Archive Document, 2002
The following document was originally written and published on a now-defunct AOL web site, on August 26, 2002.
Jury of One's THE WESTERFIELD VERDICT: WHAT WENT WRONG?
"Shadow Jury" Acts as Control Group
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.
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. There was a remarkable lack of convincing evidence of his ever being in the victim's home, or the victim being in his car, both necessary to a proof of the alleged kidnapping. Trace evidence found in his home and RV was fully explained on the basis of prior contact, not on the sinister allegations of a crime.
Documented proof of prior contact was presented. 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.
There was good evidence that Defendant's motor home, now kept at a remote location, was previously available to unsupervised neighborhood children. Further, transference of trace evidence from the home reasonably occurred via laundered items placed in the RV.
Unlike other murder/kidnap 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 on the Defendant's possessions.
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.
In addition, taped statements made by the Defendant to police were confirmed by numerous witnesses and cell phone records to be true. Although he took a circuitous weekend route in his motor home, thought by some to be unusual, other witnesses described their own RV travel experiences or encounters with the Defendant as normal ones.
As the result of all this evidence strongly favoring the Defendant's credibility, many observers following the trial nationwide concluded that Westerfield was Not Guilty of the alleged felony charges. (Guilt on the misdemeanor pornography charge was no surprise. TV viewers heard but did not see the media in question.)
Even many who felt Westerfield was "probably guilty" nevertheless believed that considerable reasonable doubt remained, and that the Prosecution had produced insufficient proof of the death-dealing allegations. As shadow jurors, these too would have voted Not Guilty, based on the substantial amount of doubt in this case.
Many critical questions remained unanswered at the conclusion of trial arguments. They remain unanswered today. Those frustrated by the serious lack of important and conclusive information during this trial remain frustrated by both the DDA's presentation and the jury's verdict. The verdict clearly did not "solve the crime" in the minds of many observers.
For all these reasons, thousands of trial observers* were shocked and stunned when we heard the verdict on August 21, 2002 - Guilty on all counts.
An online poll shows approximately 20% of those polled did not agree with the verdict. (San Diego population is approximately 1 million people.)
Thousands of citizens, locally and nationally, are left wondering how a potentially innocent fellow citizen can be dispatched to life in prison, or even death, on the basis of such flawed and unsupported allegations by our DA.
Would this be the rule of the day for any of us? We are speechless at this shocking miscarriage of justice, but feel we can do little or nothing to protest or change this state of affairs. We remain dissatisfied by the incomplete disclosure of information necessary to resolve the issues.
Why Did the Jury Come to Such a Different Conclusion?
How can two different groups look at exactly the same facts and come to such radically different conclusions? An analysis of what the jurors apparently did throws some light on this question. We note several significant differences between the Shadow Jury (acting as a control group) and the courtroom Jury:
1. The Westerfield Jury was shown a graphic and disturbing videotape of what they believed to be an actual crime in progress. It was gut-wrenching and horrifyingly realistic. The Prosecution claimed the showing was necessary to their allegation that the Defendant had child pornography in his possession.
This crime is a misdemeanor with a minor penalty. However, the horrendous display of violence, the desperate screams of a child, created such an emotional reaction in the jurors that their opinion was biased from the outset. The graphic scene became indelible for them and, consciously or not, colored their entire trial outlook.
We note that the showing of this video was NOT available to us in the "shadow jury," in essence the control group whose objectivity and reasoning was not blatantly skewed against the Defendant by exposure to the repugnant and disturbing tape.
2. We note from the jury's requests for materials that they apparently considered the charges in 3-2-1 order, reverse order. They proceeded from the lesser charge, a misdemeanor, to the moderately serious charge of kidnapping, and finally on the basis of that decision to the first degree, felony murder charge. This is somewhat unusual, as charges are normally considered from "top to bottom," from the most serious to the least serious. There is no rule that binds the jury to any order, but we can see that this reverse practice had a notable effect on the jury that was strikingly different from that in the shadow or control group outside. (The shadow/ control members were free to discuss any of the charges at length and "sequence" was not an issue, since we were under no time deadline and had no formal papers to fill out.) [some text redacted here]
The misdemeanor porn charge was dominant in the jurors' minds; they no doubt decided the #3 charge first. This would be relatively easy for all jurors since the penalty was minimal. However, any experienced salesman will recognize here a popular sales device: gaining small concessions first, and building to the larger. This is obviously how the majority jurors recommending Guilty verdict(s) were able to influence and persuade the minority with minimal resistance.
3. The minority members of this jury were clearly pressured by every means to submit to the will of the majority who voted Guilty.
From our experience in the court of public opinion, we know that the population was fairly evenly split in their informal decisions. It is reasonable to expect that at least 2-3 members of the jury would represent that same view inside the jury room and would represent a resistant minority.
We know from the deliberation time consumed that there was no instant unanimity among the jurors and that considerable persuasion and pressure was necessary to bring the minority to unanimity.
We suspect that peer pressure, not only inside the jury room but outside in the form of family members, co-workers and colleagues, was applied to the minority members in order to change their vote to Guilty. Intimidating events occurred on a daily basis for this jury, but the Judge failed to protect them from hostile outside influences.
The Judge concerned himself primarily with media influences, but the real pressure on minority jurors was obviously peer pressure to submit to the will of fellow jurors, and fear of reprisal from co-workers, work supervisors, family members, or a virulent public upon their return to post-trial life.
And submit they did, yielding not the hung jury that a great many observers predicted, but a questionably "unanimous" vote. We note that although some news media claimed ALL jurors polled answered with a "resounding yes," TV viewers noted instead that certain jurors were in tears while others answered with far less than "resounding" assent.
We hope that the minority jurors will come forward with their stories when they are free to speak and be "debriefed." It is possible that the types of pressure applied to them may represent improprieties of an illegal nature.
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!
Certain radio talk shows were especially vocal and obnoxious in their clear intent to put pressure on jurors for a Guilty verdict, while other persons were seen taking down plate numbers from jurors' vehicles. Some dismissed this as a common media practice, but jurors may have feared physical reprisals from strangers against themselves or their families.
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.
--------------------------------------------------------------
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 salesman's 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, ut 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 ere 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 a grossly graphic and revolting videotape which clearly influenced the minds of jurors and created an undeniable and permanent bias toward 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. They were irrevocably, seriously prejudiced by revolting graphic displays by the Prosecution, and unduly pressured by their peers and a hostile public, as the result of failure to sequester them.
We of the Shadow Jury await further developments. The Westerfield case is certainly not over.
**************** Written 8-26-2002. Edited and re-published 2-11-2012. Copyright 2012 Kayle Brooks *******************************************
There was good evidence that Defendant's motor home, now kept at a remote location, was previously available to unsupervised neighborhood children. Further, transference of trace evidence from the home reasonably occurred via laundered items placed in the RV.
Unlike other murder/kidnap 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 on the Defendant's possessions.
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.
In addition, taped statements made by the Defendant to police were confirmed by numerous witnesses and cell phone records to be true. Although he took a circuitous weekend route in his motor home, thought by some to be unusual, other witnesses described their own RV travel experiences or encounters with the Defendant as normal ones.
As the result of all this evidence strongly favoring the Defendant's credibility, many observers following the trial nationwide concluded that Westerfield was Not Guilty of the alleged felony charges. (Guilt on the misdemeanor pornography charge was no surprise. TV viewers heard but did not see the media in question.)
Even many who felt Westerfield was "probably guilty" nevertheless believed that considerable reasonable doubt remained, and that the Prosecution had produced insufficient proof of the death-dealing allegations. As shadow jurors, these too would have voted Not Guilty, based on the substantial amount of doubt in this case.
Many critical questions remained unanswered at the conclusion of trial arguments. They remain unanswered today. Those frustrated by the serious lack of important and conclusive information during this trial remain frustrated by both the DDA's presentation and the jury's verdict. The verdict clearly did not "solve the crime" in the minds of many observers.
For all these reasons, thousands of trial observers* were shocked and stunned when we heard the verdict on August 21, 2002 - Guilty on all counts.
An online poll shows approximately 20% of those polled did not agree with the verdict. (San Diego population is approximately 1 million people.)
Thousands of citizens, locally and nationally, are left wondering how a potentially innocent fellow citizen can be dispatched to life in prison, or even death, on the basis of such flawed and unsupported allegations by our DA.
Would this be the rule of the day for any of us? We are speechless at this shocking miscarriage of justice, but feel we can do little or nothing to protest or change this state of affairs. We remain dissatisfied by the incomplete disclosure of information necessary to resolve the issues.
Why Did the Jury Come to Such a Different Conclusion?
How can two different groups look at exactly the same facts and come to such radically different conclusions? An analysis of what the jurors apparently did throws some light on this question. We note several significant differences between the Shadow Jury (acting as a control group) and the courtroom Jury:
1. The Westerfield Jury was shown a graphic and disturbing videotape of what they believed to be an actual crime in progress. It was gut-wrenching and horrifyingly realistic. The Prosecution claimed the showing was necessary to their allegation that the Defendant had child pornography in his possession.
This crime is a misdemeanor with a minor penalty. However, the horrendous display of violence, the desperate screams of a child, created such an emotional reaction in the jurors that their opinion was biased from the outset. The graphic scene became indelible for them and, consciously or not, colored their entire trial outlook.
We note that the showing of this video was NOT available to us in the "shadow jury," in essence the control group whose objectivity and reasoning was not blatantly skewed against the Defendant by exposure to the repugnant and disturbing tape.
2. We note from the jury's requests for materials that they apparently considered the charges in 3-2-1 order, reverse order. They proceeded from the lesser charge, a misdemeanor, to the moderately serious charge of kidnapping, and finally on the basis of that decision to the first degree, felony murder charge. This is somewhat unusual, as charges are normally considered from "top to bottom," from the most serious to the least serious. There is no rule that binds the jury to any order, but we can see that this reverse practice had a notable effect on the jury that was strikingly different from that in the shadow or control group outside. (The shadow/ control members were free to discuss any of the charges at length and "sequence" was not an issue, since we were under no time deadline and had no formal papers to fill out.) [some text redacted here]
The misdemeanor porn charge was dominant in the jurors' minds; they no doubt decided the #3 charge first. This would be relatively easy for all jurors since the penalty was minimal. However, any experienced salesman will recognize here a popular sales device: gaining small concessions first, and building to the larger. This is obviously how the majority jurors recommending Guilty verdict(s) were able to influence and persuade the minority with minimal resistance.
3. The minority members of this jury were clearly pressured by every means to submit to the will of the majority who voted Guilty.
From our experience in the court of public opinion, we know that the population was fairly evenly split in their informal decisions. It is reasonable to expect that at least 2-3 members of the jury would represent that same view inside the jury room and would represent a resistant minority.
We know from the deliberation time consumed that there was no instant unanimity among the jurors and that considerable persuasion and pressure was necessary to bring the minority to unanimity.
We suspect that peer pressure, not only inside the jury room but outside in the form of family members, co-workers and colleagues, was applied to the minority members in order to change their vote to Guilty. Intimidating events occurred on a daily basis for this jury, but the Judge failed to protect them from hostile outside influences.
The Judge concerned himself primarily with media influences, but the real pressure on minority jurors was obviously peer pressure to submit to the will of fellow jurors, and fear of reprisal from co-workers, work supervisors, family members, or a virulent public upon their return to post-trial life.
And submit they did, yielding not the hung jury that a great many observers predicted, but a questionably "unanimous" vote. We note that although some news media claimed ALL jurors polled answered with a "resounding yes," TV viewers noted instead that certain jurors were in tears while others answered with far less than "resounding" assent.
We hope that the minority jurors will come forward with their stories when they are free to speak and be "debriefed." It is possible that the types of pressure applied to them may represent improprieties of an illegal nature.
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!
Certain radio talk shows were especially vocal and obnoxious in their clear intent to put pressure on jurors for a Guilty verdict, while other persons were seen taking down plate numbers from jurors' vehicles. Some dismissed this as a common media practice, but jurors may have feared physical reprisals from strangers against themselves or their families.
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.
--------------------------------------------------------------
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 salesman's 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, ut 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 ere 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 a grossly graphic and revolting videotape which clearly influenced the minds of jurors and created an undeniable and permanent bias toward 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. They were irrevocably, seriously prejudiced by revolting graphic displays by the Prosecution, and unduly pressured by their peers and a hostile public, as the result of failure to sequester them.
We of the Shadow Jury await further developments. The Westerfield case is certainly not over.
**************** Written 8-26-2002. Edited and re-published 2-11-2012. Copyright 2012 Kayle Brooks *******************************************