In an exclusive interview, David Westerfield's lawyer, Steven Feldman, talks about defending the guilty, the anti-Semitic threats and his lack of faith.
by Micah Sachs
At the beginning of February, right after Steven Feldman had taken on David Westerfield as a client, Feldman walked his now-notorious client to his car. Reporters, with cameras, microphones and tape recorders in hand, swarmed the pair as they left Feldman's quaint Golden Hill office.
"They were following. Of course you know they were following everybody," recalls Feldman, "and they hit me in the head with a camera. Later, I learned I needed to be very careful about what I said."
Feldman took that caution to its extreme. With the exception of a few brief appearances in front of the courthouse at major turning points in the trial - at verdict, at sentencing, etc. - Feldman refused to speak to the media from the moment he took the case.
Until now.
In his first in-depth interview since he took the case that consumed San Diego for much of the last year, Steven Feldman talks about how the case affected his life, why he does what he does, his conflicted approach to Judaism, and much more. The one thing he does not talk about is the case itself.
Because he feels that speaking about the details of the case can do nothing to help his client, Feldman would only consent to an interview if he were free not to comment on the details of the case. We at the San Diego Jewish Journal agreed to this condition because when it comes to the details of the Westerfield case, what is there left to say? Between the overwhelming evidence against David Westerfield and the jury's conclusive verdict, it should be clear to any reasonable person that Westerfield is guilty of kidnapping and murdering 7-year-old Danielle van Dam.
But just because Westerfield was a monster, does that mean Feldman is a monster for representing him? We at the Journal don't think so. In excerpts from a lengthy interview, Feldman reveals much about the trial, himself and why he considers himself and his profession…
LIBERTY'S LAST CHAMPION
Why do you do criminal defense?
I essentially got my political education in Berkeley in the mid-60s… and I learned on the basis of demonstrations and some of my political activities that the Constitution was at risk. And I view my job as defender of the Constitution. And I view my job as defending the oppressed against the powers of the state. Why do I do it? It seems like the right thing, feels like the right thing. You can tell, in your own moral fiber, what is and what isn't right, and at least from my perspective, it's the right thing to do.
Has it always been criminal defense?
At Berkeley, I decided to go to law school my senior year, and there never was a question that I wanted to be a criminal defense lawyer… In the '60s and '70s, defense lawyers were kind of viewed as heroes in our society. Clarence Darrow [the Leopold and Loeb trial], William Kunsler [The Chicago Seven]… [pause] Leonard Weinglass [Mamia Abu-Jamal], among others - Charles Gary - these were people who modeled for the younger lawyers to show what it was like trying to defend people's rights, when a lot of people hated 'em. One thing I've learned is: I'm not a popular guy, my business isn't popular, what we do isn't popular. But it's morally the high ground and it's always been morally the high ground.
I've also learned that the cops cheat, and I've litigated cases where the prosecution cheats, where the government presents false evidence and there needs to be people like me to make sure that if there's going to be criminal prosecution, we do it fairly and we do it right. This is an adversary system; the Constitution is adversarial. That means the prosecution's job is to get a conviction, if they can, PERIOD. The defense's job is to get an acquittal, or a lesser charge, if it's possible, within the parameters of the law, ethics and evidence. So to a certain extent I think the defense bar operates as a check and balance against the power of the state.
Do you ever feel as if you're defending someone who doesn't deserve to walk free?
Whether or not an individual is guilty or not guilty is not my issue. I don't care. My job is to evaluate the case and assist the person as best as I possibly can. That is the ethical requirement of the criminal defense lawyer. Morality is not an issue that I need to address - that's something that religious people can address, or others in the community. I leave morality to other people...
You know, defense lawyers of course defend individuals who are guilty. But I don't really see, in our society, that a citizen who is guilty should be given any different treatment than a citizen who's not guilty.
So even if helping them could be construed as morally wrong?
No, because I don't accept the notion that what I do is morally wrong. Or that any outcome I've ever been involved in has ever been morally wrong. There are ethics that require lawyers - and this lawyer in particular - to do the best job possible. There are rules; I operate within the rules. All of that's moral. The Constitution doesn't distinguish between legal and moral. The Constitution says we have rights. It is the defense bar's job, the criminal defense lawyer's job to assure that everybody gets those rights protected.
How many murder cases have you been involved in?
Mmm… [he pauses to recall] more than a dozen, several of which were capital punishment cases (that is, where the state sought the death penalty). I continue to represent these individuals. I represented this one individual on death row. He was convicted in 1982. In 1991, there were hearings in that case where a judge concluded that with regard to the representation this man had in 1982 by his lawyers that there was (quote) "nothing, absolutely nothing, of a competent nature done by his lawyers" (end quote). Nothing competent was done by his lawyers. He's on death row. That means the people on death row are there to an extent, because of the quality of the lawyering, and if there is a problem with the quality of the lawyering, and if the state, in a premeditated manner, is trying to execute these people, somebody needs to - I'll say rescue - get involved, make sure the system stays honest, especially in circumstances where the state is trying to use its power, in a premeditated and deliberate way, to kill somebody. And that's precisely what a capital prosecution is - the state, for whatever reason, is trying to kill somebody. It's a premeditated act; the defendant is accused of a premeditated act but the state thinks about it a great deal longer usually than the defendants do. So what I'm trying to communicate to you, in terms of the kind of work I do, I make sure, we the criminal defense bar makes sure, that the system functions in an appropriate manner, given the consequences. Because we make the moral distinction that liberty is more important than money.
I don't understand. How's that work?
It's kind of like this: there's an issue of due process and there's an issue of crime prevention. Due process means… respect the individual's rights, treat him fairly, give him process - a trial, hearings - at which he has the opportunity to present evidence. Respect and honor the burden of proof, which is beyond a reasonable doubt, before you remove that person's liberties. It's called due process.
Politically today, crime prevention is taking priority over everything, basically. Because of the circumstances the country finds itself in, because of the politics that have been going on for the last 15, 20 years, California, the federal government, and many states have become more punitive, and so the model is crime prevention. The ethics segue then becomes, which is more important in life - would you rather see 10 guilty people acquitted than one innocent person convicted, or would you rather just convict them all to be safe? The criminal defense lawyer says, "Uh-uh. We want due process." This isn't crime prevention.
…The government will frequently say, "The ends justify the means." And there's a specific illustration of that… which is a capital murder case I was involved in in San Diego prosecuted by the San Diego District Attorney's office. It was called Butler. The jury originally hung this in about 1989… Mr. Butler was then recharged by Deputy District Attorney Keith Burt, along with several others, with conspiracy to commit murder on Gerry Hartless … In trying to convict these men, the district attorney presented perjured evidence. I know this because our court of appeal ordered a hearing after other lawyers persuaded the judges in the court of appeals, that the district attorney's office was dishonest. That we know, because there were photographs presented by the defendant's attorney that the district attorney's office was literally providing sexual benefits to the informant… And the way we know this is because, when the informant was busted, out came the photographs of him and his girlfriend having sex in the D.A.'s office. And the case was called "Sex in the D.A.'s Office." And it turned out literally, honestly, that the district attorney lied, they never told anybody this, they presented witnesses during trial to testify that that witness (whose name was Darren Palmer) was being treated the same as every other witness in the case. Which was a lie, because, as I told you, we had evidence that the district attorney's office was providing females for sexual benefits to this guy and we proved it. Okay, and as a result, that conviction was reversed.
Now, where's the morality in that? Did the ends justify the means? And where does the criminal defense lawyer fit into that? The answer is, it's our job to keep them honest, and if we didn't do that, there'd be four guys spending the rest of their lives in prison, and the district attorney's office would've never revealed that.
What's it like in the courtroom?
The experience in the courtroom is an extraordinarily intense experience. It's very focusing and it's very centering, and I have been told by friends that I'm better when I'm in the courtroom than when I'm out of the courtroom [He laughs.] That's a sad statement about my personality.
Why do you think they say that?
Because I get a focus… there's an intensity in the courtroom that blocks everything else out. When I have stuff on the business end, or I have other cases for five other clients, you deflect that out because you have responsibilities. In the courtroom, nobody can touch you. The only thing you have to do is defend the individual accused. So I guess it's a focus issue, I think it is a focus issue.
Tell me about your Jewish background.
I went to religious school in the San Fernando Valley in Los Angeles at Temple Beth Hillel. I was bar mitzvahed. At 13, I recall saying in a high-pitched voice, "Now I am a man."
Did you believe it?
Eh, no. [He laughs] No, and I don't believe it today…
So I went to religious school and was bar mitzvahed and that was that. But, there's always been a connection, I've always witnessed a connection between Jews. It's there. In life it's there. It's cultural, it seems to me it's cultural (I have problems with the religious aspects of Judaism). But I don't think it's necessary that I necessarily adopt the religious aspects of it, because to me, it's kind of cultural.
You mean the sense that when you meet another Jew, there's a sense of a common connection, regardless of background, wealth, politics, whatever?
Yes, that's correct because your relatives may have been slaughtered by Hitler or may have been run off by the Cossacks like mine. We have that in common. I can say, "OY!" and you'll understand it.
In the courtroom, generally, Jews are more liberal. Generally. Actually, that's not really what I want to say - they're less biased, because what you have in San Diego, especially in juries, is a great number of retired individuals, ex-military, who are routinely very, very, very conservative, and it's difficult to get a fair hearing in San Diego. It's difficult to get a fair trial anywhere these days. Because people always bring their biases. But I'm just saying from my experience, being Jewish has allowed me a connection with individuals and has made a difference in the courtroom.
Do you believe in G-d?
[Long pause] No. [He pauses again.]
Is that something that came to you over time or have you always been skeptical of the idea?
I've always been skeptical. I've always been a guy who wants proof, if I can't see it. You know, for the notion of faith, I go to Mel Brooks: "You hope for the best and expect the worst." Faith I don't have. Because I've seen too much in the courts… Look around, I've got plaques up on purpose - I'm not being nasty - but that Butler plaque, which is right straight behind you was an award I got… You said, "Is it something that just happened?" I'm sorry, I'm digressing. But you see, BUT FOR OUR WORK, these people would be in prison for the rest of their lives and this is a case where the prosecution wanted to kill the defendants on! And they were providing the informant - who they were claiming was honest - with sex!
[Points to another plaque] This was a case that I tried in the mid-'80s, it was called The People vs. Corenevsky… where a capital murder defendant had been in jail for a number of years and the county had refused to fund his defense. And under our Constitution, defendants are entitled to equal protection, meaning equal access to resources. And in that case, a Superior Court had ordered the county to pay for a lawyer, an investigator and experts. And the Board of Supervisors ordered the county auditor to disobey the judge's ruling. The country auditor went to a jail. There was a national splash. Ultimately he was released after hearings before the California Supreme Court in a published decision called Corenevsky vs. Superior Court, the county was ordered to pay - to pay for defense, to pay for experts. And I was appointed to represent this man. It was a capital murder prosecution, okay. He was accused of killing somebody and they were trying to take his life and because the county had refused to fund his defense, the superior court judge said they couldn't kill him, they could just lock him up for the rest of his life. So I got the case, we did hearings. As a result of the hearings, the county funded it. And, ultimately the case had a change of venue, it was moved to Orange County, the case was tried and the client was acquitted. [He gestures toward photographs on the wall.] You don't see this very often. One of those is a picture of the jury they took of themselves which they chose to give to me. Take a look at this! This is the jury. [He reads the note under the picture.] "S. Feldman. May you win many more cases."
So when you find out jurors are Jewish, you want them on the jury?
Absolutely. I want people who have gone through hardship. Minorities? Generally good jurors. Wealthy, upper class people who haven't suffered, who don't know what life on the other side of the tracks is like, who are more concerned - or most concerned - about maintaining the status quo, who are more inclined to believe police, who would never believe in a million years that a police officer would lie, or that a district attorney would suborn perjury, which is really among the most despicable things imaginable.
Do you sense anti-Semitism in the legal profession? In the district attorney's office? In society in general?
I think that there's a current of anti-Semitism in our community.
In my representation in this case [Westerfield], I was getting some very serious anti-Semitic remarks - it's quite obvious that I'm Jewish. Can I prove it? No. Can I put my hands on it? No. Will people admit to it? Probably not. But remember: this is the home of the John Birch Society, San Diego.
When you say current, do you mean there are pockets of extremists or that it's a widespread thing among the general community? That otherwise respectable members of society have some level of anti-Semitism?
Intuitively, I feel that it's there, but objectively I can't prove it. Now, having read much that's been in the newspaper recently, within the district attorney's [former D.A. Paul Pfingst] office, there's allegations that even the head district attorney has made anti-Semitic remarks. There's allegations that Bonnie Dumanis allegedly released that information, but really it came from deposition testimony by a man named Jim Atkins who I know and have known for many years. He's an honest man. And he thinks the [former] district attorney made anti-Semitic remarks. Now, if the district attorney of San Diego made those remarks, that's problematic.
Tell me: what's it like, personally, to be involved in a case of Westerfield's magnitude? What does it mean for your personal life? Did you feel you couldn't get a moment's rest from the case?
In a case of this magnitude, and in any case that I'm involved in that's substantial, the effort is always overwhelming and always totally focused because… I prefer to talk about a case like David Lucas, who is someone I represented and was convicted some years ago. He was originally charged with six murders and an attempted murder. That was a case that was litigated over two years, that I was involved in. It's a very extraordinary experience.
In the Westerfield case, it was completely unimaginable what happened, and it continues to be. It's not something you can really relate to unless you step in the shoes of the lawyers because it's impossible to imagine your wife walking through Balboa Park and hearing your voice during the preliminary hearings. Or people [on TV], every single night, between 7:30 and 8, having something to say about you. Or every single night, between 9 and 10, having something to say about you, on the networks. It's impossible to step in the shoes of someone who's running live, every single day of the week where they're preempting local television. Where your peers are being critical, where everyday, there's something said about you. It's pretty daunting. And what privacy I used to have - which I very much value (and you don't know this about me, but I'm a private guy. I mean, I am now officially a public figure because I'm a trial lawyer). And as a result of that, I can't sue people who libel me such as yellow journalist Harvard grads who send people out in the dead of the morning to photograph me.
Who did that?
[Bill] O'Reilly, [of Fox News Network's The O'Reilly Factor] who decided to call the lawyers liars and decided to send out - unbeknownst to the lawyers - a camera crew to my house, which is not listed. And when I went out to get the newspaper at 7 o'clock in the morning, there they were. It's a good thing I put a shirt on that morning. And then when I went in the house, my unlisted telephone number went off and it was Fox News calling. And I declined to speak to them; I told them they ought to mind their own business. And then, there was intense vilification. Suddenly, the lawyers are despised because we defend unpopular clients. If you recall the San Diego Union-[Tribune]'s editorial, I was called the most despised person in San Diego next to David Westerfield. And I was thinking: what about Osama?
Now. What effect is that going to have on an individual? I don't know.
It's very difficult because I can't defend against the allegations - that really is a problem. That means I have to take libelous remarks from ignorant people who fundamentally do not understand the system. In yesterday's paper [Sunday San Diego Union-Tribune], in the "Currents" section, there was an article that talked about how Americans don't get social studies anymore, that they don't understand the fundamentals of the Constitution. Well, those same Americans are apparently invested with the power of the microphone, and they can run their mouths in ways that nobody can defend against. And that's happened to us. Our characters are assassinated and there's absolutely nothing you can do about it. EXCEPT… we know better than them.
Do you think people made harsh attacks to get you talking, to flush you out, to get you to say things that could potentially compromise your client?When I took the case, the press was all over us. FYI: in this office, we've been inundated with e-mails, with letters, with faxes, with telephone calls, with threats, with anti-Semitic remarks, with letters that say we're great, with letters that say we should go to hell, with letters that say my children should get AIDS, with letters that hope my wife gets gang-raped! I've got threats that I've turned over to the police because they were hate crime threats. You asked about anti-Semitism: yes.
But I made the decision early on, as far as I'm concerned it's the right thing. There are some lawyers who say there's no camera I don't like, that I've never met a camera I don't like, but the reality of cases is I think - and I said this to the press and I've held to this position - I'm not going to litigate the case outside the courtroom. I'm going to litigate the case in a courtroom, not on the streets of San Diego. And I've stuck to that. And I think that was the right thing to do. Others may attack us. There's no responding. And I know, because I have experience at this: they want to talk to me, the media wants to come talk to me, you see that I talk fairly rapidly, they're going to cut me. Right? They're going to take just whatever soundbite they like, and I've learned to speak in soundbites some. I don't feel as if I need to speak in soundbites with you but maybe I'll regret that.
Actually the whole interview is only going to be 10 words.
[He laughs.] I know.
Any idea on the number of threats, letters you got?
[He pauses, calls his secretary.] During the peak of Westerfield, how many calls and faxes did we get a day? About? [Pauses.] About 30? Thirty a day? And faxes? About five a day? Okay, thanks. The calls would be, "Ask this question! You're being a fool! Why did you do this? I hope you go to hell!"
Did the case make you change your personal habits? Force you to protect your kids?
Because I'm a criminal defense lawyer and because I represent people who are unpopular, there is sometimes collateral damage to my family. My children are in school in Arcata, so they're not directly affected. But my wife is a teacher in the district. Suddenly, viruses started getting into her e-mails at school to the point that the district had to get involved to filter her out. So people were trying to virus my wife! Some national commentator - I can't say that it was a national commentator - someone, perhaps the same yellow journalist, who has no integrity and obviously doesn't understand the system, may have… said, "Go to her school and get to her to see if they could indirectly get to me." [Phone rings. He talks to her a minute.]
That was a public defender just calling to say hi. There is support for what I do within the criminal defense bar because the lawyers do really understand how hard this business is. It's hard. It's really, really hard.
Do you have any regrets about taking the case, given the death threats and the stuff that happened to your wife?
No. It's what I do. It's my job. It's my social conscience. The state is trying to kill somebody. My job is to not help the state kill, to force the state to do what it's required to do by law without cheating. That's the nature of the system.
How many hours a day did you work on the case?
I made it a point to at least swim some because I've learned that I need some outlet, some physical outlet. Some years ago I read a book by Kenneth Cooper that said if you get 20 minutes a day of exercise, four days a week, that's enough for physical health. So I did the best I could four days a week to get to a pool, but my stress level was so high that at 18 minutes, I started to get uptight that I wasn't working… No kidding. Every waking moment. Waking up in the middle of the night? Oh well…
Even the weekends?
There's no difference. The reality is, the days blend. There's work to do; you do the job. The criminal defense lawyer works that way. I've always thought it was easier to be a prosecutor because how hard it is to say, "And what happened next, officer? And what happened next?" And have the resources of the San Diego Police Dept. and the FBI and several crime laboratories and numerous criminalists all providing you the information.
Did you take a vacation after the verdict?
I did… But the metaphor for the vacation is a week into the vacation, I got a speeding ticket doing an 80 in a 50.
Do you think it's had a permanent effect?
Of course. My life will be different from now on. Not by choice. Because I can't go anywhere in San Diego anymore without people looking at me…
In the early days of the case, bus drivers would pull over and say literally, "You're doing a good job!" Now, I can't read the looks. That bothers me.
[After digressing a bit] …With regards to the criminal defense lawyer, although we ain't the most popular, when people really need us, whether it's yellow journalists or the president of the United States, or his brother Jeb, when their children were in trouble, who did they turn to? Did they turn to the prosecutors? They did not. They turned to the criminal defense bar. We are liberty's last champion. We really are the defenders of the Constitution. But for us, who knows? Mr. Butler might be dead. Mr. Corenevsky might be dead. But for us, Mr. Genzler might be locked up for life. But for us.
I read somewhere that you left Yom Kippur services for the verdict.
Around that same time Sports Illustrated ran an article about how Sandy Koufax didn't pitch on Yom Kippur. And this is causing me heartburn. For real! Because I don't work on Yom Kippur. I think it's a good idea to distance myself. I like the idea of a day of reflection that tradition allows. I like that idea. So, yes, I was in temple. But before I went to temple, I realized that there could be a verdict, and I talked to the rabbi, and I said, "This is my problem: Sandy Koufax didn't pitch on Yom Kippur, but there's liable to be a verdict, and if there's a verdict, it's a matter of life and death." And it really is a matter of life and death; what the lawyers do at the time of verdict is very, very important. The rabbi said okay; it's okay to go under those circumstances.
So at ten minutes to 12, I had my phone in my pocket on buzzer and at 10 to 12, it went off. I had to leave.
So are you friends with the rabbi?
The rabbi and I started at the same time. I told you one of my brothers died of AIDS. On Broadway, at about that time, there was a play called Falsettoland. In Falsettoland, a man and woman are married, the man is gay. He leaves the wife to be with his lover. They have a family now, but the male and his wife have a 13-year-old who's about to be bar mitzvahed…
My brother was dying of AIDS and in this play, called Falsettoland, the male's dying of AIDS, and he goes to the bar mitzvah. And they do the bar mitzvah. [His voice quiets, to barely above a whisper.] This is choking me up. Because in real life, my son's bar mitzvah got advanced six months.
So that your brother could see it?
Yeah. He died two days later… his friends rolled him up and helped him get dressed. I didn't even know how bad he was. But he said aliyah. So… I was close to the rabbi - she understood.
What did you feel when he said aliyah?
[He purses his lips, his eyes moisten and he points to his heart.] Right here…
[We both pause.]
See all this emotion? All this emotion that came out of me? It was also part of the case. The intensity of that experience, the intensity of that experience, the intensity of your peers and the criminal defense bar coming out and sticking knives in your back wasn't so good. It was very disheartening. And, as a result, the criminal defense bar organizations that I am a member of have taken positions against the "talking heads." Because they were ignorant, they didn't know the facts, they got the facts wrong, and I couldn't correct them. I could never correct them. The quote-unquote experts.
Do you think that whole talking heads thing that has arisen since O.J. Simpson is bad?
Sure it's bad, because it turns the courtroom into a daily baseball game. Or football game. "Whoh! The defense scored here! Whoh! The prosecution scored there!" That's not what it is. It's a process. It starts at a particular point and ends at another particular point, and the jurors are told not to form or express any opinions during the duration of the case until the case is finally submitted. Don't form or express any opinions? Think about that. Imagine yourself being told, "You're going to listen to this for seven months or five months but you can't form any opinions. And you can't let anybody talk to you about it. And if you do, you violate your oath."
How do you choose cases?
Umm, they choose me. I mean I will choose cases. Sometimes I choose cases that are I will say more "meaty" and substantive, but generally, I'm happy to defend anybody.
So if someone comes into your office, you say yes.
A portion of my practice I do appointed work for federal courts, where I don't pursue the same themes that I would if I had a private client. I think that's also part of an attorney's obligation to do pro bono work, meaning: You work, not necessarily to make a profit, but to return to the community some of what the community gives to the lawyer. So I do some of that.
So when you say to me, "When somebody comes in, I'll represent 'em," sometimes I will, sometimes I won't. It depends on the case, it depends on whether they can afford me, it depends on whether I represent someone else in the case.
How did you get hooked up with the Westerfield case?
I can't comment on that.
When you get clients, do you ask them if they're guilty?
[He pauses.] It depends.
I will say to a client, "I'm going to ask you some questions that are personal, anything you tell me is confidential. The truth of the matter is I don't care. I don't care if you're guilty or innocent, that's not my issue. What is my issue is my ability to prepare the case. I need to know the facts as accurate as I possibly can, whether or not that implicates you.
[He pauses]. "What happened?"
So it's whatever they choose to tell you.
Okay, but here's the problem, here's real life: first of all, in the context of law enforcement, there's such a thing as false confessions. Okay, you come in and tell me, I don't know whether you're telling the truth or not, and I say this to clients: "I don't know whether you're telling me the truth. I have to investigate, I cannot take you at face value, as a client, because my obligation is to defend you, and if I rest on your words, how do I know you got it right?" I need to know what other people have said…
In the Lucas case that I tried, there was a confession by a man named Johnnie Massengale, who was originally charged with the crime, but Massengale confessed to the crime and gave detail that was so great that law enforcement concluded that he had to have been in wherever, because he had detail only the killer could have known. So they prosecuted him. And ultimately dismissed the charges and prosecuted my client.
So merely because a person comes into my office and makes a statement doesn't make it true, and I'm not required to believe it, and I don't know what's true - I have to find out. And, I still don't know what's the absolute truth because I was never there, I wasn't there.
In traditional Jewish law, which was inquisitorial, not adversarial, confessions were actually inadmissible. They viewed that as the one protection for the accused, that you could not incriminate yourself (they were afraid of the possibility of coerced confessions).
Well, here, law enforcement is literally trained to disregard the Fifth Amendment rights of defendants and when they assert their right to remain silent, although for purposes of courtroom litigation the statements are inadmissible, law enforcement is trained to keep going, to disregard the request for counsel because they get the information, and if the defendant later testifies, they can use the after-acquired information against him. Track that? Hypothetically you're the defendant, you committed the crime. I'm the cop. You have the right to remain silent. You say okay. But you start telling me about your home, some crime was committed in your home. You say on second thought, I want a lawyer. I say okay, that's fine, but tell me what happened. And you continue to talk and you say to me again, I want a lawyer. And I say, okay, we'll get you a lawyer, but keep telling me, and you keep telling me…
What that does is it undermines the Fifth Amendment. It encourages law enforcement to take away our rights. And the truth of the matter is, the real truth of the matter is our Fourth Amendment rights to search and seizure, our privacy rights, are going up in smoke.
Characterize your style in the courtroom. How would you describe yourself?
Relentless.
Did you have any hesitation about taking the case knowing the kind of attention it would generate?
The truth is, nobody could have fantasized how this case blew up, I don't think…
When we would go to court, the cameras would run at us, literally run at us, and run backwards. Okay? And they would run backwards to the point they were running over each other and stumbling. At one point I turned to [Co-Counsel Robert] Boyce and I said, "You know, these guys are acting like children." And they put that on the air.
They also put on, "I'm not trying this case in the streets of San Diego, I'm trying this case in the courtroom." That was a smart thing for me to say. It was also true. It was, I think, the appropriate thing to say. Again, I don't have control over what they say, but if you read the newspaper and you listen, at some point they went through my trash. Now the press is coming to my house uninvited. What privacy?
When you retire, how do you want to be remembered?
Let me digress: You said, "When I retire." That r-word, I've given a great deal of thought to. I don't know what it means. I really don't know what it means. For me, it doesn't mean pulling up shop and sitting around watching television. For me, it means being able to be more selective in what cases I do. And I have certain skills that a great number of people don't, which is trying capital cases. I've considered doing pro bono work in the South, for instance, where the lawyering isn't very good. Or in Texas, where the Supreme Court allows people to be executed even though their lawyers are under the influence of alcohol and fell asleep at counsel table. In Texas, that's not enough to save a life.
How do you want to be remembered?
As a vigorous advocate. Honest, aggressive. A defender of the poor, the oppressed and the innocent. And maybe a person that kept law enforcement honest.*
[* Feldman called a few days later to amend his answer. His new response? "As a person who made a difference."]
Do you ever bring the case home with you? Do you talk about it with your kids?
The experience is so intense, the pressure leaks. Preparing for closing argument is extremely intense. To deliver three hours (five hours?) hopefully in coherence, to make an argument on life or death, to prepare to cross-examine police officers, to do an investigation on 50 or 60 witnesses, it's pretty daunting, time-consuming. So if the phone rings… Yes, to this extent, my family can't use a front line coming into the house sometimes but I have several incoming lines into the house because I need to be available. But I don't talk about it with my sons. No, no, no. Rarely. Rarely.
Separate from the question of a client's guilt or innocence, how do you deal sensitively with a situation where there's a set of parents where something horrible has happened to their kid? How do you deal with that, either on public level or on a personal/professional level?
There are some who will say my style is very aggressive, and I agree. I get that a lot… I do the best I can to show as much compassion as I possibly can. On the other hand, if the individual has done something that the district attorney has tendered as evidence and the judge has ruled as admissible and relevant evidence, then it's my professional obligation to address issues. So sensitive/not sensitive? It's the tone of voice, I suppose. Be as polite as possible. You ask excruciating questions because that's your job. Okay? I don't know going into a case who's telling the truth and who's not. And the truth of the matter is, I've learned over the years, justice is what the jury says. Guilt or innocence - no, guilt or not guilt is what the jury says. And the system has an obligation to prove every case beyond a reasonable doubt when they're trying to put you away. So the defense lawyers have an obligation to do what they can to make sure that doesn't happen, ethically, morally, legally.
Are there any cases in your past that you look back upon and say, "Even though the jury found for my client, it wasn't the right decision"?
No. It's always the right decision. It's the right decision because it means the prosecutor messed up, it means the police cheated, it means somebody messed something up. No, no. Justice is, in the abstract and then in reality, a process that's evaluated by independent citizens to determine what did or did not happen… The reality is, I know there are times when my work may result in the acquittal of a guilty person, that's not my issue, that's not my issue. My job is ensuring the system delivers, and frankly - I do the job.
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