On Westerfield's Lawyers' Conduct

Bill O'Reilly of Fox News has started a firestorm in the murder case of Danielle Van Dam in San Diego. After a three month trial, the jury found the defendant David Westerfield guilty of the kidnap and murder and recommended he be sentenced to death. Westerfield was aggressively defended by esteemed San Diego defense lawyer Steven Feldman.

O'Reilly is filing an ethics complaints against Mr. Westerfield's lawyers because of media reports that Mr. Westerfield had agreed to plead guilty and take a life sentence before Danielle's body was found. This wasn't presented to the jury because in California and elsewhere, pretrial plea bargaining can't be revealed to jury.

Mr. O'Reilly believes that if Mr. Feldman knew his client committed the murder, it was unethical of him to suggest to the jury that a stranger could have done it. Evidence was presented at trial that the Van Dam parents had allowed strangers into their home in connection with their "swinging lifestyle" (as the press referred to it.) No evidence was presented by the prosecution at trial that put Westerfield inside the Van Dam home from which the seven year old Danielle was kidnapped.

Defense lawyers are defending Westerfield's lawyers. Here is an article from the Copley News Service (we found it on Lexis.com but it is likely online somewhere.)

Defenders in eye of public storm

By Alex Roth , Copley News Service

People in San Diego and around the country reacted with outrage Tuesday to the notion that a defense lawyer who knows his client committed a horrible crime could tell a jury the client couldn't be guilty.

Their anger was incited by a report in The San Diego Union-Tribune , quoting unnamed sources, that David Westerfield's lawyers offered early in the case to have their client tell police where to find the body of 7-year-old Danielle van Dam if prosecutors would not seek the death penalty.

"David Westerfield's defense attorney knew he was guilty ... but he tried to mislead the jury anyway!" announced the Web site of "The O'Reilly Factor," the Fox News Channel national talk show. "Can anyone defend this kind of behavior?" Actually - yes, they can.

A number of criminal defense lawyers voiced strong support Tuesday for the conduct of Westerfield's defense team. It is not only ethical, these lawyers say, but obligatory to raise an aggressive defense for any client who is on trial in a criminal case.

To think otherwise, they argue, is to lack the most basic understanding of the Constitution.

"The United States of America was founded on some bedrock values," said Michael Ogul, an Alameda County public defender who has handled several capital cases. "And one of those bedrock values is that everyone, not just the innocent, has the right to a trial to see whether the government can prove its case."

The chatter about the story was furious Tuesday on television, talk radio and the Internet, most of it from people who watched Westerfield's lawyers argue at trial that their client - for a variety of scientific and other reasons - couldn't have committed the crime.

But most experienced criminal defense attorneys say their job isn't to decide whether their client committed the offense. In fact, many defense lawyers have a policy of never asking the client that question.

Their role, they say, is to make sure their client isn't convicted unless the prosecution can prove its case beyond a reasonable doubt. And it's impossible to make the prosecution meet its burden without aggressively challenging the evidence, even if the defender believes the client committed the crime.

The defense lawyers interviewed Tuesday say the system would fail if they began asking which of their clients deserved a vigorous defense and which did not.

"If you defend your client, you can't make independent determinations of whether he's guilty or not guilty," San Diego defense lawyer Marc Carlos said. "Because one of these days we could be wrong."

This obligation is especially important in a death-penalty case, these lawyers argue.

"If they're trying to kill the guy, then they better be able to prove their case in court," Ogul said. "What's the guy supposed to do? Volunteer to be executed?"


Deputy District Attorney Jeff Dusek, the lead prosecutor in the Westerfield case, refused comment on the newspaper story, saying plea negotiations in all criminal cases are confidential.

Westerfield's lead attorney, Steven Feldman, hasn't talked to the media beyond making a short statement shortly after the jury recommended the death penalty Monday. He couldn't be reached late Tuesday.

Feldman is well-respected in the local legal community and has frequently won praise from prosecutors for his dedication to his clients and his skill in defending them.

The newspaper's sources said prosecutors were on the verge of accepting the offer of Westerfield's defense team - a life-without-parole sentence in exchange for information about where to find the body - when volunteers discovered Danielle's remains off Dehesa Road east of El Cajon on Feb. 27.

Prosecutors no longer had any incentive to make a deal and the potential plea bargain collapsed, the sources said. Such negotiations cannot be used as evidence in a trial.

Legal experts said Westerfield's defense team was acting ethically on behalf of their client in an attempt to spare him the death penalty a jury eventually recommended.

There are ethical limits to what a criminal defense lawyer can do on behalf of a client. California State Bar guidelines forbid lawyers from knowingly letting a client lie on the witness stand.

If the client insists on testifying anyway, the defense lawyer has an obligation to tell the judge in private that the client will be testifying over the objection of his counsel, according to San Diego defense attorney Gerald Blank.

But preventing a client from lying on the witness stand is entirely different from telling a jury the client is not guilty of the crime, Blank said.

In the opinion of Blank and other defense attorneys, asserting that the client is not guilty is different from asserting innocence.

"Innocent" means the client didn't do it. "Not guilty" means the state doesn't have the evidence to prove the case beyond a reasonable doubt, Blank said. Jurors return guilty or not-guilty verdicts. In rare cases a judge will make a finding that a defendant is innocent.

"The entire framework of the United States and California constitutions is that no one goes to prison unless the government's got proof beyond a reasonable doubt that the person committed the crime," he said. "That's the bulwark of our freedom."


Throughout the Westerfield trial, Feldman and co-counsel Robert Boyce avoided the word "innocent." Instead, they aggressively challenged every prosecution theory, every prosecution witness, offering any number of possible alternative explanations for the evidence along the way.

Feldman told the jury that scientific testimony from bug experts would prove it was "impossible" for his client to have dumped Danielle's body. He told the jury no trace of Westerfield was found anywhere in the van Dams' house.

"We have doubts," Feldman said in his opening statements of the trial. "We have doubts as to the cause of death. We have doubts as to the identity of Danielle van Dam's killer. We have doubts as to who left her where she resided, where she remained. And we have doubts as to who took her."

Three months later, the jury returned a verdict reflecting its belief that those doubts were not reasonable.

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