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.
sw
With no evidence of a break-in--indeed, with a drop of burglary charges--how did he get access to the home? The VD claim he wasn't invited but Mrs. VD's story has altered over the weeks. What is consistant is that they didn't check on the children. Also, how is it she was carried out without waking and screaming? In a similar abduction case in Riverside, the 7 or 8 yr old girl woke and screamed and the parents woke up immediately. The girl was recovered alive. The perp arrested. In that case, the father had left multiple doors unlocked or open.
How did Westerfield get access?
BREAKING: Gag order denied (per KOGO announcement).
Anybody who has ever been around kids knows that they frequently get saliva and blood everywhere they go. It's perfectly normal for a child to fall or bump himself, happens all the time.
Why are single men so often assumed to be pervs?
Just kiddin...
sw
Westerfield, 50, who lives two doors down from the van Dam home, is accused of kidnapping and murdering 7-year-old Danielle van Dam.
He's being held without bail and faces a preliminary hearing on Monday.
Meanwhile, two San Diego police detectives who attempted to visit Westerfield in his jail cell one day after Danielle's body was found acted inappropriately, a police captain said. "I have confirmed that that did happen," Capt. Ron Newman said.
Given the fact Westerfield is represented by counsel, "I question the appropriateness of it," he said.
"I'm sure the detectives felt that it was the appropriate thing to do, given the set of circumstances they were under," he said. "But we will be handling that internally. So it's not something that we would normally do. In fact, we should not be doing it, frankly."
Newman said Westerfield refused to talk to the detectives on Feb. 28, then called his attorney to report the attempted questioning.
In a motion filed in Superior Court following the attempted visit, defense attorney Steven Feldman asked a judge to issue an order prohibiting law enforcement from contacting Westerfield except through counsel.
Feldman said that the actions of the detectives was improper since they knew Westerfield had retained legal representation.
"This court has a duty to protect Mr. Westerfield from police misconduct, especially when it is put on notice that misconduct has occurred," Feldman wrote.
I hadn't heard that before, very interesting for just an aquaintance of the parents...that is exculpatory in my book..looks like the smoking gun is cooling off...any more interesting tidbits?
Excellent point! I am a single female, and a grandmother. The kids in my building frequently came to my door to talk to me, and often asked me if they could come in. I would always sit out in the hallway with them rather than allow them in my apartment. I loved the fact that little ones wanted to talk to me but there was no way I was going to leave myself vulnerable to accusations of impropriety.
I think it's time for the Feds to get involved. Then any little arrangements that have been made to ensure this guy goes free go right out the window.
Then maybe Westerfield will tell the rest of the story.
I have a picture right here on my bookcase of my nephews when they were 2, 5, and 7, and I hope the police never come in here, if they do I will blame Olan Mills and the childrens' mother, who sent it to me.
Also, in an attempt to have any charge to hold him on (IMHO he may WANT to be held, in view of what a lot of FReepers irresponsibly have posted)...this thing of "desertion" is listed, which apparently involved an informal exit from the military back in 1973. Those are never prosecuted NOW.
It does not seem, from all we have in the public domain, that the girl was murdered in any brutal or even discernable way, nor was she sexually molested in any violent or even obvious way, perhaps not even touched in that sense at all.
Looks like nothing more than an overdose of pills, and now it develops that while Westerfield's fingerprints may have been found SOMEwhere, they weren't necessarily in Danielle's room!
Where is the evidence this man is guilty of a crime, or even of having any more interest in Danielle than in a poodle down the street the other way?
Minipark near her home may be renamed to honor Danielle
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 UNION-TRIBUNE March 8, 2002 The Mountain Pass Road minipark where Danielle van Dam often played may be renamed in her honor. Scott Crider, a spokesman for San Diego City Councilman Brian Maienschein, said Maienschein's office is looking into that possibility. The park in Sabre Springs is now called Sabre Highlands Mini Park.
"Of course we will have to talk to the community and pursue it further with the family," Crider said. "Right now, though, it's in the very preliminary stages. But a friend of the family did say the van Dams were pleased with the suggestion." The 7-year-old, who was kidnapped from her bedroom, was reported missing Feb. 2. Her body was found last week off Dehesa Road in East County. |
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