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.
That said, there are some things that can be checked out from the posting. For instance, Steve Yunker does seem to be an attorney in the San Diego area; however, most of what I can find on him indicates he works primarily on migrant worker issues--largely pro bono it appears.
While we can't verify the condition of the body when they found it, I can say that when one of our cows died, when we finally found her, we didn't exactly find all of her. We probably have some of the same predatory critters that can be found in the CA desert--coyotes, buzzards, etc. That description might be accurate, but it might also be a good guess.
We can be pretty sure, too, that BVD had a hairdresser and nail specialist over at some point--look at the pictures of her around that time, and how she appeared on the various television shows. Not a hair out of place, perfect nails. There's no way of knowing, though, if she preferred Katie Couric to another interviewer. Me, I'd be relieved to be interviewed by someone (anyone!) else, but who knows.
I am going to post my #174 for you to read, and you can link back to it and watch the REAL flying monkeys go out to do the Witch's dirty work.
One last thing, Fresno will not address the question possed to him, as with the rest of the coven, they hate it when someone ruins their witche's brew.
To: FresnoDA
"Attorneys for Westerfield – the Sabre Springs man charged with kidnapping and murdering 7-year-old Danielle – said the gag order was necessary to keep misleading information and "inadmissible evidence" from becoming public."
Seems this order was more to "protect" the Brenda and Damon VD "secrets" with regards to their pizza parties, rather than to protect Westerfield.......interesting...
ROTFLMAO!!!!!!!!
That's about the dumbest thing to date! Westerfield's attorney is conspiring to keep the van Dam's image clean!
BWAHAHAHAHAHA!!!!!!!!!!!!
Your 15 minutes are almost up.....
183 posted on 3/9/02 9:27 AM Pacific by Luis Gonzalez
[ Post Reply | Private Reply | To 174 | View Replies | Report Abuse ]
The GAG order works in favor of the VD's because is prevents their embarrassing private life from coming to the public's eye.
My statement, Seems this order was more to "protect" the Brenda and Damon VD "secrets" with regards to their pizza parties, rather than to protect Westerfield.......interesting... was in effect, rhetorical.
Didn't know that each word and phrase will need to be parsed, lest someone become confused or enraged.
As for 15 minutes of fame is almost up?
183 posted on 3/9/02 9:27 AM Pacific by Luis Gonzalez
262 posted on 3/9/02 1:56 PM Pacific by Luis Gonzalez
Seems you have spent a lot more than 15 minutes flattering yourself........
We were originally told that while there was some blackening and incipient decomposition, the body was entire and no signs of attack by any animals was evident.
Now a poster back about 50 or so claims the body had largely had its soft parts eaten away and was in such bad shape it could scarcely evidence ANYTHING. I would have thought that had this latter posting been the case, LE would have quickly stated that since it would dramatically let them off the hook and make it such that no one would much look to the autopsy and forensics to confirm/deny ANYTHING.
Instead, we had this statement that she was clean and unhurt, no bones broken, ...(much else)...but yet apparently it failed to indicate molestation or even give hints as to cause of death...Who is right?
Doubt it is the later poster.
Source: "AS WE SHARE OUR MEALS WITH THE RESIDENTS, they sometimes tell us about employers who withhold their wages or pay less than the minimum wage. In such cases, Steve Yunker, an attorney in our parish, volunteers to contact the employers. He sends them a letter demanding payment and advises the workers on settling the matters in small-claims court. Most of the judgments in these courts have been successful, but few are able to collect their back pay.
Source:Beaten Migrants To Settle Civil CaseWorkers To Be Awarded Over $1 MillionSAN DIEGO, 4:45 p.m. PDT July 6, 2001 -- A judge approved a settlement Friday in a civil case for two out of eight Rancho Penasquitos teenage boys accused of beating and traumatizing five migrant workers last July, 10News reported.
The families of another two of the teens also reached a tentative settlement agreement, which is expected to be approved by Judge Mac Amos next week.
Attorney for the plantiffs, Steve Yunker, verified to 10News that the families of four of the boys had agreed to settle the case. The families of Michael Rose, Kevin Williams, Bradley Davidofsky and Morgan Manduley reached an agreement that would award the plaintiffs a total of $1 million.
All eight teens were named in the civil suit alleging that they violated the men's civil rights, accusing them of battery, assault, and intentional infliction of emotional distress.
The suit also names parents and step-parents of the teens, accusing them of negligent supervision.
The teens allegedly shot at the men with pellet guns, beat them with sticks and pipes and robbed them at their migrant encampment.
If the judge approves the settlement Friday, the four settling families will be completely removed from the civil suit, according to an attorney for one of the teens.
All eight teens still face a criminal case, which is in judical limbo.
The state supreme court still must decide whether or not the teens can be tried as adults as directed by Proposition 21.
Proposition 21, approved by nearly two-thirds of voters March 2000, required youths 14 and older to be tried in adult court for murder and sexual assaults and allows prosecutors, rather than judges, to decide whether youths will be tried in adult court for other serious crimes.
None of the criminal attorneys would make an official comment, but those 10News spoke with said they do not feel the settlement would affect their case in any way.
Along with the strange happenings, I cannot get out of my mind why someone if they knew they had a body in their RV would they wait til 9:30 am to leave, anticipating the child would be found missing sooner(but did he really leave at that time and is there evidence of that?).why go to a campground (silver strand beach) Link that you know has Park Rangers & risk geting caught, not a more isolated spot, (unless you want to be remembered?)...and where were the brothers during all this? Have they been removed from the home even temporarily by the Child Protective Services and what do they have to say???...Oh yes what was the "evidence" the police found in his SUV to get the first warrants and why have we not heard more about that?
Oh please! Protect them from what?
Here's a hint, there are two attorneys in the room with me right now, and they would love to hear how what the van Dams may have been doing that evening may somehow alleviate the burden of guilt that whoever murdered Danielle must shoulder.
We're going out to dinner now, we look forward to your learned response.
I think Westerfield is staying in jail (or in the hospital) under protective custody, because if he was released, his life is in jeopardy from the lynch mob mentality.
He said Not Guilty, and as it looks, all signs point to him. My husband says "he did it". I'm still trying to figure out HOW he did it, if he did.
I could probably qualify for jury duty on this one, wanting to hear all the evidence...and for once, for me, that's a good thing.
sw
Not molestation, not rape, not stranger abduction or kidnapping, not murder. Seems likely he did not administer pills. Was she given cocaine? But he probably didn't do that either. From his busy route around the desert and beach, it doesn't look like Westerfield was the one who dropped a body at Dehesa, after visiting so many other more likely places.
What room, a motel room? Ewww.....
We're going out to dinner now, we look forward to your learned response.
Are you buying L.G.?? If so, remind your attorney guest to use plenty of salt and steak sauce, they sound like tough attorneys......
STAND BY FOR LEARNED RESPONSE........3......2......1.......
There were a couple of statements made by the attorneys yesterday....
DAVID WESTERFIELD WINS THE DAY
(Video)
FELDMAN: The problem is the damage is legitimately done your Honor. We are trying to dam (no pun intended I am sure!! FDA) the damage. Preclude any further damage.
VOICE OVER: Steven Feldman the Attorney for David Westerfield says that the dam has already burst making the argument in front of the Superior Court Judge that it will be impossible for his client to receive a fair trial with so much media attention.
FELDMAN: We don’t need the press publishing evidence that is inadmissible in Court that is obtained through improper leaks and that’s what is happening in this case.
VOICE OVER: Feldman asked the judge to issue a gag order meaning no one associated with the case could discuss it outside the courtroom. He says Police investigators have already said too much and suspects them of leaking information to the media.
FELDMAN: Not only these anonymous sources, and we know the Chief of Police of SanDiego County in a News Conference on the day of Mr. Westerfield’s arrest basically announced Mr. Westerfield is guilty.
VOICE OVER: Guylan Cummins attorney representing Ten News and other news media outlet argued against the gag order.
CUMMINS: It is virtually impossible for a court to find that pre-trial publicity was so prejudiced and slanted to the community that twelve people cannot be found to sit as a jury.
VOICE OVER: A point that Cummins thought would convince the judge to deny the gag order motion. Strike up one for the defense.
CUMMINS: Well I am actually disappointed and I am sure the press is too. Ummm…as I said this morning that proper disclosure is very important public information..
NEWS REPORTER: Adding fuel to Feldman’s fire is the fact that these Police Investigators went to see Mr. Westerfield while he was in jail. That was a violation of the Fifth Amendment according to Steven Feldman; and what Cummins said to me just a short while ago, “Probably won’t have much of an impact on the prosecution or the defense but it will have an impact of what the Police can say out in the public. And of course the Preliminary Hearing is set for David Westerfield on Monday at 10:00 AM.
The upcoming Preliminary Hearing is considered part of the "discovery process," where the defendant is entitled to learn all that the prosecution knows. However, remember that::
1. The prosecution calls each of their witnesses and leads them through a very basic introduction of what the witness will testify to at trial. But the prosecutor controls the testimony by not asking them everything, and by steering them away if the witness begins to divulge details the D.A. doesn't want revealed because he wants to protect the element of surprise.
2. The defense then gets to question the witness. But if the witness has details which could lend credibility at trial, which the defense can't elicit at the Prelim because he doesn't even know they exist, then the defense isn't privy to all the cards the D.A. holds.
3. How much the D.A. allows revealed at the Prelim may depend upon a variety of factors; is he looking to plea-bargain the defendant because his case has problems which might jeopardize victory at trial? On the other hand, the more airtight his case is, the more he may allow to be revealed by his witnesses, etc.
In any event, remember that there are many facts you're just not going to get until the trial because the D.A. will protect a certain element of surprise to the prosecution's advantage. Their contention is that they made the witness available and presented the key evidence. If there are details "supporting" proof that the defense fails to elicit, then that's due to the defense's incompetence, not the prosecution's failure to make it available to him. But the defense knows this and will cover every angle he can think of.
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| Address: | Suite 1160 550 West C St San Diego, CA 92101-3532 |
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| Phone: | (619) 233-5500 |
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| Fax: | (619) 233-5535 |
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Yunker, Stephen - Yunker & Schneider 550 W C St # 1160 San Diego, CA (619) 233-5500
Or, since he plays both sides of the litigation fence (defendant and plaintiff), maybe the VDs are worried about someone coming after their assets!
In spite of nasty man bashing, most men (especially those married to the bio mother) do not molest/kill their own bio children. Feminists have been skewing the statistics for years by lumping live in boyfriends and stepdads with bio fathers and husbands in intact families. So I am not weighting such speculations very heavily. Family members are always the first suspects and I'm sure SDPD explored this avenue but then settled on abduction for reasons not made known to the public.
Only sparse preliminary autopsy info was given out. With the gag order in place, that is all the information we will have until trial. It doesn't give us much, because mostly it was simply given out that it was definitely Danielle, and that cause of death could not be immediately determined. Why it couldn't be determined is not given, was it because there wasn't enough left to determine anything, or that its simply not one of the obvious types that will show up in prelim. But it is safe to assume that it was not a blunt force to the skull, broken neck or back. We can't guess at anything else unless/until we know if animals did/did not destroy evidence of anything else.
Yes and no. Some media accounts quote and cite who said what and when. They give the names and positions of the persons quoted. Presumably, the named, quoted sources stand by their statements. That is not gossip.
However, when media start using unnamed sources, it begins to move into gossip. One then has to discern the reliability of the media/journalist involved, are they credible people or journalists who make stuff up and pretend to have sources.
Bob Woodward comes to mind, having claimed to interview CIA director whatisface</slipped memory disc> on his death bed, but all family and medical personnel state that Woodward was not allowed in, and that the patient was in irreversible coma at time of alledged interview.
Doesn't mean gossip can't be true, but that it can not be given equal validity to named/cited/sourced statements. Unless and until a named source verifies its truthfulness.
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