Silence on part of defendant may be hard to ignore

San Diego Union Tribune ^ | 8/4/02 | Alex Roth

[Jaded]

During eight weeks of testimony in the David Westerfield trial, jurors have heard from grieving parents, cops, barflies, forensic analysts, bug experts and people who drive dune buggies around the desert wearing video cameras on their heads.

But there's one person whose silence has been conspicuous – Westerfield himself. Closing statements in the kidnap-murder trial are scheduled for this week, and it's now clear that Westerfield won't be testifying on his own behalf.

As a legal matter, it shouldn't make any difference. He has a constitutional right to remain silent, and the jury is forbidden by law from holding his silence against him.

But what about as a practical matter? Jurors are human, and most people might find it hard to understand why Westerfield, if he's innocent of killing 7-year-old Danielle van Dam, wouldn't demand the opportunity to say so on the witness stand.

In this respect, the Westerfield trial highlights one of the ironies of the criminal justice system: A defendant's decision to remain silent can be both totally meaningless and, at least arguably, one of the most telling details of all.

"It's the elephant in the middle of the room," said San Diego defense lawyer Dan Williams, who has been providing media commentary on the trial.

In interviews last week, several legal experts expressed opinions on whether Westerfield's decision to stay off the witness stand would have any effect on the verdict. The self-employed design engineer is accused of abducting and killing his Sabre Springs neighbor the first weekend in February.

Jurors will be given a standard instruction not to consider that Westerfield didn't take the stand. Jurors can usually be trusted to follow the law, the legal experts say.

Alameda County prosecutor Jim Anderson has tried 15 death penalty cases, and in every case but one the defendant opted not to testify. In general, jurors have always assured Anderson after their verdicts that they didn't hold the defendant's silence against him, he said.

"From my experience, they do follow the court's instructions and give it no weight whatsoever," he said.

Other experts predicted that Westerfield's silence would almost certainly have some effect on the jury, even if only on a subconscious level. Given the damning physical evidence, there are some questions only Westerfield himself can answer.

How did the girl's blood, hair and fingerprints get inside his motor home? Why did his jacket have her blood on it, and why did he take that jacket to a dry cleaner? Why didn't he bother to tell police about his trip to the cleaner with the bloodstained jacket on the morning of Feb. 4?

While it's unlikely that the jury will openly discuss Westerfield's silence during deliberations – that would be a direct violation of law – it might affect the jurors in ways they don't even realize.

"It's very difficult for them not to be affected by him not getting up there and answering some of these questions," said Williams, a former San Diego deputy district attorney. "It'll be down inside of them. It's got to be. It's just human nature."

Although the public might be tempted to infer guilt from silence, several defense lawyers said there are valid strategic reasons for keeping a client off the witness stand, even if he's innocent.

Many defense lawyers say they don't want a stupid or inarticulate client to testify, even if he's not guilty. The risk is too great that the client will be obliterated on cross-examination.

"Some people make terrible witnesses, including innocent defendants," said Vista criminal defense lawyer Peter Liss.

What's more, even if a defendant is innocent, he may have engaged in behavior that's unseemly, suspicious or simply doesn't make any sense. In those situations, a defendant might sink himself by trying to explain his conduct to the jury.

If Westerfield were to testify, for instance, he would have to explain the child pornography found on computer disks in his home office. Liss said he could imagine prosecutors spending an hour or two asking Westerfield about each and every image.

By taking the stand, Westerfield would give prosecutors the chance to "twist the focus of the case onto an unfavorable aspect of his personality," Liss said.

"Undue attention is paid to the child porn, and it diverts the jury's attention away from the truth," he added.

By testifying, a defendant may also give prosecutors the opportunity to present evidence that otherwise might not be admissible. For instance, when a defendant testifies, prosecutors can attack his credibility by telling the jury about certain criminal convictions in the defendant's background.

Westerfield's criminal record consists of a drunken-driving conviction. It's unclear whether he has anything else in his background that could have been used against him on the witness stand. The judge has held a number of hearings to discuss what evidence will be admitted in the case, but those hearings have been closed to the public.

Despite all the pitfalls in a defendant's testifying, some defense lawyers said they would have recommended that Westerfield take the stand. There's simply too much evidence that needs to be explained, they said.

"This isn't a stupid guy who can't speak for himself," Carlsbad criminal defense lawyer Dave Thompson said. "And we've got this mountain of physical evidence."

The risk, of course, is that Westerfield might offer such an unconvincing explanation that his credibility is destroyed.

"If the guy gets up there and can't explain away the physical evidence," Thompson said, "you now have eliminated all doubt."

[Yeti]

Pinging Yeti since you are praising his imaginings that those who think Westerfield is guilty are single parents and divorcees.

I wasn't trying to imply that. I was trying to point out how identification can work to influence one's first opinion on the matter, and cloud one's reason thereafter.

The post to which you refer was too long. Believe it or not, I chopped plenty out of it before I hit the post button. It probably should have been two or three seperate posts, divided by topic.

I think you know I didn't mean it as simplistically as what you said.

[spectre]

Good morning, Mr. Grumpy...

Closing arguments today..You'll be watching?

sw