In Defense of David Westerfield’s Attorneys
LACBA Update, November 2002

By Terri Towery, member, LACBA Professional Responsibility and Ethics Committee. Towery has worked at the L.A. County Public Defender’s Office since 1986, both as a trial attorney and in the appellate division of the office. She was co-counsel for Lyle Menendez in the retrial of that case. Her current appellate assignment involves handling pretrial writs and assisting trial counsel with law and motion matters for all of the capital cases in the office. The opinions expressed are her own.

In my office, the water cooler conversation of the day is about the conduct of defense counsel in the David Westerfield capital trial in San Diego. However, the conclusions reached in those discussions are very different from some views currently being presented in the media.

We are all familiar with the Westerfield case, where seven-year-old Danielle van Dam was kidnapped from her home and murdered. Westerfield was convicted, and a jury verdict of death was rendered.

Shortly thereafter, the press reported that defense counsel had approached the prosecution before trial and offered to have their client disclose the location of the body if the state would agree not seek the death penalty.

T.V. personality Bill O’Reilly immediately seized upon this information, claiming that defense counsel were “liars” who “misled” the jury during the trial. O’Reilly also charged that the attorneys violated the state ethics rules by their “misleading” tactics.

O’Reilly’s position may appeal to the average layperson. It certainly carries great moral weight, particularly when the undiscovered body is that of an innocent child. And it goes hand-in-hand with the “How can you defend those people?” mantra that criminal defense attorneys hear virtually every day. (Interestingly, if the individual reciting the mantra is ever accused of a crime, the American adversarial system of providing representation to “those people” instantly becomes much more easily understood and supported.)

Despite its simplistic moral appeal, O’Reilly’s argument is very dangerous to our system of justice. Stripped of rhetoric (and volume) the argument is this: if criminal defense counsel believes his or her client to be guilty, the case is over. At that point, counsel may not “mislead” the judge or jury by vigorous cross-examination of prosecution witnesses, or by arguing “false” alternative interpretations of the evidence. Counsel is morally and ethically bound not to dispute evidence and theories he or she “knows” to be true. The argument even hints that counsel should disclose information obtained in confidence from the client if such disclosure is for the greater good.

What makes O’Reilly’s argument even more dangerous is the fact that some attorneys and judges are willing to appear on his show and sign on to this view of our criminal justice system. A defense attorney said that the job of the defense is to seek “truth and justice.” A judge said that Westerfield’s defense attorneys were wrong to “suggest to the jury another theory of how [Danielle] died, because in doing so, they’re perpetrating a fraud on the jury by suggesting something they know in their own minds and hearts to be false.”

Hogwash. This discussion about the Westerfield case is a perfect example of why we lawyers love to say “hard cases make bad law.” Or, in this instance, bad ethics.

What exactly were Westerfield’s defense attorneys supposed to do? Refuse to negotiate a plea bargain that would save their client’s life? Disclose the confidential information obtained from their client, thereby potentially further incriminating him? Declare a conflict-of-interest and get off of the case? If the latter, how could Westerfield ever have legal representation without being required to lie to his attorneys?

And given the failure of the plea negotiations, what should the attorneys have done at trial? Declined to cross-examine the state’s witnesses? Refused to raise and argue reasonable inferences from the evidence? Concede that the evidence proved their client to be guilty beyond a reasonable doubt?

Of course not. His attorneys were obliged to do their damnedest to obtain the best result possible for him. That is precisely what they did. They sought an advantageous settlement for him. They did not (and could not) present any false evidence or perjured testimony at the trial. They did challenge the government’s proof and argued that it had failed to meet its burden. They did argue reasonable inferences that could be drawn from the evidence, including the possibility that someone other than their client committed the murder. Not only was their conduct ethical, it was both ethically and constitutionally required of them.

Criminal defense attorneys are never the judges of the facts. Indeed, they are not even always right in their assumptions of what the facts are.

I would venture to guess that more than one person convicted of a crime and later exonerated by DNA evidence had confessed to defense counsel. (We know, for example, that many such people have falsely confessed to law enforcement.)

I am a capital defense attorney. No matter how strongly I believe that I “know” what happened, my job is not to decide guilt or innocence. My job is to vigorously defend my clients, to make sure that their constitutional rights are scrupulously honored, to require the government to prove its cases beyond a reasonable doubt, and to maintain the confidences of my clients at all peril to myself. And I intend to continue doing my job properly and ethically, O’Reilly’s opinions notwithstanding.