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Posted on 04/12/2002 11:17:08 PM PDT by FresnoDA
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Westerfield's attorneys argued in a motion filed with Superior Court Judge William Mudd last week that they should be able to review the personnel files of 13 officers involved in the case to see if there was any history of past misconduct.
But prosecutors said Mudd need only review the personnel records of detectives Mike Ott and Mark Keyser for the names and telephone numbers of any witnesses with information relevant to complaints received during the last five years about their credibility, or complaints about the detectives giving suspects their Miranda rights.
Ott and Keyser interviewed Westerfield on Feb. 4, two days after the girl disappeared. They also drove with the defendant on the exact 600-mile route he said he traveled the weekend Danielle van Dam turned up missing. A hearing on the "Pitchess" motion is set for April 18.
Mudd ruled Tuesday that future motions in the Westerfield case will be filed under seal until hearings scheduled for May 6. The judge also ruled there would be no TV coverage of the pretrial hearings in the case. Trial is set to begin May 17.
Other possible pretrial motions might include a defense request to move Westerfield's trial away from San Diego County, and a prosecution motion to limit inquiries into the supposed "swinging" lifestyle of the victim's parents.
Westerfield, 50, lived two doors down from the victim. He is charged with kidnapping, murder, possession of child pornography in connection with the girl's death.
He also faces a special circumstance allegation of murder during a kidnapping, which could lead to the death penalty if he is convicted. Prosecutors will announce later whether they intend to seek life in prison without parole or capital punishment should Westerfield be found guilty.
Brenda and Damon van Dam discovered their daughter missing from her upstairs bed the morning of Feb. 2. Searchers found her partially decomposed body just off an East County road on Feb. 27. In the interim, the case drew nationwide attention.
April 12, 2002
 File photo David Westerfield, charged with killing 7-year-old Danielle van Dam, eyes the lead attorney of his defense team, Steven Feldman, at his preliminary hearing. |
In an opinion shrouded in unusual secrecy, a San Diego appellate court ruled this week that a criminal defendant identified only as "John Doe" is broke and qualifies for a taxpayer-financed legal defense.
The 4th District Court of Appeal said John Doe would be allowed to keep the attorneys he hired. The defense team will be compensated by the public at a rate determined by the trial court.
The appeals court took great pains to conceal John Doe's identity, declaring he is "entitled to confidentiality." It also declined to identify what charges he faces or to say who his trial attorneys are. The Superior Court case number on the file has been X-ed out.
It's not unusual for a criminal defendant to run out of money and have the public pay the legal bills. But several First Amendment experts said they have never seen a court take such steps to conceal the information.
Such secrecy has been common in the case of Westerfield, 50, the Sabre Springs man charged with abducting and killing 7-year-old Danielle van Dam, who lived two doors away.
The murder case has drawn extensive national news coverage, and the crush of media attention has prompted extraordinary judicial secrecy. Judges in the case have sealed documents that usually are considered public. Gag orders were issued prohibiting attorneys and witnesses from talking to the media.
All of this makes it nearly impossible to confirm that Westerfield is John Doe. But there are clues:
The county was notified recently that "the issue of indigency" was being raised in the case of Westerfield, a self-employed engineer. Westerfield had requested to keep his attorneys "for the sake of continuity," said Glen Callaway, a staff officer for Walt Ekard, the county's chief administrative officer.
Money to pay the legal costs of indigent criminal defendants comes from the county government budget. Callaway said he had heard the issue was being appealed to the 4th District Court.
The 4th District's opinion overturns a decision by Superior Court Judge Peter Deddeh, who declared John Doe indigent but ruled the defendant couldn't keep his private attorneys. Deddeh was the judge of record in the Westerfield case at the time.
The appellate court ruling refers to other sealed pleadings in the John Doe case. Numerous pleadings in the Westerfield case have been sealed because of concern about media coverage.
A little more than a week before Deddeh's March 5 ruling declaring John Doe indigent, Westerfield deeded his house to his high-profile criminal defense attorneys, Steven Feldman and Robert Boyce. The Sabre Springs house is now on the market for $484,900.
Los Angeles attorney Kelli Sager, who specializes in media and First Amendment law, said she doesn't see any legal justification for the court's decision to keep John Doe's identity confidential.
"It's the public's money, so the fact that public money is used shouldn't be kept secret," Sager said.
San Diego County Public Defender Steve Carroll said courts often seal information about how much public money is spent, and the details of how it's spent, to protect a defendant's trial strategy.
But Carroll said he has never heard of a court keeping secret the fact that a defendant has been declared eligible for public money. He called the 4th District's ruling "curious."
Westerfield's legal team didn't return a phone call seeking comment. A spokeswoman for the District Attorney's Office also declined comment, citing the gag order.
The 4th District's ruling in the John Doe case was handed down Wednesday.
"There is no dispute that Doe is indigent and entitled to the appointment of an attorney at public expense," Justice Judith Haller wrote in an opinion joined by Justices Richard Huffman and Alex McDonald.
Overruling Deddeh, the justices said John Doe should be allowed to keep his current attorneys, citing "well-settled" law that a defendant should have the attorney of his choice in such cases, especially when that preference is based on "trust and confidence developed over a substantial period of time."
If Westerfield is John Doe, and he has been ruled eligible for public funds, there are reasons why his attorneys wouldn't want the public to know, some criminal defense lawyers said yesterday.
Those lawyers speculated that Westerfield's attorneys might be concerned about negative public reaction, making it harder for them to pick an unbiased jury.
Legal experts said courts routinely allow private attorneys to remain on a case at public expense after a defendant runs out of money, although the courts set various guidelines regarding how much the attorneys can charge.
Courts don't like to remove a defense attorney from a case after the attorney is already familiar with the facts and has established a rapport with his client.
The cost of mounting a defense in a complicated homicide case could reach well into six figures, said San Diego criminal defense lawyer David Bartick.
Prosecutors in the Westerfield case haven't decided whether they will seek the death penalty against Westerfield, who they believe kidnapped Danielle for the purpose of sexually assaulting her.
In capital cases, the cost of the defense can skyrocket.
The next hearing in the Westerfield case is scheduled for Thursday, when Superior Court Judge William Mudd will hear arguments on whether to give Westerfield's attorneys access to police personnel files. The trial is scheduled to begin May 17.
SAN DIEGO ---- Police dogs searching for signs of missing 7-year-old Danielle van Dam became agitated in David Westerfield's garage and alerted officers to something in the upstairs of his house and a storage area on his motor home, according to court papers filed Thursday.
The papers, which include police investigation reports, were part of the district attorney's response to defense claims that Westerfield's rights were repeatedly violated by police in the days after the Sabre Springs second-grader was reported missing Feb. 2.
Last week, Westerfield's defense attorney, Robert Boyce, filed a motion asking Judge William Mudd to look at the personnel files of 13 police investigators involved in the case.
The district attorney's office said in its response that there was no basis for reviewing the files of 11 police investigators, but did not object to Mudd reviewing the files of two detectives who spent 14 hours with Westerfield for any history of misconduct or complaints.
Westerfield, 50, is scheduled to stand trial May 17 on charges he kidnapped Danielle from her second-story bedroom and murdered her. If convicted he could face the death penalty.
All parties in the case are under a court order not to discuss it.
Danielle was last seen on Feb. 1 when her father tucked her into bed. Her parents discovered she was gone when they went to wake her up the next morning. A massive search for Danielle ensued, with thousands of volunteers scouring local canyons and deserts.
In Danielle's neighborhood, police conducted a house-to-house search. Westerfield was gone that weekend and his home was one of the last searched. He lived two doors from the van Dams.
When Westerfield returned home Feb. 4 he "readily spoke with detectives, and signed consent forms allowing the officers to search his house, his SUV, and his motor home parked some miles away," according to court papers.
He also consented to search dogs going through his home, the papers state.
One of the investigator's reports says a search dog named Hopi became agitated in the garage and was alerted to something in the attic or ventilation system while searching Westerfield's second floor. Detectives then checked the attic.
While initial searches of Westerfield's property failed to lead police to Danielle, the twice-divorced father of two was quickly becoming the focus of the investigation and was questioned several times by police.
Two days after Danielle disappeared, Westerfield denied being involved in her disappearance, but a police interrogation specialist was "convinced he was deceptive when he stated he was not in any way responsible for Danielle's disappearance," court papers state.
Detectives also suspected Westerfield might have used his motor home to move Danielle.
Her nude and decomposing body, still wearing the plastic necklace seen in her missing posters, was found under an oak tree in a rural area east of El Cajon nearly four weeks after she disappeared.
No cause of death has been released.
In his motion last week, defense attorney Boyce asked for information about any complaints of misconduct. He said detectives ignored Westerfield's repeated requests for an attorney and detained Westerfield against his will.
Boyce also attacked the credibility of some police investigators, saying they "falsified and misrepresented facts of the case and the circumstances of Westerfield's detention and questioning."
Private attorneys said Westerfield's defense team is laying the groundwork to suppress evidence at the heart of the prosecution's case.
The district attorney's office is not objecting to a review of the two police detectives who spent 14 hours with Westerfield on Feb. 5. During that time, Westerfield sat in the front seat of an unmarked car as he and the two detectives retraced his 600-mile journey the weekend Danielle disappeared, court papers state.
Later, the two detectives put Westerfield up in a Mission Valley motel because his home was still being searched.
One of the issues to be resolved is whether Westerfield was in police custody during any of the questioning sessions. Being in custody is different from being under arrest. The standard is whether a reasonable person would feel free to leave. If a person is in custody, all questioning is supposed to stop when a person asks for an attorney.
A hearing on whether a judge will review some, all or none of the investigators' files and provide any relevant information to the defense is set for Thursday. Earlier this week, Mudd ruled all future motions would be filed under seal until a series of pretrial hearings are held in early May. He also banned all live television and radio coverage of the hearings.
Contact staff writer Kimberly Epler at (760) 739-6644 or kepler@nctimes.com.
4/12/02
Paul Redden, who conducted the interview, was "convinced the defendant was deceptive when he stated he was not in any way responsible for Danielle's disappearance," according to court documents filed Thursday by prosecutors.
It was unclear whether a polygraph test was actually administered because many of the key details in the documents have been blacked out.
David Westerfield, 50, who lives near the van Dam family, has pleaded innocent to kidnapping, murder and child-pornography charges. His trial is scheduled for May 17.
Court documents show that Westerfield signed a consent form before he was interviewed and the conversation was recorded. Within hours of the interview, police obtained a warrant to search Westerfield's home more thoroughly than they had in a prior visit.
Police have said that DNA evidence links Westerfield to the crime, but have not publicly confirmed that he underwent a lie-detector test. Those tests are not admissible in court, but police often use them to pressure or rule out suspects.
Perhaps another reason they rushed this case to PH & to trial, was so that they could get deep enough into the case that the court wouldn't make him use the PD's office instead. Without Feldman rushing this case to trial, this case would really still have been in the very preliminary stages, and Feldman COULD have been replaced. And you know Feldman considered finances early on, as you showed us when you posted the info about the house being deeded over at a very early stage. This Feldman is certainly sharp, and he's getting plenty of help from the court system. I hope there is a public outcry about all this secrecy. Maybe a sharp reporter could do an in-depth financial investigation.
It isn't like DW didn't use all his assets, if he did to defend himself against charges which MAY not be true, and we have to assume "innocent untill proven guilty".
Oh sure, let him have some Rookie Public Defender, who doesn't really know his ass from a hole in the ground, that should make the van Dam fans happy. It'll be a conviction for sure.
But isn't this a great country, where the van Dams can receive the best of the best, for FREE, dip into "the cookie jar", and rock and roll as usual?
Westerfield paid some big taxes in in life, I'm positive, and he should be entitled to a good Defense, not by someone who works for the indigent, not by someone the Prosecution can intimidate.
I'm off to the beautiful Ozarks for some R$R...and that crisp mountain air. Be back tomorrow.
sw
John Doe = David Westerfield???
JOHN DOE, Petitioner, v.THE SUPERIOR COURT OF SAN DIEGO COUNTY, Respondent.___________________________________ D039797 (San Diego County Super. Ct. No. XXXXX)
Proceedings in mandate after superior court denied motion to appoint former counsel. Peter C. Deddeh, Judge. Petition granted.
On March 5, 2002, the superior court determined that John Doe was indigent and entitled to ancillary services for his defense provided by the county. Thereafter, Doe requested the appointment of his then retained attorneys pursuant to Penal Code section 987.2. Superior court denied the request.
Doe filed this petition contesting the lower court's refusal to appoint former counsel. He labeled the petition and accompanying exhibits "sealed and confidential." Although he failed to file a motion to seal with either this court or the court below, Doe includes within the argument portion of his points and authorities a request that we seal the petition and exhibits based on, among other facts, that the pleadings below were filed under seal, the hearings below were held in camera and the majority of the exhibits to his writ petition were part of the record below. We treat Doe's request as a motion to seal under rule 12.5 of the California Rules of Court and grant the motion based on our finding that an overriding interest overcomes the right of public access and supports sealing; there is a substantial probability the overriding interest will be prejudiced if the record is not sealed; the sealing is narrowly tailored; and no less restrictive means exist to achieve the overriding interest. (See NBC Subsidiary (KNBC-TV) Inc. v. Superior Court (1999) 20 Cal.4th 1178, 1218; Champion v. Superior Court (1988) 201 Cal.App.3d 777, 785-790.)
We requested a response from superior court but have received none.
We have thoroughly reviewed the petition, the exhibits and the transcripts of the in camera hearings. There is no dispute that Doe is indigent and entitled to the appointment of an attorney at public expense under section 987.2. The law is also well-settled that when, as here, the defendant expresses a timely preference for representation by former counsel and that preference is supported by objective considerations, absent "countervailing considerations of comparable weight, it is an abuse of sound judicial discretion to deny the defendant's request to appoint the counsel of his preference." (Harris v. Superior Court (1977) 19 Cal.3d 786, 799.) When a preference based on "trust and confidence developed over a substantial period of time" is added to the equation, only one conclusion is possible - that the court appoint former counsel. (Ibid.) Because the factors set forth in Harris were met here, the court erred.
Given the temporal urgency of the action and the fact that Doe's entitlement to relief is clear, a peremptory writ in the first instance is proper. (Code of Civ. Proc., § 1088; Alexander v. Superior Court (1993) 5 Cal.4th 1218; Ng v. Superior Court (1992) 4 Cal.4th 29, 35.)
Let a writ issue directing the superior court to vacate its rulings of March 27 and 28 and enter an order appointing former counsel to represent petitioner. The original petition, exhibits and all other filings in this case shall remain under seal. This opinion is made final immediately as to this court. (Rule 24(d).)
HALLER, J.WE CONCUR:
HUFFMAN, Acting P. J.
McDONALD, J.
FresnoDA
As for DW claiming to be "rich" to meet women..... well, he isn't the first, last or only man to have made that claim! LOL
If he is acquitted, he will no doubt avail himself of the civil suit lottery at the expense of SD taxpayers. With the added opportunity of book and movie deals as the "wrongfully accused".
He is not nearly so poorly off as Danielle, dead and eaten by animals.
Somebody will end up with a book deal out of all of this. Unless something drastic comes up, Bren and DvD will end up with it.
I missed that...point me in the direction of that article or just tell me about it..
Some of our FR swingers need to realize that most folks are put off by their pimping their wives and their general hedonism. There is a "social cost " and possibly a business one
There will probably be 2, and possibley 3 movie deals signed. The van dam version and a westerfield version, and possibly a barbara barracuda version. Even if none of them are ever written or produced, options get bought and sold, just to control the possiblility and prevent others from purchasing story rights.
The entreprenurial spirit knows no bounds.
And I'm not a DW sympathizer. I want some real good explanations for the blood/dna and fingerprints in the MH. I don't believe for a minute an expensive toy like that was left unlocked and kids were allowed to play in it.
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