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.