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.
I'm reading up on the dna stuff you guys posted. This will take me a few..science has never been my favorite topic. iick..but I will try.
sw
sw
That means they're all the same? WOW..a new twist.. I first thought it mean the samples would be all different.. But, teh other dna in the same sample would show it's not brenda...right?
No, the bottom line is what method of testing have they used? We don't know, and there are other tests that would exclude the mother. Police statements to the press indicate that they are sure it is Danielle's blood and no one other's.
And now that they have her body, they can do even more conclusive tests.
Westerfield was charged using the findings of this particular DNA test, before the body was found. THAT's the point.
I don't know what happens now. Remember, they only extracted a pin-point and needed to save the rest of the samples, if they didn't screw it up, lose it or contaminate it. (Back to the OJ trial).
sw
Intheknow
Posted on Friday, March 08, 2002 - 08:33 pm:I work in the media and this is what I know:
* I know The Van Dams do have an attorney, and have had an attorney since day one of Danielle missing. His name is Steve Yunker, and he is qouted in the print media. Not local print media, however, because, well...they suck.
* I know the following is very graphic so if you don't want to read further...don't.
Danielles body was found in such a condition that it will be nearly impossible to find any of Westerfield, or others, DNA (sperm) on it. The animals ate much of her. Animals go for soft tissue first. Many seasoned cops on the scene threw up. The investigators were forced to look through the surrounding area through animal feces for body parts like fingers. The searchers that came upon her body can not sleep at night, nor can the police on the scene.
* I know that KUSI is very angry with this message board.(KUSI LOCAL TV STATION IN SAN DIEGO)
* I know that the PR and legal representation for the Van Dams manipulated police into ignoring trace amounts of cocaine found in their house. The Van Dams pr/legal group told police it was probably brought in by the other guests in the home that night. One of those guests has an attorney and refused to take a polygraph.
* I know that Brenda Van Dam had a hairstylist come to her house 3 days after her daughter went missing to have her hair done around 1:30 am to be on the Today Show. Brenda was upset Katie Courik didn't do the interview.
* I know that some members of the Laura Recovery Search team found Brenda's reaction to her daughters death very credible, but have their doubts about Damon's reaction.
This is what I know. I won't post again until Monday at the same time.
I work in the media and this is what I know:
Right, very credible, anyone can say anything, and claim to be anyone. It's a great way for cranks to exercise their desires for attention and notoriety.
Other media accounts state the searchers and finders have steadfastly refused to give accounts of the body's condition.
But Mr. Media Intheknow has scooped them all, at posted it on a chat board, instead of getting his own byline. Right.
Val? Any thoughts?
sw
It may or not may not be credible. However, I did find it interesting enough to post here as a speculative item.
I recall reading the transcript of the Chief of Police's statements about the DNA and came away feeling he was not exactly certain about what he said and was corrected about the DNA in the victim's bedroom...can't locate the transcript now to the press conference..does anyone have it.. Friday February 22, 2002
Three things on the other side that stick with me are 1)he dropped off clothes at the cleaners the monday he returned from his trip and he was 'barefoot"..what time did he go to the cleaners and was it before or after he had an opportunity to obtain shoes? I am not putting much into this as one person owning a large 35 foot luxury motorhome probably had extra shoes or at least beach sandals in it along with a change of clothes and jackets for desert and beach weather, probably an extra for guests...I know it is common for Rv & boaters to do that.. 2) The conversation he had out in the desert when he was stuck according to reports indicated he had left his trailer in El Centro because it had a flat..that if untrue shows deception...3)did he or did he not dance with Brenda at Dad's? both had friends there to confirm or deny the story, which is it?
I'll also be curious to see how this case progresses -- how much information will be made public, Westerfield's defense strategy, the behavior of Van Dam's, etc.
Until you a person willing to state, I saw with my own eyes, I was there, I have personal first hand knowledge as to whether it did or did not occur. It is gossip and gossip has amazing powers to be dead right and wildly wrong. And there is no viable method to predict which it will be. Which is why it is far wiser to use only sourced and cited information with names attatched. It simply has a higher probability of accuracy.
By your standard, unless it is covered by the media, it is only gossip. As I said before, just because it didn't make the media, doesn't mean there are no witnesses. OTOH, the "swinging" angle did make papers who were less concerned about being sensitive and pc than papers from the SD area. Those publications were discredited. OT Question: Does this mean that those "unnamed sources" from the Clinton administration were just gossiping?
One was about as official as it can get, coming from her own mouth to John Walsh on America's Most Wanted, when she said she'd talked him the prior Wednesday and set up a date (not a going-out date, more like an appointment) to meet him at the bar. Generally, women especially, don't agree to meet strangers at a bar. I know I sure as heck wouldn't. It looks to me as though she knew him well enough to share information about her friends, and that she felt comfortable setting a date/appointment to meet him later in the week at a local bar.
The other source was in the Aussie paper (I think--I'm sure someone will correct me if it's from another source) which carried the concept just a little further, and seemed to suggest a more intimate and perhaps ongoing relationship between BVD and Mr. W.
My point is that, from the information in your post, it's possible that if Mrs. VD's blood was in the RV or on his jacket, the blood might have gotten there through other means than killing Danielle.
For that matter, if they were that close, who's to say he didn't take mom and daughter out for a day trip? If so, it could be one explanation for the blood.
However, with the gag order in place, we're left only with what the SDPD wants us to know. We already know that some of what they claimed was evidence doesn't seem to have existed after all--one article said they found a fingerprint of W's on the closet door, which now seems to have vanished; the child porn might be less than advertised, and so on. While I don't much care for trials-by-media, I would like to know (a) if there is another side to this, and (b) if so, what it is.
Damon was the last person to see Danielle alive, and he had plenty of time alone with her. He could have killed her, planted her body in Westerfields motor home. Damon seems to be the one who is getting off the hook with his lame excuses for going to bed, checking the doors, getting up, seeing the red light, going back down, etc...I mean, none of it is clear, and it's only hearsay evidence. How can any of what Damon says be proven?
OTOH, it could be nothing more than Westerfield did it, and a "cigar is just a cigar"...
sw
Aha...I've said from the beginning that for DVD to get up out of a deep sleep AND for BVD and her friends to be up partying at 2:30 - 3:30 a.m. there had to be coke involved. Brings in a possible money motive.
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