Judge: Some Westerfield case motions to remain sealed

San Diego North County Times ^ | May 3, 2002 | Kimberly Epler --Staff Writer

[It's me]

SAN DIEGO ---- Court papers outlining defense arguments to suppress statements made by accused child murderer David Westerfield to police and evidence collected from his property will remain under seal for now, a judge ruled Thursday.

Other court papers, including a defense motion to sequester the jury when the case goes to trial, will be released Monday, Superior Court Judge William Mudd ruled. The prosecution is opposed to keeping a jury in a hotel for what is expected to be a three- to five-week-long trial.

Westerfield, 50, is accused of kidnapping and murdering his 7-year-old neighbor, Danielle van Dam. Her body was found nearly four weeks after she was reported missing from her Sabre Springs home Feb. 2.

Westerfield faces the death penalty if convicted. He has pleaded not guilty. Jury selection is scheduled to begin May 17.

On Thursday, Mudd said a prosecution request to limit testimony about the lifestyle of Danielle's parents also will remain under seal until he decides what, if any, aspects of their private lives will be open for discussion during the trial.

At Westerfield's preliminary hearing, Brenda and Damon van Dam testified about smoking marijuana the night they last saw Danielle and Damon van Dam said that he kissed one of his wife's female friends who came to the house that night.

Mudd said releasing the documents now could "excessively invade the privacy of Mr. and Mrs. van Dam." He will make public the prosecution's request to limit questions about drug and alcohol use.

Most of the motions Mudd ordered to remain under wraps deal with hard facts of the case. One of the documents lays out the evidence prosecutors will use to try to convince jurors to recommend the death penalty, if Westerfield is convicted. Several documents center on what evidence jurors will be allowed to hear at trial.

The motions also give glimpses into the legal strategies that the prosecution and the defense likely will present during the trial.

In contrast, the papers being released Monday are more run-of-the-mill process issues, such as whether jurors will be allowed to see crime scene photographs, hear the 911 call Danielle's mother made to police, and what attorneys can address in their opening statements.

An attorney representing the North County Times and other media groups said the court has to meet a high standard to seal such documents.

"This is a sweeping seal order, and I have concerns that not all of the documents sealed can constitutionally be sealed," attorney Guylyn Cummins said.

Next week, Mudd has scheduled a series of hearings to consider the attorneys' requests. Some of those hearings may be closed to the public. Mudd said he will make that decision on a "motion by motion basis."

As for the motion to sequester the jury, private defense attorney Kerry Steigerwalt said he thinks there is a good chance Mudd will grant it.

"I think that's a reasonable request in light of all the reports coming out in the press, some accurate, some not accurate," Steigerwalt said. "It's a perfect way to preserve the integrity of the jury, because the jury is supposed to decide the case only on admissible evidence.

"Sometimes in cases as high profile as this, it's impossible not to absorb information from outside the courtroom," he said.

Another motion hints that the defense is going to try to argue that a person other than Westerfield committed the crime. The prosecution has asked for a hearing to determine whether the defense has any evidence of third party culpability.

Westerfield's attorneys have previously made an issue about the number of people in and out of the van Dam house the last night Danielle was seen alive.

At Westerfield's preliminary hearing, Westerfield's defense attorneys tried to question the van Dams about whether they were engaged in a "swingers" lifestyle. A judge cut off the questioning. The defense also has hinted that whoever killed Danielle would have to have known the van Dams' house.

The next hearing in the case is scheduled for Tuesday.

[It's me]

defense motion to sequester the jury when the case goes to trial

So, the jurors will be retired. Who can be sequestered for 4 - 5 weeks? There will be no jurrors who will be mothers with children at home. How lucky for Westerfield...

He has one smart defense attorney!

[FriarTom]

One smart attorney?

Yes, I believe he does have a very capable attorney, as is his right. I would expect Feldman to provide his client with every possible advantage, in order to offset the blatant adulterating of the jury pool by the DA's office. One only needs to listen to the radio anywhere in San Diego to notice that there is an obvious presumption of David Westerfield's guilt within our community. The ladies and gentlemen of the jury will be selected from that community. Now, if one derives all knowledge of the specifics of this case from the media--and many people do--one's opinion will naturally be influenced by the media's interpretation of the story. Try as they might, even the media has problems maintaining objectivity in a case where a seven-year-old girl has been brutalized.

It is Feldman's job to counter this distinct disadvantage on behalf of his client. Sequestering the jury is advantageous to Westerfield, because it limits the number of parents who might be selected. This is important because a parent, obviously, is much more likely to internalize the tragedy of this crime, and allow his or her decision to be affected by empathic feelings, rather than by well-rationed analysis. It would be unfair, IMHO, for David Westerfield's fate to be decided by individuals who might have an inherent, unreasoning bias against him.

I am hoping Feldman continues to prove himself competent. The DA's office better show up in court well-prepared and with better evidence than the speculation and highly debatable physical evidence we have seen. If not, Westerfield will walk and, much as when O.J. Simpson was acquitted, the nation will be shocked.