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.
Maybe they wanted to say "We've found her body, would you like to confess and tell us about it."
Maybe they hoped he would break.
I think Feldman is working this issue pretty hard, considering the officers never actually spoke to his client.
He wants the gag order pretty bad, which means it ain't good for his client. If the affidavits (sp?)and other "evidence" are so full of exculpatory information as well as 3rd party culpability as he has proclaimed, why the gag order?
Feldman is grandstanding, IMO.
That said, the DA should help him put a lid on it. If the stuff is that explosive, let's not taint the jury pool and give Feldman another avenue of appeal after conviction.
Although desparately curious as an armchair detective, ultimately I want justice for Danielle and increased awareness of pedophiles/child porn to help protect other children.
So, Kim, you have passed judgment without SEEING the pictures, based on hear-say, rumor and inuendo?
Bad move, Kim...ROFLMAO
sw
Apparently the "actors" were not clearly under the age of 18. It seems that it was difficult to determine.
While I find all pornography disgusting, it may be that DW did not know it was child porn. If the age was hard to tell, he may not have willfully broken the law.
Furthermore, it doesn't appear that he had a thing for real young girls as far as the porn evidence indicates.
AND I don't have a problem defining "infidelity" when it comes to the van Dams.....LOL and a big little smiley face :~)
sw
BTW, Cute ya stinker. :)
sw
He may just be grandstanding and putting on a show..he's apparently known for that..he may just want to mislead the press.. I'll be back after awhile..
Look at the Sam Shepherd case and F Lee Bailey, where there was a media frenzy...most of us now believe Shepherd was innocent and a window washer was guilty..put yourself in the place of the accused and imagine how you would feel if only news against you was coming out, not exculpatory evidence or evidence of third party culpability...I am for law and order and believe those that prey (and especially assault) on children and seniors or disabled are the lowest of the low and should be delt with severely, (IMO the best reason for laws is to protect those that can't protect themselves from predators)but I also feel the right to a fair trial trumps the right of the free press...we also have constitutional protections to keep overzealous officals in line...JMHO...regards..
(careful, that was a loaded question)
sw
He wants the gag order pretty bad, which means it ain't good for his client. If the affidavits (sp?)and other "evidence" are so full of exculpatory information as well as 3rd party culpability as he has proclaimed, why the gag order?
Feldman is grandstanding, IMO.
See?! I told you this day was coming, now I AM agreeing with Val!
I begin to think that I need to look for an adults only community. Certainly I had better never let a kid into my apartment under any circumstances, lest he/she leave DNA behind.
Now of course I will be flamed as "anti-children".
If the 17,000 votes left to be counted Monday don't change things, Pfingst is likely to face former deputy DA and current Superior Court judge Bonnie Dumanis (kneejerk Freepers will overlook her qualifications and obsess over allegations? she's Lesbian). The bonus is the union's candidate lost. If somehow Dumanis isn't the run-off candidate (she has a lead of around 8000 votes right now), it'll be attorney Mike Aguirre, someone with apparently NO prosecutorial experience.
Never ask a question you don't know the answer to, right, Consular?
sw
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