GAME OVER
California Supreme Court Opinion has been published: "Judgment affirmed," unanimously. Case number S112691
appellatecases.courtinfo.ca.gov/search/case/mainCaseScreen.cfm?dist=0&doc_id=1844370&doc_no=S112691&request_token=NiIwLSIkXkg%2BWzBJSCNdUEhIIDw0UDxfIiI%2BXzNTICAgCg%3D%3D&bck=yes
PDF download is available from that page (150 pages). Read all the details here. What more can be said?
appellatecases.courtinfo.ca.gov/search/case/mainCaseScreen.cfm?dist=0&doc_id=1844370&doc_no=S112691&request_token=NiIwLSIkXkg%2BWzBJSCNdUEhIIDw0UDxfIiI%2BXzNTICAgCg%3D%3D&bck=yes
PDF download is available from that page (150 pages). Read all the details here. What more can be said?
ORAL ARGUMENT SCHEDULED - FINALLY!
WEDNESDAY, NOVEMBER 7, 2018 - 10:00 A.M.
SACRAMENTO, CALIFORNIA
See CA Supreme Court page for details:
www.courts.ca.gov/35333.htm
Click on Video link. CA v. Westerfield is the second case of the morning session.
The elements of Kidnapping in California Penal Code 207 are: the taking and the transport of a victim.
207. (a) Every person who forcibly, or by any other means of instilling fear, steals or takes ... any person
in this state, and carries the person .... into another part of the same county, is guilty of kidnapping.
(The original text was slightly different in 2002; above is the 2013 version of the law).
Westerfield's story has a beginning: He didn't take her from her home. There is no evidence of that.
His story has an ending: He did not carry her, dead or alive, to the Dehesa crime scene where she was found. There is no evidence for that. And there is convincing scientific evidence against it.
The victim does not appear at the beginning of the bridge. She is not at the end of the bridge. So how could she be found in the middle of the bridge? There is "something wrong" with the evidence!
There was no kidnapping in this case. The crime charged never happened. ...... Read more.
207. (a) Every person who forcibly, or by any other means of instilling fear, steals or takes ... any person
in this state, and carries the person .... into another part of the same county, is guilty of kidnapping.
(The original text was slightly different in 2002; above is the 2013 version of the law).
Westerfield's story has a beginning: He didn't take her from her home. There is no evidence of that.
His story has an ending: He did not carry her, dead or alive, to the Dehesa crime scene where she was found. There is no evidence for that. And there is convincing scientific evidence against it.
The victim does not appear at the beginning of the bridge. She is not at the end of the bridge. So how could she be found in the middle of the bridge? There is "something wrong" with the evidence!
There was no kidnapping in this case. The crime charged never happened. ...... Read more.
Prior updates, 2012 to 2016
Update: RESPONDENT'S BRIEF FILED BY STATE AG, OCTOBER 2012
Update: Extension of time granted 2/20/13 for Appellant's Response (due June 2013)
Update: A new wrinkle! Appellant's Supplemental Opening Brief filed 2/26/2013
Respondent's Supplemental Brief filed March 22, 2013, in answer to the above.
Update May 14, 2013 - San Diego Channel 8 News report on status of the Appeal and its documents
Update: May 14, 2013 - Appellant's Final Response Brief filed May 14.
Oops! Yet another update: Dec. 2015 - Feb. 2016
Read more...
David Westerfield Appeal Brief Filed, December 28, 2011
The Supreme Court of the State of California (see below).
After nine years of alleged "living" on Death Row at San Quentin prison, David Alan Westerfield filed his Appellant's Opening Brief on December 28, 2011, with the California Supreme Court. The named Respondent, the California Attorney General's office, has until October, 2012 to file its response.
The spotlight is now on any courtroom actions and decisions of the judge which affected the fairness of the trial and possibly its outcome. The focus is no longer on trying factual matters - that was the jury's job.
Especially at issue now are: the admissibility (or not) of key evidence; the composition of the jury and their not being sequestered; effects of inclusion of the pornography charge and related evidence; the ongoing problem of the death penalty in California; and multiple constitutional issues.
San Diego's Steve Fiorina at 10News.com filed this informative report, covering the past and future of Westerfield's appeal.
Unlike the "tsunami" of media sensationalism surrounding the 2002 criminal trial, news reports of the appeal after January 3, 2012, were muted and minimal, with the usual interviewees and pundits.
Various media reports stated that the new document questions "witnesses and testimony." Another advanced the notion of ineffective counsel. Neither of these areas is the primary focus of this appellate Brief. It is instead: judicial error.
See: Blog: Appellant's Opening Brief for actual issues addressed.
Electronic copies of Supreme Court briefs are available through the San Diego County Public Law Library.
The spotlight is now on any courtroom actions and decisions of the judge which affected the fairness of the trial and possibly its outcome. The focus is no longer on trying factual matters - that was the jury's job.
Especially at issue now are: the admissibility (or not) of key evidence; the composition of the jury and their not being sequestered; effects of inclusion of the pornography charge and related evidence; the ongoing problem of the death penalty in California; and multiple constitutional issues.
San Diego's Steve Fiorina at 10News.com filed this informative report, covering the past and future of Westerfield's appeal.
Unlike the "tsunami" of media sensationalism surrounding the 2002 criminal trial, news reports of the appeal after January 3, 2012, were muted and minimal, with the usual interviewees and pundits.
Various media reports stated that the new document questions "witnesses and testimony." Another advanced the notion of ineffective counsel. Neither of these areas is the primary focus of this appellate Brief. It is instead: judicial error.
See: Blog: Appellant's Opening Brief for actual issues addressed.
Electronic copies of Supreme Court briefs are available through the San Diego County Public Law Library.
Pictured above, left to right: Associate Justice Carol A. Corrigan, Associate Justice Joyce L. Kennard, Associate Justice Kathryn M. Werdegar, Chief Justice Tani Cantil-Sakauye, Associate Justice Ming W. Chin, Associate Justice Marvin R. Baxter, and Associate Justice Goodwin Liu.
New Challenge to California Death Penalty
[Posted 3/01/2012] According to a UT (San Diego Union-Tribune) article today, the death penalty is once again being seriously challenged in California. A new ballot initiative is being readied for November voters in California. Voters will be asking to repeal capital punishment and replace it with Life without the possibility of parole.
Link: Debate over death penalty resurfaces in California
The above is a nice in-depth article by Mike Gardner, not your usual newspaper headline with sound bite. Gardner cites an article by former California Chief Justice Ronald George: "Thoughtful individuals on both sides of the death penalty debate should be able to agree on one thing: The existing system... is dysfunctional and needs reform." Read more...
Update: 11/07/2012: Link: Death penalty repeal in California was rejected by California voters
Link: Debate over death penalty resurfaces in California
The above is a nice in-depth article by Mike Gardner, not your usual newspaper headline with sound bite. Gardner cites an article by former California Chief Justice Ronald George: "Thoughtful individuals on both sides of the death penalty debate should be able to agree on one thing: The existing system... is dysfunctional and needs reform." Read more...
Update: 11/07/2012: Link: Death penalty repeal in California was rejected by California voters
Jury of One's
THE WESTERFIELD VERDICT: WHAT WENT WRONG?
David Westerfield, 2002
"Shadow Jury" Acts as Control Group
(originally published 8/26/2002; edited Feb. 2013)
The court of public opinion is comprised of thousands of people who, thanks to modern media, can now view gavel-to-gavel coverage of a public criminal trial. They can view and consider the evidence just as a juror would. And unlike jurors, they can replay tapes of the trial or read transcripts to confirm what they observed and to pose reasoned arguments to others on the subject.
No more quick headlines, sound bites or video clips for us: we represent a knowledgeable "Shadow Jury." Thousands of those who viewed the Westerfield trial concluded that the DDAs' presentation of evidence lacked the rigorous proof necessary to support multiple felony charges against the defendant, David Alan Westerfield.
(originally published 8/26/2002; edited Feb. 2013)
The court of public opinion is comprised of thousands of people who, thanks to modern media, can now view gavel-to-gavel coverage of a public criminal trial. They can view and consider the evidence just as a juror would. And unlike jurors, they can replay tapes of the trial or read transcripts to confirm what they observed and to pose reasoned arguments to others on the subject.
No more quick headlines, sound bites or video clips for us: we represent a knowledgeable "Shadow Jury." Thousands of those who viewed the Westerfield trial concluded that the DDAs' presentation of evidence lacked the rigorous proof necessary to support multiple felony charges against the defendant, David Alan Westerfield.
There was a remarkable lack of any evidence he had ever been in the victim's home, which was necessary to prove one primary element of any alleged kidnapping.
The so-called "fingerprint" was the reconstituted phalange from a month-old corpse - rehydrated, cut off, rehydrated again, flattened, stretched then photo-shopped to "fit" a latent print. It is highly unlikely that such a durable fingerprint came from a 7 year old child, whose fingerprints fade within hours, if produced at all. That print was lifted TWICE, according to testimony. [edited]
The so-called "fingerprint" was the reconstituted phalange from a month-old corpse - rehydrated, cut off, rehydrated again, flattened, stretched then photo-shopped to "fit" a latent print. It is highly unlikely that such a durable fingerprint came from a 7 year old child, whose fingerprints fade within hours, if produced at all. That print was lifted TWICE, according to testimony. [edited]
Trace evidence found in his own home and RV was explained away on the basis of innocent prior contact, not on the sinister
allegations of a crime. Undisputed proof of prior innocent contact was presented. All parties agreed that the victim, her mother and brother had spent time in Defendant's home only a day or two before the child's disappearance. The children had explored the home and pool area while the mother sold Girl Scout cookies and chatted with the Defendant. Transference of trace evidence from the home reasonably occurred via laundered items placed in the RV.
Unlike other cases of abduction by a total stranger, these instances of prior contact, especially with laundry items which were typically sorted on the living room floor, explained the presence of trace evidence (by Locard transfer) onto the Defendant's possessions. There was also good evidence that Defendant's motor home, now kept at a remote location, was often unlocked and accessible to unsupervised children when it was in the Sabre Srpings neighborhood.
The Defense team also presented strong scientific evidence from three forensic entomologists that it was impossible for the Defendant to have placed the child's body where it was found at the time indicated by insect oviposition studies. We recall that County Medical Examiner, Dr. Brian Blackbourne, had concluded the manner of death was Homicide, "inferred from the
circumstances." The person who placed the body was the person who did the crime. That person was not David Westerfield. There is no evidence whatsoever that he was at the Dehesa recovery site.
READ MORE...
1. The Westerfield Jury was shown a graphic and disturbing pornographic videotape of what appeared to be an actual crime in progress. It was gut-wrenching and horrifyingly realistic. ....
2. We note from the jury's requests for materials that they apparently considered the charges in 3-2-1 order...
3. The minority members of this jury were clearly pressured by every means to submit to the will of the majority who voted Guilty.....
4. We note that this jury was not sequestered. The practice was criticized by pundits across the nation as questionable, even astonishing -- a death penalty jury totally without protection from external intimidation from peers and strangers alike! ....
We feel there was no good reason for the Judge in this case to leave a jury in a high profile, capital case without protection from a heavily biased public and from potential threats of reprisal during this volatile deliberation period, at minimum. His attention was focused on their "self-policing" in regard to "discussing" the case. In our opinion his view was myopic. READ MORE...
--------------------------------------------------------------
What Can Be Done to Right This Injustice?
There is no appeal from "jury error." We have respect for this hard-working jury. Many of us in the court of public opinion have served on juries before and appreciate the long hours spent in court, the careful deliberation process, and the seriousness with which all jurors are known to approach their awesome task. We will be the last to say they were either stupid, or biased from the outset. This death-qualified jury spent over 35 hours in deliberations and we know they did not take their responsibilities lightly or frivolously. Their decision was final and appeared, at least to them, to be the correct one.
But obviously something went very wrong here. The jurors were clearly exposed to undisguised emotional appeals and propaganda tricks. They were unnecessarily exposed to improper social pressures and personal experiences.
There are certain eventualities that may provide a corrective to this injustice, given sufficient time.
1. Evidence of juror improprieties may emerge when jurors are debriefed - when they are free to discuss their thoughts with the public.
2. New evidence may arise at any time regarding the case, especially in regard to persistent suggestions of "third party" involvement or responsibility in the crime.
3. In a California death penalty case an appeal is automatically filed. There appear to be numerous grounds for appeal in this case.
a. The jury pool indicated at voir dire that they had already been exposed to considerable information and discussion, biased media coverage and public opinion against Westerfield in the 4-month period preceding trial. Claims by jurors that they were "impartial" may have been exaggerated.
b. The jury was never sequestered and members spent at least one day per week at their regular workplace, exposed to social pressures from colleagues and supervisors, as well as that from family members. In addition, there were numerous blatant and biased media presentations to which they may have been inadvertently exposed, along with specific opinions regarding another alleged abduction in a nearby county, connected with strong public opinion against a jury who had released a suspect in that case.
c. The jury was not sequestered during the critical phase of deliberation, during which public opinion against Westerfield was at its peak. Jurors had to run a gauntlet of media when exiting the courthouse. A radio station taunting holdout jurors was camped on the sidewalk in front of the building. In addition, jurors had expressed reluctance to return to their workplaces on Fridays, but remained exposed to social pressure at home among those who had full media exposure and bias toward a Guilty vote. Jurors complained that media members were staring at them during public breaks.
d. The parents of the victim were observed "mad-dogging" the Defendant at various times inside the courtroom. The victim's father was banned from the courtroom and nearby hallways for a period of time, for intimidating acts toward the Defendant.
e. Jurors were expressly frightened by attempts by strangers to identify them by taking down license places. The court did not order the protection of sequestration at any time.
f. Perhaps more importantly than all of the above, however, was the introduction of the grossly graphic and revolting pornography which clearly influenced the minds of jurors and created an undeniable and permanent bias against the Defendant, who was accused of viewing and/or enjoying such violent display of a criminal attack against a small child. Jurors were clearly upset by the shocking presentation, with some in tears.
g. Further, despite requests by defense to sever the child pornography possession charge for separate consideration, the Court allowed this charge to remain before this same jury. From this arose the Court's permission to play the tape.
Attorneys experienced in appellate matters will certainly find numerous grounds for appeal and perhaps even re-trial over this decision by a jury that was psychologically manipulated and irrevocably seriously prejudiced by revolting graphic displays by the Prosecution, and unduly pressured by their peers and a hostile public as the result of the failure to sequester them.
We of the Shadow Jury await further developments. The Westerfield case is certainly not over.
The above essay was originally posted on Aug. 26, 2002, on a prior web site. c. 2002, 2012, 2013 by Kayle Brooks
allegations of a crime. Undisputed proof of prior innocent contact was presented. All parties agreed that the victim, her mother and brother had spent time in Defendant's home only a day or two before the child's disappearance. The children had explored the home and pool area while the mother sold Girl Scout cookies and chatted with the Defendant. Transference of trace evidence from the home reasonably occurred via laundered items placed in the RV.
Unlike other cases of abduction by a total stranger, these instances of prior contact, especially with laundry items which were typically sorted on the living room floor, explained the presence of trace evidence (by Locard transfer) onto the Defendant's possessions. There was also good evidence that Defendant's motor home, now kept at a remote location, was often unlocked and accessible to unsupervised children when it was in the Sabre Srpings neighborhood.
The Defense team also presented strong scientific evidence from three forensic entomologists that it was impossible for the Defendant to have placed the child's body where it was found at the time indicated by insect oviposition studies. We recall that County Medical Examiner, Dr. Brian Blackbourne, had concluded the manner of death was Homicide, "inferred from the
circumstances." The person who placed the body was the person who did the crime. That person was not David Westerfield. There is no evidence whatsoever that he was at the Dehesa recovery site.
READ MORE...
1. The Westerfield Jury was shown a graphic and disturbing pornographic videotape of what appeared to be an actual crime in progress. It was gut-wrenching and horrifyingly realistic. ....
2. We note from the jury's requests for materials that they apparently considered the charges in 3-2-1 order...
3. The minority members of this jury were clearly pressured by every means to submit to the will of the majority who voted Guilty.....
4. We note that this jury was not sequestered. The practice was criticized by pundits across the nation as questionable, even astonishing -- a death penalty jury totally without protection from external intimidation from peers and strangers alike! ....
We feel there was no good reason for the Judge in this case to leave a jury in a high profile, capital case without protection from a heavily biased public and from potential threats of reprisal during this volatile deliberation period, at minimum. His attention was focused on their "self-policing" in regard to "discussing" the case. In our opinion his view was myopic. READ MORE...
--------------------------------------------------------------
What Can Be Done to Right This Injustice?
There is no appeal from "jury error." We have respect for this hard-working jury. Many of us in the court of public opinion have served on juries before and appreciate the long hours spent in court, the careful deliberation process, and the seriousness with which all jurors are known to approach their awesome task. We will be the last to say they were either stupid, or biased from the outset. This death-qualified jury spent over 35 hours in deliberations and we know they did not take their responsibilities lightly or frivolously. Their decision was final and appeared, at least to them, to be the correct one.
But obviously something went very wrong here. The jurors were clearly exposed to undisguised emotional appeals and propaganda tricks. They were unnecessarily exposed to improper social pressures and personal experiences.
There are certain eventualities that may provide a corrective to this injustice, given sufficient time.
1. Evidence of juror improprieties may emerge when jurors are debriefed - when they are free to discuss their thoughts with the public.
2. New evidence may arise at any time regarding the case, especially in regard to persistent suggestions of "third party" involvement or responsibility in the crime.
3. In a California death penalty case an appeal is automatically filed. There appear to be numerous grounds for appeal in this case.
a. The jury pool indicated at voir dire that they had already been exposed to considerable information and discussion, biased media coverage and public opinion against Westerfield in the 4-month period preceding trial. Claims by jurors that they were "impartial" may have been exaggerated.
b. The jury was never sequestered and members spent at least one day per week at their regular workplace, exposed to social pressures from colleagues and supervisors, as well as that from family members. In addition, there were numerous blatant and biased media presentations to which they may have been inadvertently exposed, along with specific opinions regarding another alleged abduction in a nearby county, connected with strong public opinion against a jury who had released a suspect in that case.
c. The jury was not sequestered during the critical phase of deliberation, during which public opinion against Westerfield was at its peak. Jurors had to run a gauntlet of media when exiting the courthouse. A radio station taunting holdout jurors was camped on the sidewalk in front of the building. In addition, jurors had expressed reluctance to return to their workplaces on Fridays, but remained exposed to social pressure at home among those who had full media exposure and bias toward a Guilty vote. Jurors complained that media members were staring at them during public breaks.
d. The parents of the victim were observed "mad-dogging" the Defendant at various times inside the courtroom. The victim's father was banned from the courtroom and nearby hallways for a period of time, for intimidating acts toward the Defendant.
e. Jurors were expressly frightened by attempts by strangers to identify them by taking down license places. The court did not order the protection of sequestration at any time.
f. Perhaps more importantly than all of the above, however, was the introduction of the grossly graphic and revolting pornography which clearly influenced the minds of jurors and created an undeniable and permanent bias against the Defendant, who was accused of viewing and/or enjoying such violent display of a criminal attack against a small child. Jurors were clearly upset by the shocking presentation, with some in tears.
g. Further, despite requests by defense to sever the child pornography possession charge for separate consideration, the Court allowed this charge to remain before this same jury. From this arose the Court's permission to play the tape.
Attorneys experienced in appellate matters will certainly find numerous grounds for appeal and perhaps even re-trial over this decision by a jury that was psychologically manipulated and irrevocably seriously prejudiced by revolting graphic displays by the Prosecution, and unduly pressured by their peers and a hostile public as the result of the failure to sequester them.
We of the Shadow Jury await further developments. The Westerfield case is certainly not over.
The above essay was originally posted on Aug. 26, 2002, on a prior web site. c. 2002, 2012, 2013 by Kayle Brooks
- c. 2002, 2012, 2023 by Kayle Brooks