Judge’s Feud With Media Continues Into Penalty Phase of Westerfield Trial

The judge in the David Westerfield trial began the penalty phase Friday the same way he ended the evidence phase: feuding with the media.

Superior Court Judge William Mudd announced that he plans to ban the photographer in the pool for print media for breaking what Mudd said is a rule against taking pictures of people sitting in the courtroom’s gallery section.

A picture taken by San Diego Union-Tribune photographer Dan Trevan showed Brenda van Dam sobbing on the shoulder of her husband, Damon, as Westerfield was declared guilty of kidnapping and killing their 7-year-old daughter, Danielle. The picture was widely used and appeared on the front page of the Los Angeles Times.

“There has been a direct violation of the rules of the court,” Mudd said.

Mudd said he will hold a hearing Tuesday before finalizing his ban. He did not mention banning television cameras from the penalty phase, in which the jury must decide between recommending that Westerfield be executed or sent to prison for life.

Union-Tribune Editor Karin Winner said the newspaper did not feel it broke any court rule because the Van Dams were not spectators but former witnesses. Rule 980 of the California Rules of Court forbids pictures of spectators or jurors but does not mention witnesses who return to the court to watch the proceedings.

Winner said that Trevan was “following the rule as it has been interpreted by many local judges, that is, once witnesses, such as the Van Dams, have testified and later seat themselves in the gallery, there is no objection” to pictures.

She added that she hopes “this apparent misunderstanding can be cleared up” at the Tuesday hearing before the penalty phase resumes Wednesday.

Mudd and the media have had a series of confrontations. He banished the field producer for a radio talk show, refused to release transcripts of closed sessions and sealed search warrants. He also has lectured the media on several occasions.

Toward the end of the evidence phase, Mudd said he was once the staunchest advocate on the San Diego bench in favor of allowing television cameras and newspaper photographers at trials but that his opinion has shifted 180 degrees.

The Union-Tribune editorial page and others have criticized Mudd, particularly for the ouster of the producer of the radio talk show that used information leaked from a closed session.

“Judge Mudd is trying hard not to be Judge [Lance] Ito,” the judge in the O.J. Simpson case who was criticized for allegedly losing control of the courtroom, said Dean Nelson, journalism professor at Point Loma Nazarene University. “But now it looks like it’s Judge Mudd who’s out of control.”