Litigation
Aug. 16, 2002
Sequestration Would Be Best in Westerfield Trial
Forum Column - By Marjorie Cohn - After a two-month trial, the jury is still deliberating about whether David Westerfield murdered and kidnapped Danielle van Dam, who disappeared from her bedroom on Feb. 2. The case has been the subject of an unprecedented volume of media coverage in San Diego. Yet, in spite of numerous sequestration motions by the defense, Judge William Mudd unwisely declined to sequester the jury in this capital case.
By Marjorie Cohn
After a two-month trial, the jury is still deliberating about whether David Westerfield murdered and kidnapped Danielle van Dam, who disappeared from her bedroom on Feb. 2. The case has been the subject of an unprecedented volume of media coverage in San Diego. Yet, in spite of numerous sequestration motions by the defense, Judge William Mudd unwisely declined to sequester the jury in this capital case. By his refusal, Mudd has run the risk of reversal on appeal if the jury's exposure to publicity is found to have affected its verdict. If the case moves to the penalty phase, Mudd should move quickly to sequester this jury.
Because sequestration isolates jurors during off-duty hours in a hotel or other venue where bailiffs can control their exposure to publicity, it is a drastic remedy. Courts usually sequester juries only when news coverage of the case cannot otherwise be avoided. Sequestration was a controversial part of many explosive California cases. For example, the O.J. Simpson jury, which was sequestered for nine months, became a tightly-knit unit which returned with an acquittal after only a four-hour deliberation.
But defense lawyers rarely favor sequestration because of the prevailing wisdom that it favors the prosecution by fostering a kind of "Stockholm syndrome," in which jurors bond with their captors, the supervising bailiffs, who are usually police officers. Although this didn't occur in the Simpson trial, the sequestered jurors in the 1985 trial of then-San Diego Mayor Roger Hedgecock, who was charged with perjury and conspiracy in connection with illegal campaign financing, succumbed to the alcohol and opinions provided them by the bailiff. This misconduct led to a remand of the convictions on appeal.
Some judges presiding over high profile cases have successfully limited sequestration to jury deliberations. This occurred in the case against Damian Williams and Henry Watson, accused of the near-fatal beating of truck driver Reginald Denny as the 1992 Los Angeles riots broke out following the Rodney King beating.
Only very rarely, however, have jurors requested sequestration. In 1987, for instance, a jury requested sequestration on the 21st day of deliberations in the retrial of Sagon Penn on five felony counts stemming from the fatal shooting of San Diego Police officer Thomas Riggs and wounding of two other persons. The request came after co-workers commented about the case to some jurors during a recess in deliberations.
Jurors in the Westerfield trial brought a similar concern to Judge Mudd shortly before deliberations began. They were worried about their inability to avoid coverage of the case at their work places during gaps in the trial. Yet, instead of sequestering these jurors, Mudd put the burden on the jurors themselves to tell him if they wanted to be isolated from their families and community.
In doing this, Mudd has abdicated his role as judge by deferring to the jury on the issue of sequestration. It is the judge's job to know when it is necessary to protect jurors from outside influences.
During jury selection in O.J. Simpson's criminal trial, defense attorney Johnnie Cochran quoted one prospective juror, who was reacting to the overwhelming pretrial publicity in the case: "It's in the air. It's everywhere. It's when I go to my gym in the morning to work out. It's when I walk into any place. It's everywhere." Media coverage of the Westerfield case has likewise blanketed San Diego County. It is incumbent on Judge Mudd to prevent the jurors from being influenced by the pervasive publicity. If the jury convicts Westerfield and the case moves on to the penalty phase, Mudd should move to immediately sequester the jury.
Marjorie Cohn, an associate professor at Thomas Jefferson School of Law in San Diego, is co-author of "Cameras in the Courtroom: Television and the Pursuit of Justice."
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