Defense Feldman: Danielle Van Dam Knew Her Abductor: Dusek, Still Talking...Westerfield Waiting

Union Trib ^ | August 8, 2002 | Steve Perez/Greg Magnus

[FresnoDA]

Lawyer says case against defendant is 'guesswork'

Late-night kidnap scenario 'illogical,' Feldman tells jury

 

By Alex Roth
UNION-TRIBUNE STAFF WRITER

August 8, 2002

After a night of drinking, a burly man like David Westerfield couldn't have sneaked into a strange house and kidnapped a girl from her bedroom in the dark without waking the child's parents, Westerfield's defense attorney argued yesterday.

"There's simply no way – there's no way – that someone unfamiliar with this residence could do this," attorney Steven Feldman told jurors on the second day of closing arguments in Westerfield's murder trial.

Waving his arms and shouting several times, Feldman called the prosecution's case "illogical" and said it was based on "guesswork" and "grasping." He urged the jury to be "objective in the face of the intensity of the emotion."

In the end, he said, there's too much reasonable doubt to convict Westerfield of kidnapping and killing 7-year-old Danielle van Dam on the first weekend of February.

"There's too many holes," Feldman told the jury. "There's no smoking gun. There's too many explanations. They can't put it together."

Before finishing his closing arguments at 2:50 p.m., Feldman spent the day attacking the prosecution's evidence piece by piece. His summation, which also included part of Tuesday, lasted about five hours.

He said his client, who lived two doors from the van Dams in Sabre Springs, had nothing in his background to suggest he was sexually attracted to young girls. Feldman noted that no trace of Westerfield was found anywhere in the van Dams' house.

And Feldman dismissed the notion that his client's circuitous journey in his motor home that weekend – Westerfield told police he drove 550 miles to the beach, the Imperial County desert and back to the beach – was anything out of the ordinary.

"The man told the cops he wasn't busy," Feldman said. "He didn't have work in his face that weekend."

By the end of the day, prosecutor Jeff Dusek, who gave closing arguments Tuesday, had begun his rebuttal of Feldman's summation. Dusek is expected to finish today, and it will be the final time either lawyer talks to the jury before the panel begins deliberating.

In his rebuttal, Dusek accused the defense of "falsehoods, misrepresentations, total distortions." He said Feldman was using "desperate" tactics.

On the probability of Westerfield's innocence, Dusek said there's a better chance of the San Diego Padres winning the World Series and the San Diego Chargers winning the Super Bowl in the same year.

Among other things, the defense's closing arguments put a spotlight on a ruling made by Superior Court Judge William Mudd last week.

Over the objection of the defense, the judge decided that the jury will have just one option on the issue of murder, and that is felony murder – in this case, murder during the course of a kidnapping.

Westerfield's attorneys wanted to give the jury the option of considering a second theory of premeditated murder. Such an option would presumably give the jury the leeway to conclude that Westerfield killed Danielle in her room, meaning he didn't kidnap her because she was already dead by the time she was taken from the house.

If there is no kidnapping, there is no special-circumstance conviction, and hence Westerfield would not be eligible for the death penalty.

Under Mudd's ruling, the jury must make one finding: Either Westerfield kidnapped and killed the second-grader or he didn't. The judge's assumption was that whoever killed the girl had to have kidnapped her first.

In light of the jury's options, Feldman told the jury yesterday to consider the possibility that Danielle was dead before she was taken from her room. He noted that the girl never screamed loudly enough to wake up either parent.

And if the child was killed in the bedroom, Feldman argued, the jury must acquit Westerfield on the murder count because there was no kidnapping – and thus no felony murder.

"If she was killed before he left that room, he's not guilty," Feldman told the jury. " ... That's what the law is. And you all promised to follow the law, regardless of what the law is."

Some legal experts said yesterday that Feldman's reasoning appears to be solid. Prosecutors, however, say the point is moot because there's absolutely no evidence that the girl was killed in her bedroom.

Feldman spent most of the day arguing that it was impossible for his client to have killed Danielle at all. Feldman cited testimony that Westerfield was drunk at Dad's Cafe & Steakhouse on the night the girl vanished. Feldman described the inside of the van Dams' house that night as "pitch-black."

He noted that Westerfield had never been invited inside the van Dams' house and couldn't have known where the girl's bedroom was. Prosecutors believe Westerfield probably sneaked into the house while Danielle's father was asleep in his bed and her mother was at Dad's partying with friends.

"Somehow, Dave Westerfield, all 6 feet 2 of him, sneaks into the bedroom of Danielle van Dam (and) doesn't make a sound," Feldman said.

He offered several explanations for the forensic evidence in the case. According to testimony, Danielle's blood, hair and fingerprints were found in Westerfield's motor home and her blood was found on a jacket he took to the dry cleaner the morning he returned from his weekend trip. Fibers consistent with the girl's bedroom carpeting were found in his motor home.

Also, hair consistent with hers was found in the bedroom of Westerfield's house, in his laundry and in a lint ball in his garage. Various fibers found on the girl's body were microscopically identical to fibers found in Westerfield's house, motor home and sport utility vehicle. Hair consistent with the van Dams' family dog was also found in the lint ball in his garage and in his motor home.

Feldman noted that Danielle, her mother and her brother had been inside Westerfield's house at least once before – several days before her disappearance, when they went to his house to sell Girl Scout cookies.

He also cited testimony that Danielle's mother, Brenda van Dam, danced with Westerfield at Dad's on the night her daughter disappeared. She went to the bar for a girls' night out with two friends.

Feldman suggested that some of the hairs and fibers from van Dam's daughter might have rubbed off on Westerfield when they danced together that night.

"It's a fundamental principle of science," he told the jury.

He also cited testimony that Westerfield sometimes parked his motor home at his house. Feldman suggested Westerfield left the vehicle unlocked and unsupervised and that Danielle might have sneaked inside to play at some point and left a bloodstain.

"Kids bleed all the time," Feldman said.

He also disputed the prosecution's theory of motive – that Westerfield is a pedophile whose collection of child pornography fed his desire to abduct and attack a little girl.

"What's the motive for a 50-year-old design engineer with no prior history to do anything at all like this?" Feldman said.

He said Westerfield, who is twice divorced and has two college-age children, "has no history of ever engaging in such behavior, period." He cited Westerfield's "numerous relationships with adult women," including a girlfriend who split up with him shortly before Danielle was abducted.

Of all the computer pornography found in Westerfield's house, Feldman argued that only a tiny percentage might qualify as child porn, and even those images were "ambiguous." He described the pornographic evidence as the prosecution's "desperate search for a motive."

"These were delivered to you to inflame you, to enrage you," Feldman said.

As part of the defense's constant refrain throughout the case, Feldman spent time focusing on Danielle's parents. The defense has suggested that the parents' behavior – they have admitted smoking marijuana and swapping sex partners with friends – attracted seedy characters who may have been responsible for the crime.

Feldman also said the testimony of a variety of insect experts proves Westerfield couldn't have committed the crime. The defense says the insects found on the girl's nude body, which was found Feb. 27 in a rural area east of El Cajon, show that the body was dumped after Westerfield came under constant police surveillance.

Prosecutors say the insect evidence doesn't exclude Westerfield because the time estimates are too varied and imprecise.

In the beginning of his rebuttal, Dusek accused the defense of "almost encouraging a hung jury" by urging each juror to stick fast to his or her opinions during deliberations.

Dusek also dismissed the argument that Westerfield lacked the ability to sneak in and out of the van Dams' house without waking the parents. Dusek noted that someone clearly succeeded in kidnapping the little girl, who was gone by the time the parents woke up on the morning of Feb. 2.

"We have the reality that somebody got into that room and got her out," Dusek said.

[spectre]

I missed that last post about the "world at large" not thinking this represents the thinking of the majority of Free Republic.

"Speak for yourself, yaya..."

sw

[Southflanknorthpawsis]

Ooooh....that picture of Dusek. Doesn't he look as if he has a stocking pulled over his face?

[Lauratealeaf]

Excellent post!

[Southflanknorthpawsis]

No kidding. I guess she sees herself as performing some kind of civic duty. What misguided self-flattery !!!!!

And just what percentage of the world is tuning into Free Republic to learn what trial observers think? Sheeeesh !!!

[Lanza]

Most of us have come to realize that the Jury is probably going to find him guilty Spec you really think? I think at least a hung jury. I say Guilty on the child-porn (that covers anyone worried about backlash from the Runion thing, he will still do time), and there are going to be a few that won't vote guilty on the murder/kidnapping.

[YaYa123]

I'm not certain at all that a "case of guilty beyond a reasonable doubt has been made here." I don't think I've commented at all on Dusek's performance or his presentation of evidence. [For the record, I was unimpressed.]

All I'm certain of is, I think Westerfield did it, and I hope the jury agrees. As for the petty insults coming my way because of that opinion? Not a problem.

[FresnoDA]

Something else which makes Refugees go...hhhhmmmmmm....

From Jameson Board....

03-15-2002

POSTED: 03-15-02 by Douglas H. Pierce- Millennium Children's Fund
mail@mcfworld.org

INVITATION came after I asked parents if I could bring something of child's
in front of press pictures, toys, whatever to make her ALIVE (poor choice of
words).

Brenda: "Douglas how about something she just wrote to her dad"

Hidden in (Danielle's) nightstand.

The "Daddy forgive me note" was handed to Douglas H Pierce. I read the torn 2 sided note,
(That I NOW believe was from Journal/DIARY) AND WAS SHOCKED COULD NOT LOOK
AT (Damon's) FACE.

I stuttered and said is there something else?
Brenda: "Douglas would you like to see her room"

I could only say ok.... Douglas H Pierce followed Brenda and walked 18' (Damon) stayed behind in
MASTER bedroom.

Brenda's sister came up stairwell that is closest to the children's rooms', she was
behind me Brenda steps over dog gate in front of child's room and she enters room
like nothing at all NO HUMAN EMOTION. Douglas H Pierce stands in front of gate looking
in room.  Brenda: "it's OK Douglas come on in the POLICE are done in here just
don't touch anything".

Douglas H Pierce steps over gate enters at least 6-7' inside,
Brenda is moving things around on shelf and picks up a SILVER JOURNAL
Brenda asks Douglas H Pierce" how about her Journal and the frog she slept with?" Douglas H Pierce said
....I start backing out of room I HAVE A HORRIBLE DARK DARK DARK feeling
come over me. I became emotional, stuttered and stumbling over dog gate
going to stair case. Now all three of us (not Damon) are standing at top of
stairs Brenda, Douglas H Pierce, Brenda's sister, Brenda starts to open Journal/Diary.

(NO FURTHER COMMENT ON READINGS).

Damon comes from MASTER bedroom and slides past us and goes down stairwell.

NOW ARE THEY READY TO MEET ME AGAIN? LET'S PLAY THE GAME "LIE DETECTOR",
who will FAIL again. Not Douglas H Pierce.

If Douglas H Pierce is wrong about the bedroom than why did a witness say "I know
something bad happened in her room".

Hmmm ... Please tell us

---

The original comments by Douglas Pierce were made after he visited the VD household, and spent over 8 hours inside of the VD house.

If you are not  up to speed on this, listen to the John and Ken show interview with the VD's......very strange.

van Dam neighborhood	02/15/02	16:13
Excerpts from the live broadcast on the street where Danielle van Dam was abducted 2 weeks earlier. John is accosted by members of the Psychic Friends Network, David Westerfield leads undercover cops to fried chicken, then slams the door in John and Ken’s face. Neither Mr. Westerfield nor Mr. Kobylt were arrested over the course of the broadcast.

Brenda and Damon van Dam	02/07/02	11:05
Brenda and Damon van Dam join the John & Ken show via telephone to discuss their efforts to find their missing 7-year-old daughter.

 

[BARLF]

I think LE had cleared vD's and friends 24 hours after investigation started. Would have to hunt for the article that gives this info but if need be I will try to find it.

[spectre]

Thanks to you..FRES!

Do they still teach

"Thou shalt not commit Adultery"

AND "Thou shalt not bear false witness against thy neighbor"

AND "Thou shalt not covet thy neighbor's wife"

in California?

sw

[Jaded]

You know, well obviously you don't, people here have not always been so sure that David wasn't involved. Even I, yes I, had concerns about complicity.

While it may suit you to discount us as the Stealth Ninja Freedom Fighters or Save Dave Gang, remember a number of us have been here since the begining, all the way through. We have read all of the articles, poured over transcripts and listened to interviews. So our opinions are not misinformed. Even some of the posters who came along later, researched diligently, so they would be up to speed. Alot of posters have done an admirable job of organizing the evidence and doing running transcripts.

The SNFF was really borne out of questions raised by the parents and LE. Even more questions have been raised by the processing of evidence. Makes one wonder what happens in cases that don't hit the radar?

[FresnoDA]

Yep, they still do spec...off to the Fresno morning commute...I will be back in time for Dusek's final act....blahhhh!!! Don't let the TJ's bite ya..hee hee...

FDA/frr

[Doc Savage]

YaYa this.

David Westerfield lies awake at night dreaming of that pleasurable moment when he will finally have his way with the woman who has so affected him, so driven him wild, so set afire his libido,...8 year old Danielle van Dam.

Of course he hasn't done this kind of thing before, but boy oh boy, he just can't wait to get her alone in his bed. Oh the things he's going to do to her. Of course actual vaginal penetration and copulation aren't possible, but all those "other" possibilities are just driving poor Dave wild with desire.

Breasts? Who needs 'em! No, Dave has been waiting his chance driven wild to the point of infinite ecstasy by torrid child pornography he's downloaded.

But enough dreaming for Dave, tonight he'd better head back to Dad's and at least make it look like he likes older women. Of course that's only a front, an alibi, an excuse for the really dastardly deed he's about to commit.

So Dave starts to plan. Being an intelligent fellow (albeit driven wild by the nubile flesh of this young tart) he decides that his best plan ever is to secretly sneak into the van Dam house in the middle of the night unnoticed and make off with her. Dave decides this is the best plan ever even though he knows instinctively that he's never been in their house, doesn't know his way around in the dark, doesn't know where her bedroom is or even if she's there, or that he might be discovered by the family and have to kill them all to protect his identity.

Yes indeed. This is the best plan ever!

Of course Dave forgets momentarily that being in his fifties his prostate is going to send send him an urgent message to urinate especially after a night of pretty heavy drinking. But no matter, he'll just hide in a closet or somewhere until he's ready to make his move. He'll just hold it!

Dave, being an incredible dumbass takes her back to his place for hot sex, forgetting for the moment that eventually the cops are gonna come knocking sometime. No matter, he'll clean everything up. Let's see, hair, fibers, blood, saliva, semen, urine, no problem. A little Fantastic here and there and presto, clean again.

Hey Dave, haven't you forgotten something??? You've killed her, but now you've got a body on your hands!!! Time to get rid of the corpus delicti.

Poor Dave, his brain comes unglued. He drives around with her body for hours trying to figure out what to do. Then he has a brilliant revelation!! He'll just dump her out on a roadside where she'll be found and he can leave an excellent crime scene for the police. That's it!! He'll challenge the police to catch him!!

But then he thinks maybe I should just bury her in the desert where she'll never be found, or maybe I should drop her the ocean, or dismember her, or immolate her so she can't be identified. Naw, let's just dump her and go home so he can download some more porn!!

What a shlub!!

I say roast him in hot oil, the Rack,..the Rack., the ironmaiden, arrows at fifty paces, drawn and quartered in the public square, hanging, shooting, electrocution, the needle, a smart bomb,...but of course these are all too good for him.

But then again,...what if he really didn't do it after all???

[Lauratealeaf]

I WAS born into the Military..married a Military man, spent my entire life moving from one country to the next...one town to the other. But I never was taught to believe "if the bastard is brought to trial, then he must be guilty"...I only have the Army and Air Force as models. I must have missed something?

While most of the people that I have met in the military are law and order people they also have an appreciation of our justice system and the concepts of trial by jury and innocent until proven guilty. This appreciation comes many times from living all over the world and seeing how other countries/governments treat their citizens. Some military wives, however, have not impressed me with their abilities to discern or appreciate anything other than the great goodies they can buy or collect. In other words, many military wives, just like the general population are clueless, brainless, soccor mom types. While YaYa at least is a freeper she is fooling herself if she thinks she is an independent thinker.

[Jaded]

Seems unlikely Mudd would do this unless they came back not guilty. His bias is showing, badly. Blue Screen of Death said that Mudd's hat should be Black Robe of Death. Truer words have not been spoken, IMO.

[spectre]

It is with a heavy heart, that I have come to see the scope of the media's influence in this trial.

It appears that Judge Mudd wants the Jury to be influenced by the bias toward David Westerfield. The Jury is tainted, and Mudd and Dusek are not objecting to it.

Yes, a hung Jury would be better than a conviction. We need more time, to dig into what REALLY went on that night, with the Van Dams and company. DW will stay in jail no matter what...but at least not on Death Row.

sw

[YaYa123]

Damn Doc! Feldman should have had you write his closing. That was more thought-provoking than anything else I've read in defense of Westerfield.

[Jaded]

What the h*ll was Dusek doing holding rope in court and objecting to Feldman's use of the expression "pull the plug".

Breathe deep, slow deep breath....

[Southflanknorthpawsis]

Live and learn, YaYa. Petty insults begets petty insults. Unless I'm confused, it was you who came in here as if you were on some perch looking down.

Now......it's other people insulting???? I see. No wonder you can't comprehend what so many of us believe and why. Apparently you can't even understand your own actions.

[Jaded]

Fine, then explain in reasonable terms how he did it.

What times in and out of the house.
How he killed her
When
Where
How he dumped the body and when
Why is there no evidence of him in the house
Why is there no more or direct evidence of her in the rv if she was raped and murdered.

If you're going with Dusek's the-roy, you need to fill in those pesky little holes.

Quit acting like you're being attacked because people disagree with you.