Posted on 04/15/2002 6:14:34 PM PDT by FresnoDA
"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, 50, is accused in the 7-year-old's death.
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.
Defense attorneys Steven Feldman and Robert Boyce want to review all records of complaints against the named officers as they relate to reputation for truthfulness and veracity, or a capacity to testify and investigate truthfully.
Westerfield's attorneys also are asking for the names, addresses and telephone numbers of people with complaints against any of the officers.
The attorneys also want 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.
"There is no showing, moreover, that any misconduct by the officer in the past would be material to the present case," Cooper wrote in his response.
Mudd is expected to convene a hearing on the defense motion Thursday.
Prosecutors say the judge needs only review the personnel records of detectives Mike Ott and Mark Keyser.
They interviewed Westerfield two days after the girl disappeared and accompanied him on the 600-mile route he said he traveled the weekend Danielle van Dam turned up missing.
Mudd ruled last week that future motions in the Westerfield case will be sealed until hearings scheduled for May 6.
The judge also ruled there would be no live TV coverage of the pretrial hearings in the case. Trial is set to begin May 17.
Westerfield's defense team still may ask that the trial be moved out of San Diego County due to pretrial publicity. Prosecutors could ask that inquiries be limited into the supposed "swinging" lifestyle of Danielle's parents, Brenda and Damon van Dam.
A police dog tracking the scent of Danielle van Dam after she was reported missing became agitated near Westerfield's garage, according to prosecution documents.
Detectives, who believe Westerfield's motorhome may have been used to transport the victim, said search dogs also showed signs of recognition while sniffing a storage area on the exterior of the vehicle, the documents state.
Westerfield is charged with kidnapping, murder and possession of child pornography in connection with the girl's death.
He also faces a special circumstance allegation of murder during a kidnapping, which could lead to the death penalty if he is convicted.
Prosecutors will announce later whether they intend to seek capital punishment should Westerfield be found guilty.
But clamping down on cameras, microphones and even transcripts of the trial amounts to holding a secret trial, and is completely counter to the justice system we always claim is better than any other. Transcripts especially should be available. These should be public information. Every single word of the OKC bombing trials can be found in many places on the internet--they didn't allow cameras into the courtroom, but we do have the transcripts. We have a pretty good idea what went on.
In a secret trial, all sorts of liberties can be taken by a heavy-handed prosecution. In an open trial, everyone is watching, and they (mostly) behave. Did you know that there has even been talk of closing the court room to spectators? I hope it comes to nothing, but yes, they are considering it.
I agree that we probably don't need to have cameras to memorialize the motions hearings. The actual trial, however, is a different matter.
On another board, there have been questions about why these guys remained on the force. But the truth of the matter is that all too often, a good police officer or detective is one that makes the case the DA wants. Any way he/she can. I'd like to think that if enough perps get cut loose because of these practices, policies will change--but probably that's way too naive. I don't think, as long we elect DAs, that anything of the sort will ever happen.
As I remember, Internet Porn is either the top or well within the top five data loadings on the internet. It is one of the very few real money makers on the net. I've been to a few Philly-area commercial NOC's -- the places where the servers are located. In each porn and related servers accounted for 40 to 60% of the machines.
Saying "porn" is a valid marker of a sex-criminal is like saying a high end stereo is -- becuase both are so prevalent, as evidence, they are not much. Yet I'd bet you'd find a high precentage of sex criminals have high-end music systems.
In this Westerfield case too much is made of it.
But I don't live in San Diego so don't know the circumstances there, but short of clear danger of a genuine lynch mob forming and storming the jail, I'm for keeping the public fully informed.
Jaded and others have often asked--if they have such a great case, why do they need to make up evidence for public consumption? And I agree--if you're holding a good poker hand, most people won't see the need to cheat.
By Alex Roth
UNION-TRIBUNE STAFF WRITER
April 17, 2002
A San Diego judge sealed pretrial legal documents yesterday in the murder case of former county toxicologist Kristin Rossum, saying he was afraid of "further poisoning" the jury pool in the high-profile case.
Superior Court Judge John Thompson rejected a request by The San Diego Union-Tribune to review the papers, whose contents haven't been publicly disclosed. The newspaper said it will appeal the ruling.
The ruling is the latest in a series of local judicial moves to limit public access to court proceedings in murder cases that have drawn widespread attention in local and national media.
Thompson criticized the "insatiable appetite" of the press for more details about the case and said he was afraid of "further poisoning" an "already polluted jury pool." He noted that the case was featured last week on the CBS television program "48 Hours."
Rossum is scheduled to go on trial in June on charges that she fatally poisoned her husband and tried to make his death look like a suicide. In the television interview, Rossum, who was fired from her job in the San Diego County Medical Examiner's Office, denied murdering her husband, Gregory de Villers, whose body was found in their La Jolla apartment.
Also interviewed was Rossum's former boss, who was having an affair with her and remains a suspect in de Villers' death, according to prosecutors. Michael Robertson also was fired from the office and has since returned to his native Australia.
Judge Thompson's ruling yesterday comes as the Union-Tribune and other media are seeking access to various sealed records in the case of David Westerfield, charged with kidnapping and murdering 7-year-old Danielle van Dam.
In the Westerfield case, judges also have cited media publicity as their reason for keeping various pretrial documents confidential to protect the Sabre Springs man's right to a fair trial.
The tendency toward keeping proceedings secret has extended to the San Diego-based 4th District Court of Appeal. Last week that court ruled that a defendant, believed to be Westerfield but identified only as "John Doe," qualifies for a taxpayer-financed defense.
The appeals court went to great length to conceal the defendant's identity, including X-ing out the Superior Court number on his case file. Because of the gag order it was impossible to confirm that Westerfield was the defendant, but several factors in the decision matched the profile of Westerfield's case.
The appeals court also is considering media requests to unseal material from affidavits and search warrants in the Westerfield case that have remained secret even though Westerfield has been arrested, charged and has had a preliminary hearing in the case.
In the Rossum and Westerfield cases, judges have imposed gag orders forbidding lawyers and witnesses from talking to the press. Because of the gag order, lawyers in the Rossum case can't comment on the topic or contents of the motion that Thompson sealed yesterday.
A lawyer for the Union-Tribune asked Thompson yesterday what the topic of the motion filed in the Rossum case was, but the judge wouldn't answer. A hearing on the motion is scheduled for April 25. It was unclear yesterday whether the media would be allowed to attend that hearing.
The newspaper's lawyer said Thompson's ruling was legally flawed. Under the law, pretrial motions are considered public documents that can be sealed only in very limited circumstances, attorney Guylyn Cummins said.
A judge can't seal such documents unless they contain information so harmful to a defendant's fair-trial rights that even moving the trial to another part of the state wouldn't be an effective remedy, Cummins said.
The legal standard for disqualifying jurors in a high-profile case is not whether they have been exposed to publicity but whether they have formed an opinion that would impair their ability to decide the case fairly.
"Even if you have publicity in a case, that doesn't mean you can't find 12 people to fairly judge in the case in a city the size of San Diego," Cummins said. "We don't have to shield every high-profile case from public scrutiny."
Although the judges in the Westerfield and Rossum cases have expressed concerns that pretrial publicity might affect the jury pool, no studies or documentation were filed in either case to substantiate those fears before the judges ordered the lawyers' motions to be filed under seal.
Because of the gag orders and the sealing of documents it is not known whether defense attorneys in either case have since requested to move the cases out of San Diego County.
You'd have thought with the rash of mishandled high profile cases in Southern California, that the local constabulary and justice would have learned something. Guess not, just goes to show what happens when you think.
Union-Tribune asks appeals court to unseal Westerfield search warrants
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April 17, 2002 The San Diego Union-Tribune asked an appeals court Wednesday to unseal search-warrant documents in the David Westerfield case, while Westerfield's lawyers urged the court to keep the records confidential. An attorney for the newspaper said the press has a right to see the documents under state law and guidelines established by previous court decisions. A lawyer for Westerfield said releasing the documents would jeopardize his right to a fair trial. "Certainly Mr. Westerfield's right to a fair trial in this case – where his life is potentially at stake – is balanced against the public's right to talk about this case and discuss it on the 6 o'clock news," said Laura Schaefer, a member of Westerfield's legal team. The 4th District Court of Appeal didn't say when it would issue a ruling. The three justices on the panel seemed to be considering the option of releasing some of the documents after Westerfield's trial on charges of kidnapping and murdering 7-year-old Danielle van Dam. The justices seemed concerned about "a rather massive amount of pre-trial publicity," as Justice Richard Huffman stated during the hearing. The newspaper is seeking access to the affidavits used by police to obtain search warrants of Westerfield's Sabre Springs home, computers, motorhome and cell-phone records in the days after Danielle vanished the first weekend of February. These affidavits usually outline law enforcement's theory of the case and provide details about the investigation.
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In another article on another board, nbcsandiego.com is saying that one reason they're trying to keep the gag on is because the affidavits contain information that would not be admissable in court. Remember, these two cops in particular have a history of making up any bogus thing to get their warrants, no matter how outrageous. From the beginning, the public has been fed a lot of disinformation, only some of which has been knocked down in the hearing. I can see where Feldman would like to prevent more of the same.
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