. 1 from her Sabre Springs home. After an exhaustive search involving hundreds of volunteers, her body was found along a rural road more than three weeks later.

Westerfield, 50, who lives near the van Dam family, has pleaded innocent to kidnapping, murder and child pornography charges. His trial is scheduled for May 17.

[FresnoDA]

Attorney: Westerfield not free to leave

KIMBERLY EPLER
Staff Writer

SAN DIEGO ---- Defense attorneys for David Westerfield said an audio-tape recording shows the accused child murderer was denied permission to leave a police questioning session, countering police claims that he could walk away at any time, according to court documents filed Monday.

The defense also claims some of the detectives involved in the case have "prior documented conduct of perjury, dishonesty, excessive force and violations of the constitutional rights of suspects," court records state.

Westerfield, 50, is being held without bail on charges he kidnapped and murdered 7-year-old Danielle van Dam, the Sabre Springs second-grader who lived two doors down from him. The self-employed engineer has pleaded not guilty. His trial is set for May 17.

The court papers were submitted to support the defense's request for information on 13 police officers and detectives who interrogated Westerfield or provided information for search warrants to inspect Westerfield's house, his motor home and to take clothes from his dry cleaners.

Last week, Judge William Mudd ordered all new motions would remain under seal until May 6. Because Boyce's motion was filed before the judge's order, the responses were not subject to the ruling. All parties in the case are under a court-imposed order not to discuss it.

Judge Mudd is scheduled to hear arguments Thursday on whether to release the names and phone numbers of people who filed complaints against any of the 13 detectives and officers for violating a suspect's rights, using excessive force or providing false information.

The San Diego City Attorney's office has asked Judge Mudd to deny the request and the district attorney's office has asked for any inquiries to be limited to two of the 13 detectives and officers.

Westerfield's attorney, Robert Boyce, said the information lays the groundwork to have evidence and statements made by Westerfield thrown out.

Boyce made the request earlier this month, alleging his client was denied access to an attorney and detained against his will during a series of intense police interrogations after Danielle was reported missing on Feb. 2.

According to the court documents filed Monday, an audio-tape indicates that when Westerfield asked to leave a police station after being questioned for five hours about the disappearance of Danielle, a detective told him, "Not right now."

Westerfield's defense attorneys said the exchange shows police misrepresented the facts when they wrote reports saying he was free to leave at any time.

The court papers also say one detective was accused by the district attorney's office of assaulting a suspect in a separate case. That same detective also allegedly made false statements on an arrest warrant in another murder case.

In documents filed April 11 asking the court to deny Boyce's request for information on the police investigators, the city attorney's office argued the original defense motion was too vague and failed to comply with all of the requirements set out in the state evidence code.

"There must be some cause for discovery going beyond a mere fishing expedition," deputy city attorney Paul Cooper wrote in court papers.

If Judge Mudd rules for the defense, the city attorney's office asked that only limited information be provided to attorneys after the judge reviews the files in his chambers, court papers show.

The hearing on Thursday is the first in what is expected to be an avalanche of motions as attorneys on both sides try to control what information is heard at trial. The judge has set a side a week in May for the remainder of the hearings.

The district attorney's office, which is prosecuting Westerfield, also has responded to the defense request. In its response, the district attorney's office said that Westerfield voluntarily talked with investigators and signed a consent form allowing his property to be searched.

Danielle's disappearance from her second-story bedroom launched a series of massive searches, with thousands of volunteers traversing local canyons and deserts for any sign of the little girl. Her nude and decomposing body was found under an oak tree in a rural area east of El Cajon nearly four weeks after she was reported missing.

Westerfield's home was one of the last searched in a house-to-house canvass of Danielle's neighborhood in the days after she disappeared.

When Westerfield returned home Feb. 4, he "readily spoke with detectives, and signed consent forms allowing the officers to search his house, his SUV, and his motor home parked some miles away," the district attorney's office response states.

In the papers filed last week, the district attorney's office said there was no basis for reviewing the files of 11 police investigators, but did not object to Mudd reviewing the files of two detectives who spent 14 hours with Westerfield for any history of misconduct or complaints.

The two detectives drove with Westerfield while he retraced the meandering 600-mile journey he says he took on the weekend Danielle disappeared.

The district attorney's office is still weighing whether to seek the death penalty against Westerfield, a twice-divorced, father of two.