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 curious about Mrs. VD's latest claims that he had been interested in getting to know her adult female friends and that the Friday meeting was, in a sense, pre-planned. She'd said, I think on the 'Most Wanted' bit, she told him they could meet and she would introduce him around if she could find a baby sitter. Did she find a baby sitter other than the father? Was the father there all night as claimed--there's been at least one allegation on these threads that she was not? Per Mrs. VD, Westerfield bought drinks for the women as well. It seems odd, to me, that a paedophile would be interested in using Mrs. VD to get to know one of her adult woman friends if his target was really Danielle. From her account, she seemed to be rude to her neighbor and attempted to deter mixing of friends. Perhaps she'd met up with members of the swingers circle and he had intruded.
The upcoming preliminary will, hopefully, shed considerable light on this case.
Downtown Office
City Administration
202 C Street, MS #10A
San Diego, CA 92101
Telephone: (619) 236-6655
From North County:
(858) 673-5304
Telecopier/Receiver (FAX):
(619) 238-0915
Email: bmaienschein@cd5.sannet.gov
Most children who are not where parents expect them to be, are "missing" for a very short period of time and reappear on their own, with no evidence of foul play. However, some children are missing against their will. The great majority of those children, even though they have undergone a traumatic experience, are not harmed seriously and are returned home alive. Many of them are taken by estranged parents or other family members. A small group is victimized by more predatory abductors, who want to make money by ransoming the child, to sexually molest the victim, and/or to kill the child. The list of children who are abducted and killed each year by someone who is not a family member is relatively small, compared to the number of missing children or to other types of child murder.
Because of their rarity among criminal homicides their complexity, emotion and high profile nature, they are extremely difficult to investigate. This research was undertaken in an effort to better understand these types of murders, and to identify investigative techniques and strategies that will improve the efficiency and effectiveness of the criminal investigations and the apprehension rate of the murderers who abduct children. The focus is on cases of child murder in which the victims were abducted or, at the time of the initial report to the police, were suspected to have been abducted.
The murder of a child who is abducted by a stranger is a rare event. There are estimated to be about 100 such incidents in the United States each year, less than one-half of one percent of the murders committed. There is approximately one child abduction murder for every 10,000 reports of a missing child.
The victims of these cases are "average" children, leading normal lives, and living with normal families, typical low-risk victims. The vast majority of them are girls (76%), with the average age being slightly over 11 years of age. In 80% of cases, the initial contact between the victim and killer is within 1/4 mile of the victim's residence.
These cases are generally reported to a law enforcement agency as a "missing child" (58%). Often there is no initial indication of foul play, just a report that the child is missing or runaway. This is a difficult time for the investigator; not knowing whether the "missing child" is late or has been abducted. The investigator is in a position of having to decide on a course of action when time could be a very critical factor.
Any report of a missing child should be taken seriously. As many facts as possible surrounding the disappearance should be obtained as fast as possible, and an assessment of the nature of the case made expeditiously. Factors to consider in assessing the case should include the age of the child, the circumstances surrounding the child's missing status, and the history of the child.
Fast action is necessary since, 1) there is typically over a two hour delay in making the initial missing child report (60%), and 2) the vast majority (74%) of the abducted children who are murdered are dead within three hours of the abduction. Because of these critical time features, it is important to respond quickly with a neighborhood canvass and search of the area. Over half (57%) of these child abduction murders are committed by a killer who is a stranger to the victim. Family involvement in this type of case is infrequent (9%). However, the relationship between the victim and the killer varies with the gender and age of the victim. The youngest females, 1-5 years old, tend to be killed by friends or acquaintances (64%), while the oldest females, 16-17 years old, tend to be killed by strangers (also 64%). The relationship between the killer and victim is different for the male victims. The youngest male victims (1-5 years old) are most likely to be killed by strangers (also 64%), as are the teenage males (13-15 years old, 60% and 16-17 years old, 58%).
The average age of killers of abducted children is around 27 years old.
They are predominantly unmarried (85%) and half of them (51%) either live alone (17%) or with their parents (34%). Half of them are unemployed, and those that are employed work in unskilled or semi-skilled labor occupations. Therefore, the killers can generally be characterized as "social marginals."
Almost two-thirds of the killers (61%) had prior arrests for violent crimes, with slightly more than half of the killers' prior crimes (53%) committed against children. The most frequent prior crimes against children were rape (31% of killers) and other sexual assault (45% of killers). Sixty-seven percent of the child abduction murderers' prior crimes were similar in M.O. to the murder that was committed by the same killer. Commonly, the killers are at the initial victim-killer contact site for a legitimate reason (66%). They either lived in the area (29%) or were engaging in some normal activity.
Most of the victims of child abduction murder are victims of opportunity (57%). Only in 14 percent of cases did the killer choose his victim because of some physical characteristic of the victim. The primary motivation for the child abduction murder is sexual assault.
After the victim has been killed, 52 percent of the bodies are concealed to prevent discovery. In only 9% of cases is the body openly placed to insure its discovery. When searching for the victim, searchers must be aware of this fact and look under branches, rugs, or debris. The fact that so many of the bodies are concealed also requires that searchers be placed at intervals approximately equal to the height of the victim. A unique pattern of distance relationships exists in child abduction murders. The initial contact site is within 1/4 mile of the victim's last known location in 80% of cases. Conversely, the distance between the initial contact site and the murder site increases to distances greater than 1/4 mile (54%). The distance from the murder site to the body recovery site again decreases, to less than 200 feet in 72 percent of cases.
There are investigative implications of these spatial relationships. If the initial contact site is not identified by the police, the clearance rate drops drastically, and vice versa. The close proximity between the initial contact site and the victim's last known location suggests that a thorough neighborhood canvass and area search be completed to locate the initial contact site.
Similarly, knowledge of the location of the murder is important to the investigation. The murder site is second only to the body of the victim as a source of physical evidence that can be connected with the killer. Its close proximity to the body recovery site suggests that a thorough search be conducted to locate it.
It was discovered that once the murder investigation has begun, the name of the killer is known to the police within the first week in 74% of cases. This provides an opportunity for investigators who are stalled regroup after a week or two, and evaluate everyone connected with the investigation. Likewise, it is not uncommon for the police to have actual contact with the killer before he becomes a primary suspect, for example, during the initial neighborhood canvass. While at times the media seems to "get in the way," in the end they are much more likely to have a positive effect on the investigation (31% of cases) than a negative one (6% of cases). In short, the media are more likely to bring witnesses forward than to aid the killer in his escape. The media had no effect at all in 63% of the investigations.
One question answered by this research is: What can we tell parents to help them protect their child? Even though child abduction murders are rare events, the thing for parents to do is to eliminate, or minimize, the opportunity for their children to become victims. The first step is to be aware that children are not immune from abduction because they are close to home. In fact, well over half of these abductions that led to murder took place within three city blocks of the victim's home and approximately one-third of them within one-half block. (It is probably not a good idea to send an unescorted ten year old girl to the grocery store to buy a quart of milk.) The greatest single thing we can do as parents is to be certain that our children are supervised, even if they are in their own front yard.
There has been much publicity about, "not speaking to strangers" and "not getting into cars with strangers." We should carry that precaution one step further. We should also educate our children not to even approach a car, whether the occupant of the car is a stranger or not. We should tell our children, "if someone offers a ride, asks for directions, or offers treats, turn around and run to a safe place, and tell (their guardian)." Citizens need to be aware of strangers and unusual behavior in their neighborhoods. They need to have the presence of mind to observe and to write down descriptions of people, vehicles, and license numbers. Many child abductions are witnessed by people who do not realize that a crime is being committed. For example, when a citizen observes an adult pulling a struggling child in a public place, it is easy to interpret the event as a guardian taking control of an unruly child. In fact, in most instances, that is exactly what it is. However, nothing prevents a citizen from evaluating the circumstances closer, perhaps intervening, and certainly, noting descrip tions and licenses numbers.
Last, we need to tell parents that if their child is unaccounted for, call the police immediately. Do not delay.
Mr W must have been very busy for long hours if he was paying for this kind of home and life style.
Now that it looks like they have taken down their claim that they did not know him, and it looks like they DID know him fairly WELL....
What is to keep us from thinking that he allowed the girl to come in and play there, play and imagine it were her home, serve tea, etc. Was the door even kept locked? It would seem NOT!
Now we find that the girl's mother had been in the (motor) home! When, and how many times, and what was the last time?
Wasn't there a film called Ice Storm about 70's swingers which starred Kevin Kline & Sigourney Weaver? Random partners matched up by males placing car keys in a bowl and women selected them and each couple retreated to a different room of the home. The difference in the VD case rumors is that such behavior was apparently contained to the garage. But was that true all the time, if indeed, they engaged in such things?
Yes, I feel it is contributing to the deterioration of our society when decent people are afraid to show their love for children.
I had another experience on my way to the train station one morning. It was 6:30 in the morning and I have no idea why a young child would be on the street at that time. I held out my hand to him to help him safely cross the street--he was afraid to take my hand. Fortunately, he did stay close to me and made it across okay.
If you think the "evidence" against the accused is fading fast, think again.
Regardless of what the van Dam's have said (or reported to have said in print media), the SDPD has been very consistent in their statements (as sparse as it has been).
1. That they determined after the missing persons report they had "reason to believe she had been abducted from her bed". They then conducted a neigborhood search and canvass.
2. They have a primary suspect in the first week.
3. They get warrants and do searches. They take a lot of "evidence".
4. They arrest suspect and announce both DNA and blood evidence connecting the killer to the victim and the victim to the killer. Even in the absence of a murder scene and body
So far this case has followed the play book.
I had not read this. Not that I do not believe you, but where did you see this? thanks
And no motive.
3 weeks now since I first posted, that she was either dead when she went out the door of her home, or did so on her own feet of her own free will. That still is important.
To poster above, every bit of info in my VD file has come from postings on FR. Every scrap. I would say that in the last 500 postings about VD, 20 have alleged that Brenda van Dam was in this motor home at one time or another, and some gave their reasons for saying so, but I am not the source, they are.
As for the porn charge. California has a legal definition and some of the pictures in his possession met that definition. Ignorance or inability to discern the age of the minor, is not a defense to the charge.
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