Criminal
Aug. 15, 2002
Westerfield Judge Refuses Reporter Entry
SAN DIEGO - The judge presiding over the trial of David Westerfield refused Tuesday to readmit a radio reporter he barred from the courtroom last week after her station reported details of a closed hearing.
San Diego County Superior Judge William D. Mudd said the radio station, KFMB-AM, and its sister television station, KFMB-TV, have violated their ethical obligations. Mudd referred to a radio report about the closed hearing and to a televised display of a photograph of Westerfield's son.
The radio station reporter, River Stillwood, is "a representative of a station that delights in shoving it in the face of this court," Mudd said.
"Her boss and KFMB-TV don't get it," he said. "She's out and will remain out."
Stillwood reports for the "Rick Roberts Show," which has covered the case for months in a talk-show format on the radio and has been the first to report many aspects of the case.
Westerfield, 50, is accused of kidnapping and murdering his 7-year-old neighbor, Danielle van Dam.
The Stillwood controversy erupted as the jury entered its fourth day of deliberations.
Jurors asked to see a tape and review the transcript of police Officer Paul Redden interrogating Westerfield on Feb. 4, two days after Danielle's parents discovered that she was missing from her upstairs bedroom. Redden concluded that Westerfield was being deceptive about his knowledge of Danielle's kidnapping.
Westerfield was arrested Feb. 22 and has been held without bail. He faces the death penalty if convicted. Danielle's nude, decomposing body was found Feb. 27.
Media expert Terry Franke, who is general counsel of the California First Amendment Coalition, said Mudd might be on thin legal ice in his dealing with the radio reporter.
A judge, Franke said, has no legal authority to bar a reporter from the courtroom "on the strength of the judge's distaste" for work of the reporter's colleagues or station.
"There's no authority for simply using one's sense of outrage or righteousness for throwing reporters out of the courtroom," said Franke, who is monitoring the Westerfield trial.
In barring Stillwood from the courtroom, Mudd banished her to an adjacent media room, set up to accommodate the hordes of electronic media that have swarmed over San Diego for the trial. But, Mudd said, she can't take part in interviews with jurors after the trial.
Mudd's action stemmed from the radio station's report about the contents of a closed court hearing concerning a statement Danielle van Dam's father allegedly made to the mother of lead defense attorney Steven Feldman. "You must be very proud of your son," the station reported Damon van Dam as saying to Feldman's mother. Both were watching the trial from the audience.
The closed hearing was the second in which Damon van Dam became the center of controversy. Earlier in the trial, Mudd banned the murder victim's father from the courtroom as a "security risk" after he reportedly stalked Westerfield in the corridors as the defendant arrived in court. Mudd also admonished van Dam for what Westerfield's attorneys described as "mad-dogging" the defendant, or staring intently at him during testimony.
On Tuesday, Mudd also criticized KFMB-TV for airing photos of Westerfield's son, Neal, after the 18-year-old had testified. The judge had asked that the media refrain from using the son's photo, to protect his privacy.
The trial is being broadcast nationally by Court TV, whose video camera is the only one allowed in the courtroom under a pool arrangement. One still photographer is also in the courtroom.
Mudd said in a 20-minute hearing Tuesday morning that he had once been a zealous advocate of full courtroom access by the media. Since this trial began, he said, his position has "changed 180 degrees."
Joann Rezzo of Gray Cary Ware & Freidenrich, who represented Stillwood and KFMB-AM, argued before Mudd that Stillwood honestly told Mudd last Thursday that she didn't know the source of the report the radio station had broadcast the day before.
"Miss Stillwood simply did not have access to that information," Rezzo said. She urged Mudd to "talk to the people who were actually in the courtroom at the time."
Even if she did know the source, Rezzo said, she was protected by the California Shield Law, which states that a reporter cannot be forced to divulge a source under most circumstances. And reporters have a constitutional right to be representatives of the public in a courtroom.
The judge said an internal investigation was being carried out to determine if the source was a prosecutor, defense lawyer, bailiff or court employee.
Mudd said Rezzo quoted no law that gives a particular reporter a right to be in the courtroom. He also said that the media presence threatened to make a mockery of the trial. He particularly mentioned, without identifying them, "idiots from a Los Angeles talk show" who on Monday had been in front of the next-door Hall of Justice "acting like teen-agers."
As for Stillwood, he said, anyone associated with the broadcast of the closed hearing wasn't going to be allowed into his courtroom.
Mudd said the report of the closed hearing left the participants feeling "totally violated."
When Mudd first barred Stillwood from the trial, he said he might move to an unspecified courtroom if more closed hearings were necessary, leaving spectators with the impression that Mudd thought someone might be electronically eavesdropping on his own courtroom.
The dispute over the radio broadcast is only the latest of many that involve the media since the trial was assigned to Mudd.
Most of the legal battles have been over Mudd's orders to seal court documents. Others have been over the numerous pretrial hearings that he closed. In most cases, appellate courts have backed Mudd, although the justices have ordered him to release search warrant affidavits and inventories.
Mudd repeatedly has said that his purpose in sealing records, holding closed hearings and imposing a sweeping gag order is to ensure Westerfield a fair trial despite the massive national media coverage of the trial.
The media presence grew during the trial. Now that the jury is deliberating, it continues to grow.
On Tuesday, one new face among the media pavilions erected in front of the Hall of Justice was Captain Enron. Dressed in red leotards, pointy red shoes and a red jacket, he carried his own small video camera. The captain said he does political parodies and has a cable TV show in London. He's also working on a piece for Comedy Central and has his own Web site, he said. He had passersby dancing and singing for his camera, but the purpose of his appearance wasn't clear.
Among the more traditional media covering the trial, all with their own satellite trucks and swarms of mostly white vans and sport utility vehicles, are - at a minimum - six San Diego TV stations, four Los Angeles TV stations, Court TV, and national networks such as Fox, NBC, MSNBC and CNN.
San Diego and Los Angeles radio stations and a national CBS radio correspondent also are present. Newspapers and wire services are represented, but without tents and mounds of equipment their presence is far less noticeable.
Claude Walbert
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