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Gardner and the Presumption of Innocence March 18, 2010

Posted by Nina Rosenstand in Criminal Justice, Current Events, Nina Rosenstand's Posts.
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Sorry I’ve been quiet lately—I’ve been under the weather. And there’s been much to talk about, so let me see if I can catch up!

The murder of Chelsea King and arrest of her accused killer, John Albert Gardner, is of course something that has occupied the minds of many San Diegans, myself included. And the discovery of the body of Amber Dubois, and the possibility of a connection between the two tragic deaths of young women have only added to the sense of outrage and urgency in our community—a terrifying suspicion that Chelsea’s death, and perhaps also that of Amber, could have been avoided with more diligent surveillance of a known sex offender. 20/20 hindsight is cheap, though, and the fact that the laws that got Gardner convicted of his first sex offense (or at least the first he was charged with) were different in 2000 that they are now seems to have escaped some critics. More safeguards are in place now, and we can’t send our outrage retroactively back to 2005 when he was paroled and complain that he wasn’t convicted according to the laws of today. We can, however, hold the appropriate authorities accountable for not keeping an eye on him the way the law demanded at the time.  And we can try to improve on current laws. (And we can remind ourselves to be more vigilant in our own lives. That’s another topic…)

An issue that has been raised is whether Gardner can get a fair trial in San Diego. Information released before the arraignment (and after the arraignment, no more information about Chelsea’s death will be released before the trial, to avoid overexposure to the case, and prevent it from being judged in the media) included tidbits about Chelsea’s clothing found with DNA evidence. We have a sense that the DA’s office has a very strong case against Gardner. Even so, it shouldn’t be hard to find jurors who are able to keep an open mind—it can usually be done. Even in the case of David Westerfield (who killed Danielle van Dam) the trial took place here in San Diego, with a jury that was perfectly capable of weighing the evidence on its merit, and not base their judgment on what they’d seen on TV. But who will defend Gardner in court? Two attorneys from the Public Defender’s Office. In the San Diego Union Tribune, columnist Logan Jenkins speculates that they will probably be vilified for their willingness to defend Gardner, just like Steven Feldman was vilified for defending David Westerfield. Jenkins points out that regardless how certain we may be that Gardner killed Chelsea, and regardless of how much we may despise him, he still deserves the “best defense our tax dollars can buy,” because the presumption of innocence is one of the cornerstones of our legal system. And, I might add, far preferable to Napoleonic Law which we encounter south of the border, where a person is presumed guilty until he or she can prove their own innocence. So I completely agree wth Jenkins that Gardner deserves his day in court, with competent lawyers speaking for him. However, I don’t quite agree with some of Jenkins’s general assumptions, if I understand him correctly: For one thing, the law guarantees presumption of innocence in court, not in the media, or around the kitchen table. We are perfectly in our right to think whatever we want about Gardner in the court of public opinion—but if we have reached an opinion that is flavored by news coverage, we just won’t be good jury material. It doesn’t mean we ordinary people have to empty our minds of every fact we’ve read, or pretend we can’t put two and two together. Another thing I find somewhat disturbing about Jenkins’s op-ed piece is his reference to Westerfield’s lawyer Feldman and the vilification of him. If Jennings is referring to people harassing Feldman during the trial, he’s right. That was inappropriate and unworthy of San Diego as a society. But what about after the trial? That was where a certain talk-show host spoke up against Feldman-–because it became clear that Feldman had deliberately tried to mislead the jury. According to information coming out after the trial, Feldman had been aware that Westerfield had killed Danielle, because Feldman had been in the process of a plea bargain with the court on behalf of Westerfield when Danielle’s body was found. And even so, he put up a defense of Westerfield where he misrepresented facts and tried to deflect suspicion onto somebody else. Now this is a fine line, legally: A defendant is entitled to the best possible defense—but as far as I know, there are limits to what a defense lawyer can try to put over on jurors, and Feldman was dancing very close to that limit. Some legal scholars said he crossed the line. That was the talk show host’s concern, not that Feldman had chosen to defend a murderer.  After all, that’s what high-profile defense lawyers do. Let’s make sure we remember the actual situation before we begin to imagine future parallels in the Gardner defense.