Plea deal 'minutes away' when body found

San Diego Union Tribune ^ | September 17, 2002 | J. Harry Jones

[Bug]

Plea deal 'minutes away' when body found

By J. Harry Jones
STAFF WRITER

September 17, 2002

Minutes before Danielle van Dam's remains were found Feb. 27, David Westerfield's lawyers were brokering a deal with prosecutors:

He would tell police where he dumped the 7-year-old girl's body; they would not seek the death penalty.

Law enforcement sources told The San Diego Union-Tribune yesterday defense lawyers Steven Feldman and Robert Boyce were negotiating for a life sentence for the 50-year-old design engineer, a neighbor of the van Dams in Sabre Springs.

The deal they were discussing would have allowed Westerfield to plead guilty to murder and be sentenced to life in prison without the possibility of parole, said the officials, who spoke on condition they not be identified.

Prosecutors were seriously considering the bargain when Danielle's body was discovered off Dehesa Road that afternoon, nearly four weeks after she disappeared from her bedroom.

"The deal was just minutes away," one of the sources said.

It was aborted, but details were confirmed yesterday soon after a San Diego Superior Court jury recommended the death penalty for Westerfield.

The officials outlined this chronology:

Feldman and Boyce were at the downtown San Diego jail discussing the final arrangements with Westerfield when volunteer searchers found Danielle's remains beneath trees along Dehesa Road east of El Cajon.

When the lawyers left to meet with prosecutors, they noticed members of the news media gathering in the street and asked what was happening.

After being told a body had been found, they went directly to the nearby Hall of Justice and met with prosecutors. The defense lawyers were handed a copy of a Thomas Guide map of the Dehesa area on which a circle had been drawn indicating the location of the body.

Feldman and Boyce took the map back to Westerfield and later telephoned to say they no longer "had anything to discuss regarding a plea bargain."

Neither Feldman nor Boyce could be reached for comment last night.

Danielle was reported missing from her home the morning of Feb. 2, and Westerfield, who lived two doors away, quickly became the primary suspect. He was watched closely by police for weeks as authorities and volunteers searched from the Sabre Springs neighborhood to the Imperial County desert.

After DNA results linked Westerfield to the crime, he was arrested Feb. 22 and charged with kidnapping and burglary.

Three days later, even though Danielle's body had not been found, District Attorney Paul Pfingst announced murder and kidnapping charges would be filed that could carry the death penalty.

Many law enforcement officials feared Danielle's body might never be found. Then, on Feb. 27, volunteer searchers combing the Dehesa area, far from where police had focused, found Danielle's badly decomposed remains.

At that point, the official sources said yesterday, any opportunity Westerfield and his lawyers had to win a plea bargain evaporated.

---

J. Harry Jones: (619) 542-4590;

email

Copyright 2002 Union-Tribune Publishing Co.

[paul51]

How would a man innocent of the crime know where the body was?

Yep. Where has DumbAss and his stupid and offensive song lyrics been lately? Probably still grieving the verdict

[John Jamieson]

Sorry about the multiple posts. Computer couldn't decide if it sent that post or not. It's a new computer too.

[Valpal1]

Thanks Kim

Both Brenda and Damon van Dam said they were not aware that Westerfield had offered to plead guilty in February

They said they were not sure whether the offer was actually made.

"Just because it's in the paper doesn't mean it's true," Brenda van Dam said.

So we don't really know if it is true or not. Nor who approached who for it. And won't for some time (like when a book gets written).

[bvw]

Is "Ironsides" ok? (Jusr kidding .... What does Maximus O'Reilly think we should have in place of defense lawyers who defnd? Trial by immersion? Come up still breathing and you're exonerated?)

[Amore]

The case wasn't tried in Washinton. But since you persist, I will go try and find the ethical rule for Calif. for this occasion. But I note that the former option you mention is what I'm referring to. "If the client insists on taking the stand and lies, the attorney must either inform the tribunal or withdraw from the case." I'm telling you that the former would happen, and then there is a procedure that allows DW to testify.

CERTAINLY FELDY COULD MOVE TO WITHDRAW BUT I GUARANTEE JUDGE MUDD WOULD NOT HAVE LET HIM DO SO AT THAT STAGE OF THE CASE.

[connectthedots]

O'Reilly is being a twit. Everyone, including the guilty, are constitutionally entitled to counsel.

O'Reilly is an idiot. He just doesn't understand that a defense attorney's job is simply to make sure the state proves its case against the defendant. If the state does its job, and the defendant actually committed the crime charged, a guilty verdict will almost always be the result.

[Valpal1]

Excuse me, they have the dna/print/hair in the MH which the prosecution is claiming he drove her in and dumped her from.

They darn well did need to "exclude" that scenario, since there was physical evidence supporting it. They couldn't do it.

And "Probably couldn't have dumped her" is no more reasonable doubt than "Probably was her DNA" would be conclusive evidence.

It didn't sway the jury, or me, because I recognise the margin of error was simply to great to rise to reasonable doubt.

[John Jamieson]

OK

[Valpal1]

Our system accepts the fact that sometimes the guilty will be freed in order that the innocent not be convicted.

The guilty being freed is the lesser evil in the eyes of the law. And in my own as well.

One has to accept that perfect justice is not attaiable and that it is better to err on the side of the defendant, because to punish the innocent is a great injustice than letting the guilty go free.

Besides, DW was found guilty. Another great day in America, they system worked!

[cyncooper]

What names have the Westerfield supporters been called, other than "fans" or "supporters"?

Do you equate those terms with terms like "cretin", "jackal", "idiot", etc?

The fact is the two sides were not equal when it came to flame wars in the level of viciousness engaged in by one side only.

Posting that I think Westerfield is guilty is not a flame directed at anyone.

[cyncooper]

When the answer is "I don't know" ...

Do you know for a fact that was Westerfield's answer?

[John Jamieson]

So you're convienced that not only did DW do it, but he did it alone?

I'm not. The best explaination of all the evidence (and the lack of evidence in the VD house) to me, is that DW was involved, but someone else was too. If someone else was involved, DW may be an accessory, not a killer. If we consider the case closed, we may miss another perp(s) and be leaving more young girls in danger.

I won't be happy until the whole story is known.

Getting half the cancer doesn't cure you.

[Dante3]

This shows what a scum Feldman is. He knew his client was guilty yet he was trying to blame innocent people, even the son. More and more juries are just going to ignore anything defense attorney will say. Unfortunately sometimes innocent people are charged -- they are the ones who will be hurt by Feldman's unethical actions.

[connectthedots]

CERTAINLY FELDY COULD MOVE TO WITHDRAW BUT I GUARANTEE JUDGE MUDD WOULD NOT HAVE LET HIM DO SO AT THAT STAGE OF THE CASE.

There is no doubt that Mudd would have denied such a request, and I think Feldman would have made such a request if DW insisted on testifying.

All this discussion brings to mind some of the motions Feldman made concerning proposed jury instructions and also some of his remarks in closing arguments. I don't recall the specifics, but at least one of the motions could have only made sense if Feldman knew his client was guilty. I think it had something to do with asking for an alternate charge for a crime less than capital murder. In retrospect Feldman's performance during closing arguments seemed to be totally dispassionate; certainly not what one would expect from an attorney who thought his client was innocent.

I think Feldman did an excellent job during the presentation of the evidence, but in his heart did not want DW to get away with murder, assuming the UT story about the plea-bargain deal is true; and I have no reason to think it isn't.

[John Jamieson]

Every attoney is obligated to consider all offers made by the prosecution. There is "proof" of nothing here.

[RooRoobird14]

You know, I somehow missed the "Westerfield is Innocent" club here at Free Republic. (didn't spend much time on the threads). On what basis/facts were these Freepers claiming his innocence?

[Amore]

A criminal defendant has a constitutional right to testify in his defense. ( Rock v. Arkansas (1987) 483 U.S. 44 [107 S.Ct. 2704, 97 L.Ed.2d 37].) However, rules of professional conduct prohibit attorneys from participating in the presentation of perjured testimony. (Nix v. Whiteside (1986) 475 U.S. 157, 166 [106 S.Ct. 988, 994, 89 L.Ed.2d 123]; [*13] People v. Johnson (1998) 62 Cal.App.4th 608, 619.) Where a client insists on presenting false testimony of himself or of other witnesses, California courts have approved an approach under which the attorney allows the client to do so but does not participate by conducting the examination and does not argue the false version of the facts to the jury. ( People v. Guzman (1988) 45 Cal.3d 915, 944-945, disagreed with on another point in People v. Marshall (1990) 50 Cal.3d 907, 933, fn. 4, overruled on another point in People v. Price (2001) 25 Cal.4th 1046, 1069, fn. 13; People v. Gadson (1993) 19 Cal.App.4th 1700, 1712-1713; Johnson, supra, at p. 629.)

[Valpal1]

I do believe he acted alone.

He would out an accomplice in a heart beat, especially if the accomplice was the actual killer.

Please don't say he is covering for his son, who has a handful of alibi witnesses.

Not for one minute do I believe there is anyone on the face of this planet that he cares about more than himself, to cover for them in throughout this trial.

[Amore]

IF the LEO's info on this is correct, then it appears the plea negotiations had gone quite far and were very nearly a "done deal." It just hadn't been 100% finalized yet. It is not a situation where Feldy only conveyed the offer to DW, and DW said he did not know where the body was. The leak may be accurate or not, but what you are arguing is not at all what the LEO said occurred.

Where is Southflank? Doesn't he have SDPD ties? Can he weigh in on the veracity of this "leak"?

[let freedom sing]

I've often wondered if a lawyer would defend a person if he really knew the person was guilty and how the lawyer would act when doing so. If this is true then we learned how a lawyer would act. Disconnected and all over the place.

Feldman believed he could WIN-- bottom line, he won DW's house.