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.
I am going to be gone at the moment the hearing is taking place today, so PLEASE ping me with any new info.
Many thanks, sw
It has been seven weeks since David Westerfield, 50, was booked on charges of kidnapping and killing the second-grader from Sabre Spings. But the information that led police to seek search warrants in the case is still under court seal.
News media requests for the affidavits police filed to obtain the search warrants were rejected last month by the trial judge. Tuesday, attorney Guylin Cummins appealed that decision to the 4th District Court of Appeal. Three judges listened to Cummins argue that the public's right to know the details of the judicial process outweighs concerns by defense lawyers that Westerfield will get a fair trial.
"All search warrant materials that are relied on by the court are to be released as judicial records, once the warrant's returned," Cummins told the court. "That has been codified into the court rules by the Supreme Court, I believe a year ago."
The justices questioned whether the information in the sealed documents would prejudice the objectivity of potential jurors in San Diego. They also asked whether there was any point in releasing the document since so much information about the investigation and the evidence in the case came out during Westerfield's preliminary hearing, which was televised.
But a member of Westerfield's defense team, Laura Schaefer, argued that the affidavits contain undisclosed information and that most of it is inadmissible in court. She said the case has received such widespread coverage that it may not be possible to find an unbiased jury anywhere in California if the affidavits are released. She said that Westerfield would be best served by having the case tried in San Diego.
"Essentially, I don't think the public has a right to discuss it," Schaefer told the court. "What's going to happen is, this is going to be discussed again and again on the news. Some of the matter, although it has been released, is clearly inadmissible and should not have been released.
"Mr. Westerfield's right to receive a fair trial in this case, in which his life is potentially at stake, is balanced against the public's right to know, and to discuss this case on the 6 o'clock news," Schaefer said. "I would suggest that that's a pretty easy call."
Westerfield's attorneys will return to court tomorrow to ask Superior Court Judge William Mudd to allow them to review personnel records of 13 officers involved in the investigation. The defense attorneys argue in court papers that two detectives who interrogated Westerfield have a past that includes allegations of "excessive force and dishonesty."
Cummins, on behalf of the media, will ask Mudd to reconsider his ruling ordering all pretrial motions sealed until May 6. She also will ask the judge to lift a gag order in the case, and lift an order barring TV coverage of pretrial proceedings.
Members of the San Diego news media have been eager to gain access to those records for several months, but Westerfield's lawyers have objected, arguing that the affidavits may paint an inaccurate picture of the investigation.
In Wednesday's hearing Judge Richard Hoffman offered a reason as to why the affidavits might taint the public's view of Westerfield (pictured, right).
"It is legitimate in a search warrant to use hearsay, it is legitimate to use multiple layers of hearsay. It is legitimate to use items that are not admissible as evidence. And it is legitimate for a search warrant to actually be erroneous, as long as it's rendered in good faith and a reasonable officer and a reasonable magistrate would have believed it at the time," Hoffman said.
Union-Tribune attorney Guylyn Cummins told 10News that she hopes the court will rule on the side of the news media.
"Obviously, we believe the public is entitled to access to these records," Cummins said.
The court has said that the affidavits would be released after the trial, but Cummins has argued that the documents need to be released now because "we don't have a secret arrest system."
"It's important for the public to be able to monitor the search warrant system, as much as the judicial process," she said.
( 04-17-2002 ) - Attorneys for accused child killer David Westerfield returned to court Wednesday to fight to keep legal documents out of the news, as an attorney for the Union Tribune was asking a panel of judges to unseal search warrant affidavits for public scrutiny.
Defense attorneys argue that it would violate Westerfield's right to a fair trial in the Danielle van Dam murder.
After hearing arguments from David Westerfield's attorney and a lawyer from the Union Tribune Newspaper, the Court of Appeals judges will now decide if search warrants and affidavits, the statements contained in the search warrants, will be unsealed in the case.
The three judges listened to both sides for about an hour about a defendant's right to get a fair trial vs. the public's right to know.
The media is arguing that much of the sealed information has already been revealed in open court during David Westerfield's preliminary hearing, and that the remaining material should be made available.
However, Westerfield's attorney is arguing that the first amendment doesn't necessarily entitle the police statements to become public record. Thus, perhaps interfering with David Westerfield's right to get a fair trial.
"Numerous high profile trials in this century and the last century. That alone, even in the Nebraska press case in a community the size of 80,000, was not enough to trump the publics right to know. And the Supreme Court painstakingly said exactly how high the hurdles and the burden are," said Union Tribune Attorney, Gulin Cummins.
"Mr. Westerfield's right to receive a fair trial in this case, in which his life is potentially at stake, is balanced against the public's right to know and to discuss this case on the six o'clock news. I would suggest that that's a pretty easy call. There's been so much publicity in this case," said Westerfield's attorney, Laura Schaefer.
A deputy district attorney also spoke before the panel Wednesday afternoon, stating that he believed in the public's right to know, as well as media access. But he also said that a complete unsealing of the information could perhaps damage David Westerfield's case.
The judges should make a ruling by the end of this week.
I don't see why we should have to wait until after the trial. They could be released once the jury is seated, and that would be fair enough to all parties. The affies should be made public during the trial, along with the details of the motions that have been filed.
I guess this pretty much settles the change of venue issue. Most "experts" thought they'd ask for a changein venue. Seems maybe they won't, from this.
It is a good time of the year.
Problem for the media is this information will sell more papers before the trial, than it will after the trial. So they want it NOW!
Weather's too nice, it's T-ball season. I think I'll let God and the jury sort it out. And of course after the jury has sorted it out, the public will give a big yawn over the release of all the sealed documents, man, it's over, who cares, move on. Only a few (us junkies) will still be interested and we can argue the merits of the case till doomsday with or without the information!
I hope the judge tells 'em tough nuts.
Westerfield Lawyers Fight For Police Personnel Files:U-T asks court to unseal papers on Westerfield.
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