What more can be said? See Home page for link to the CA Supreme Court Opinion.
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The California Supreme Court has scheduled Oral Argument in the David Alan Westerfield case for Wednesday, November 7, 2018, at 10:00 a.m. in Sacramento CA. This is the final step of the death penalty appeal in the Westerfield case, first filed in January 2003. Westerfield has been confined at San Quentin prison for over 15 years during the appeal process. http://www.courts.ca.gov/41432.htm PLEASE NOTE THAT ON THAT PAGE ARE LINKS TO COMPLETE PDF VERSIONS OF ALL THE BRIEFS FILED IN THIS CASE, FROM THE BEGINNING. A number of these are referenced in the blog posts below. All of this prior material is now public record. Updated 11/16/2018 WEBCAST VIDEO NOW AVAILABLE. Link to webcast video archives: www.courts.ca.gov/35333.htm CA v. Westerfield is the second case of the morning session 11/07/18. These briefs are in regard to "Article XIV" of a prior brief. That article involves arguments about the second degree murder instruction NOT being given to this jury by the judge. The legal phrasing involves the "lesser included offense." Westerfield was charged under "felony murder" under California law.
Here is the link for the latest filings in the California Supreme Court for this case. http://appellatecases.courtinfo.ca.gov/search/case/dockets.cfm?dist=0&doc_id=1844370&doc_no=S112691 The new (Westerfield) Appellant's Supplemental Brief was filed in December, 2015. It was answered by the Respondent (State) on January 28, 2016. Westerfield's Reply was filed Feb. 25, 2016. All this was in regard to a "modification" of argument listed as number XIV in prior briefs. There has apparently been no further Supreme Court activity since Feb. 25, 2016. The reader can explore other public information about Westerfield on the SC Docket page linked above. Westerfield's attorney from the 2002 trial has retired, according to this U-T report.
http://www.utsandiego.com/news/2013/dec/28/veteran-defense-attorney-steven-feldman-retires/ Update: May 14, 2013 - Appellant's final Response Brief was filed with the California Supreme Court on May 14. The case now awaits its Oral Argument date with the Court. Westerfield is asking for a reversal on the grounds that many judicial errors were made in his criminal trial over ten years ago, but especially the improper reliance by LE and a judge on Westerfield's polygraph results.
Update May 14, 2013 - Click here to read a recent San Diego Channel 8 News report on status of the Appeal, its documents and implications. The article is a little confusing, because it primarily discusses the earlier "supplemental" brief (filed in March) that brought up details of the polygraph issue. It does not focus on the fact that this May 2013 filing is the FINAL one in the series which leads to the Supreme Court oral arguments. NOTE: FULL TEXT (PDF) OF THE EARLIER BRIEFS FILED CAN BE OBTAINED BY CLICKING ON THE LINKS IN THE "CHANNEL 8 REPORT" ABOVE. Updates Feb. 26 and Mar. 22, 2013: Westerfield's new Supplementary Brief and the AG's response2/28/2013 New paperwork was filed on behalf of David Westerfield with the Supreme Court as of February 26, 2013. Its title is: Appellant's Supplemental Opening Brief Update April 8, 2013: Respondent's Supplemental Brief was filed March 22, 2013, in answer to the above. The subject is Appellant's Argument I, the role that polygraph results played in the procuring of the first search warrant. Was it "evidentiary" or "investigative"? Was it admissible? The following transaction has occurred in: PEOPLE v. WESTERFIELD (DAVID ALAN) Case: S112691, Supreme Court of California Date: (YYYY-MM-DD): 2012-10-09 Event Description: Respondent's brief filed Notes: (84,867 words; 267 pp.) The "Respondent" in this case is the Attorney General's office, not the Supreme Court. It holds the relative position that the district attorney did in the local trial, as "The People." The "Appellant" is David Westerfield, the person initiating the appeal (see below). Each party presents its case in writing to the CA Supreme Court. When all the Briefs are in, a Court date will be scheduled for Oral Argument on the case before the justices of the Supreme Court. The issue being argued here is whether there was judicial error on the part of the Trial judge in 2002. The Appellant's position is that the judge made errors (enumerated in the AOB, below). The State AG's position is to defend the judge and deny that errors occurred. It should be noted that the Trial judge, Hon. William Mudd, is now deceased. Here is NBC'S video version of this news, 10/13/12. They are calling it "appeal denied," as though Westerfield were appealing to the State AG, not to the Supreme Court.
NOTE: The Appellant's Reply Brief is due December 10, 2012, pursuant to California Rules of Court 8.630(c)(1)(D). Update: Request for extension filed 12/10, granted 12/13/2012. Update: Extension of time granted 2/20/13 for Appellant's Reply Brief (due June 2013) David Westerfield's interrogators made much of the fact that he said "we" while describing his solo desert trip. It seems that "we" is often used by one person. My favorite is this one: Shortly after his historic transatlantic SOLO flight in May 1927, Charles Lindbergh wrote a book entitled "WE." There was no one with him at the time. This Death Penalty Appeal "brief" is anything but brief! It comprises nearly 500 pages, some of which represents complex legal wrangling or language; but much is perfectly comprehensible to any layman. I am neither a lawyer nor a law student nor a Ph.D. candidate. I am a U.S. citizen, a voter, a San Diego resident; I have served on a felony jury. I can read; I have an online Law dictionary. Understanding this case in written form is not all that difficult if one makes the effort. [This brief is available through San Diego Law Library.org]. Contents: There are 40 unnumbered (Roman numeral) pages and 448 numbered ones. The unnumbered pages contain introductory material: the Table of Contents, the Points and Authorities (case law citations), and the Case Summaries from both Prosecution and Defense points of view. The appellate Arguments begin on page 60. Arguments are divided between Guilt Phase and Penalty phase of the 2002 trial: Guilt Phase: Fifteen Arguments These comprise the heart of the matter (in my layman's view): Six arguments on Admissibility of Evidence, especially Warrants, pornography. Six arguments on Jury instructions, especially the Kidnap charge, dog scent. Three arguments on the jury itself (2 on Selection and 1 Sequestration) Update: Appellant's Supplemental Opening Brief filed 2/26/2013 (see above) Penalty Phase section contains: Five arguments specific to the penalty phase only, Five arguments extended from the guilt phase, and Four arguments regarding the California death penalty. (See post titled "Penalty Phase;" my discussion tabled until further notice. This blog author prefers to focus on the Guilt phase arguments.) Correcting "Jury Error" There is no such thing as 'jury error' of course. A valid jury with valid input and "due process" does not make errors. The history of the jury in the USA shows immense power vested in this body of twelve, the "trier of fact," and the immutability of its decision, right or wrong. If something goes awry, as it apparently did in this case, the responsibility for error falls upon the trial judge, who must have done something wrong. Defendant Westerfield did not receive a fair trial, as guaranteed by the U.S. Constitution. He received instead "undue" process. More simply: "Garbage in, garbage out." So why blame the judge? Because the jury is often seen as a kind of truth-processing machine, jointly assembled by lawyers and the Court and then controlled by the judge on behalf of the community. The jury is (a) to be made of well-oiled basic components, (b) to hear and accept the input of proper evidence only, and (c) to evaluate and "weigh" that evidence, according to agreed-upon rules of reason and law, to produce their verdict. The judge must act as the legal shepherd of the jury, his sheep. He must not lead them into wrong pastures or beside toxic waters, or allow goats to take over leadership of the flock. If something goes awry, the judge must answer for it. Thus the appellate process (in this case) focuses on "judicial error" only - rather than on those familiar specific facts previously argued in the courtroom and/or the media. It is the judge who oversees the operation of this human machine: (a) jury selection, composition, and protection; (b) admissibility (or not) of trial evidence, testimony, and argument; and (c) jury instructions: admonishment as to what to do and how to do it, under the law. The 15 guilt phase Arguments outlined above focus on exactly these things: (1) Composition of and influences upon the jury itself - 3 arguments; (b) admissibility (or not) of the evidence - 6 arguments; (c) instruction on crime and the law, reason and inference in regard to the evidence - the "weighing" process - 6 arguments. (Jury instructions are the "minefield" of judges, according to the late Judge Wm. Mudd). All the above is now submitted to the "mountaintop" (Supreme Ct.) for its review of the issues Concluding Statement of Appellant's Opening Brief
One hears people saying about the Westerfield case that "The DNA was the proof" or, "The DNA was overwhelming." This is simply not true. No one who has examined and understood the facts of this case could say that with any enthusiasm. This is not a "DNA case" like so many one hears about. This case shows the limitations of DNA analysis. It can not answer all the questions. The "DNA" was in fact underwhelming and nearly valueless in proving the case here. It was used only for identification. It simply identified in the defendant's motor home 1 hair and 2 blood stains as belonging to Danielle. Well, that certainly sounds incriminating. But Defense did not even contest these identifications, because simple identification was insufficient here. To prove a crime occurred on Feb. 2-3-4, we need to know HOW AND WHEN the blood or trace evidence was deposited here: (1) The single DNA-identified "Danielle" hair floated in with trace evidence from many others, including the victim's mother, brothers, and the van Dam family dog. Obviously the suspect was not trying to kidnap the dog. Trace came in by simple Locard transfer, from prior innocent contact. (2) The 2 blood samples were poorly handled, not photographed as they were found. The jury never saw the blood stain on the jacket or the speck on the carpet. All they saw was holes! They never saw the primary evidence in the case. The stains were not photographed, so no spatter analysis could be done. No one could analyze HOW the blood had been deposited. DNA cannot answer questions like that. (3) The 'incriminating' DNA blood samples (IF there was no lab error) belonged only to the victim, not the perpetrator. This is rarely the case. No trace of the victim was found on his person, and no trace of him was found on the victim or in her home. This is also rarely the case. (4) The DNA did not provide direct evidence. It did not link the person Westerfield to the person of the victim, as in well-known rape cases. The evidence, as everyone knows, was on his possessions -- a jacket found at the dry cleaners and a carpet in the motor home. He did not have to be IN the jacket or IN the motor home when the blood got there. How & when did it get there? (5) The age of the blood sample(s) was unknown. Bloodstains found could have been over a year old. This is an important limitation: that "DNA" cannot tell time. The blood was unable to tell whether or not it was deposited on Feb. 2-3-4 or at some other time. Defense provided good evidence that the children may have visited the motor home earlier, when it was parked, unlocked, in the neighborhood. More innocent prior contact was possible here. (6) The DNA-identified blood spots, without spatter analysis, could not answer the "when" and "how" of their own appearance. Were they part of a crime, or not? No one knows for sure. (7) The DA's interpretation of the crime of a kidnap-murder, primarily based on his interpretation of 2 spots of blood evidence in a suspect's vehicle, was in conflict with other major facts: (8) There was NO DNA from the Defendant in the victim's home (crime scene #1) and NO DNA from the Defendant on the victim's body or at the Dehesa recovery site (crime scene #2). The vehicle was only an alleged crime scene, but the judge allowed jurors a walk-through. Some came out in tears, thoroughly spooked. However, the jurors were not allowed to view the actual crime scenes: the 2-story home from which she was taken or the site where her body was found. (9) The fact that Westerfield was never at Dehesa was reinforced by forensic entomology (FE). This science is more powerful than DNA in some ways. DNA can only tell "who," but Forensic Entomology is able to pinpoint "when," and even "where" in some cases. (10) If the jury had followed the rules for weighing circumstantial evidence, they should have rejected the blood evidence as insufficient. There was major reasonable doubt here. (This is not the "street view" or TV view of things, but the "courtroom view.") The DNA in this case was unable to prove that a crime had occurred. A Forensic Stalemate: DNA vs. F.E. Some have called the excessive focus on DNA among jurors the "CSI effect." This mindset is engendered by too much TV-forensics watching and not enough critical thinking. Westerfield's Appeal Brief characterizes a balance, a stalemate, between the two opposing forensic sciences: forensic entomology (FE) at a crime scene, versus "DNA," 2 blood stains in a vehicle. This 50-50 balance has odds no better than a coin toss! This is the picture of an acquittal. It does not represent the overwhelming proof needed to tip the scales toward a conviction of guilt in a death-penalty crime of kidnap-murder. The DA failed to meet his burden of proof in this case, and this lack of rigorous proof required an acquittal from the Westerfield jurors. However, a "tie-breaker" appeared in the form of highly prejudicial non-forensic evidence and other improper pressures on the jury. The DNA alone was insufficient to prove the case without that dubious help. And the prosecutors knew this from the beginning. ["A Brick on the Scales of Justice" - forthcoming Blog article.] What we learn from this is that DNA is not, and cannot be, the magic answer to all life's mysteries. |
Welcome to Westerfield newsMy hero, Henry David Thoreau, tried to stay in the woods. One nasty social issue brought him out. Same thing happened to me. I am attempting to be a properly retired person, but the injustice of this wrongful conviction reminds me too much of the egregious Sam Sheppard case of 1954-1966. (I lived in Ohio then.) I am looking for a few like-minded people to join in discussing the current issues in a rational manner. -- Kayle Brooks Older Posts
February 2019
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