Metropolitan News-Enterprise


Tuesday, May 7, 2002


Page 4


Court of Appeal Approves Unsealing of Documents in Girl’s Murder


By a MetNews Staff Writer


The Fourth District Court of Appeal yesterday upheld most of a San Diego Superior Court judge’s order unsealing search warrant information in connection with the investigation into the kidnap-murder of 7-year-old Danielle Van Dam.

A neighbor of Van Dam and her family, David Westerfield, was arrested in February and charged with the killing. Prior to the arrest, police obtained warrants to search the suspect’s computer, home, automobile, and motor home,  as well as to search a dry cleaner for items Westerfield dropped off for cleaning, and for telephone records.

The Copley Press, Inc., which publishes the San Diego Union-Tribune, moved to unseal the warrants, underlying affidavits, and other documents. San Diego Superior Court Judge Cynthia Bashant granted the motion with respect to more than 200 pages of documents.

Beshant left sealed two exhibits containing what was said to be “sexually explicit material” submitted in support of one of the warrants for the search of Westerfield’s home. She also ordered that portions of certain affidavits, the transcript of an in camera hearing on the motion, and briefs filed by the parties in response to Copley’s motion remain sealed.

In ruling yesterday on Westerfield’s petition for writ of mandate,  a divided panel said the defendant’s right to a fair trial overrides the public’s right of access with respect to specified portions of five affidavits submitted in support of the warrants, but not otherwise. A dissenting justice argued that all of the materials should be sealed until trial.

California law, Justice James A. McIntyre wrote for the court, “recognizes a presumption of accessibility to judicial records in criminal cases but also authorizes trial courts to withhold access” when necessary to preserve the defendant’s “overriding” right to a fair trial.

Sealing is appropriate when “the overriding interest in the defendant’s right to a fair trial overcomes the right of public access and supports sealing; there is a substantial probability the overriding interest will be prejudiced if the record is not sealed; the sealing is narrowly tailored; and no less restrictive means exist to achieve the overriding interest,” McIntyre wrote.

“We have thoroughly reviewed the materials under seal, considered the arguments of counsel and conclude the probability of unfairness requires somewhat broader sealing than that ordered by the trial court,” the justice said. “Most of the material, however, should be made public now.”

Justice Alex McDonald joined in McIntyre’s opinion.

Justice Richard Huffman, dissenting, said he largely agreed with McIntyre’s statement of the law but believed “the only fair balance of the competing interests in this case is to seal all of the search warrant affidavits until completion of the trial court proceedings.”

The unsealing of the documents in the highly publicized case, Huffman warned, “will create a news event, an opportunity for “commentators” to speculate and to add to the volume of otherwise inadmissible material presented to potential jurors in this case.” This will be to the detriment of the defendant, whose ability to obtain an impartial jury and have the case decided solely on the evidence admitted at trial will be jeopardized, the justice said.

The case is Westerfield v. Superior Court, 02 S.O.S. 2215.


Copyright 2002, Metropolitan News Company