March 14, 2002
To guarantee an untainted trial, maybe we should all be gagged.
Not only the players in the David Westerfield case, recently rendered mute by a court order.
All of us. All the fallout victims.
Think of it as a countywide holiday from gossip, speculation and sea lawyering.
But as a result, would Westerfield receive a better brand of local jury down the line?
I sort of doubt it.
In fact, the televised preliminary hearing, which could wind up today, already has made up a multitude of minds, I suspect.
At this point, no matter how little we say – or hear – the vast majority of San Diegans think pretty much the same thing:
He killed the girl.
So go ahead. Gag everyone.
The evidence, the sine qua non of justice, is out.
The damage to the presumption of innocence is done.
Try as I might to focus on other matters at hand – filling out my NCAA brackets, for example – I can't turn away from this infernally involving case.
Today, the prosecution appears headed for its coup de grace – a coherent theory of how Westerfield entered the van Dam house, kidnapped the little girl and later dumped her body.
Of course, much has been made of Judge H. Ronald Domnitz's gag order.
More interesting, it seems to me, is whether this case, assuming it goes to trial, will remain in San Diego County.
Given what we now know, can a jury of San Diegans be impartial?
Tuesday night, I had a little hallucination, the highlights of which I'll share.
As one of 5,358 jurors called for the Westerfield trial, I was apprehensive as we filed into the jury box.
Steven Feldman, Westerfield's lead attorney, looked me over and began his selection interview:
"What is your occupation?" Feldman asked.
"Journalist," I replied.
The wiry lawyer rolled his eyes. "Have you been exposed to media coverage of the Danielle van Dam case?"
"Inundated," I admitted. "Saturated. Soaked."
"How many hours have you spent absorbing information about the case?" he asked, unable to conceal his disdain for my classless profession.
"Just guessing, I'd say somewhere between 80 and 120 hours of conscious attention."
"Have you formed an opinion as to the guilt or innocence of the defendant, David Westerfield?" he asked.
"Well, I'm willing to admit the remote possibility that Mr. Westerfield is, in fact, innocent," I said, "but given the evidence presented at the preliminary hearing, I'd have to agree with defense attorney Milton Silverman, who, while impersonating Greta Van Susteren on a local TV broadcast, said: this is 'one of the most solid cases I've seen' in 32 years of trial experience. In my view, the real issue will be the one of life or death, not guilt or innocence."
Feldman scowled. "Do you believe you could hear evidence in this trial and come to an impartial conclusion, even if the facts refuted what you believed to be true?"
"Yes, I do," I replied. "If you were to pull a Perry Mason and find the 'real' murderer, I'd be happy for Westerfield, a victim of a diabolical conspiracy. If you could undermine the integrity of the prosecution's evidence against Westerfield, I would be unhappy for the justice system, but I might vote to acquit. The odds of that, however, seem about as long as the blood on Westerfield's jacket not being Danielle's. What were they? One in 25 quadrillion?"
Feldman stomped back to his table.
"Gag this juror," he said to the judge.
Look, the second day of the preliminary hearing was devastating. More so if you watched it on TV. (Even if you sit in the courtroom, you almost never see the defendant's face. How many times, after a damning piece of evidence was presented – disgusting photographs, blood, fingerprints – did the TV camera pan to Westerfield's face?)
Prosecutors, gagged outside the courtroom, are not only proving to the judge they have a legitimate case, they're boiling the jury pool.
Maybe the Westerfield trial should be moved out of San Diego County. Tough call.
Historically, high-profile trials have gone both ways.
You be the judge.
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