Trial may be just the beginning for Westerfield
Scott MarshallStaff Writer
SAN DIEGO ---- A two-month-long trial with dozens of witnesses and scores of exhibits may be just the beginning of David Westerfield's legal battle, which could last more than a decade and hold his life in the balance.
If jurors, who begin their third day of deliberations today, convict Westerfield of first-degree murder and special circumstance allegations, the stage will be set for a second phase of the trial, known as the penalty phase, to decide what punishment should be imposed.
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Jurors then would be asked to decide between life in prison without parole or a death sentence. If they recommend death, Superior Court Judge William Mudd would make the final decision between life and death.
Prosecutors are seeking to have Westerfield, a 50-year-old design engineer from Sabre Springs, become the 27th person from San Diego County sent to California's death row. He would join more than 600 inmates from across the state, five of them from North County, already awaiting execution.
Westerfield is accused of kidnapping and murdering 7-year-old Danielle van Dam in February. Prosecutors have argued Westerfield molested Danielle, then smothered her so forcefully that her front teeth were knocked out. Danielle's hair, blood and fingerprints were found in Westerfield's motor home, and her blood was on his jacket.
The defense has argued Westerfield could not have dumped Danielle's body in the East County location where it was found because he was already under 24-hour police surveillance.
Westerfield's attorneys also contend that he could not have entered the van Dam home and taken the girl without being caught or leaving any physical evidence in the house.
Attorneys usually start planning for the penalty phase of a case as soon as they know the death penalty is a possibility, whether the district attorney has announced his intentions to seek that punishment or not, legal experts said.
"I would imagine as soon as Mr. Westerfield was charged with special circumstances, at that point, the lawyers started thinking about circumstances in mitigation, which is what the penalty phase is all about," said Marjorie Cohn, an associate professor at the Thomas Jefferson School of Law who has served as a legal consultant during the Westerfield trial.
During the penalty phase of a trial, which begins immediately after a verdict is rendered, jurors have to weigh aggravating factors, such as the nature of the crime, against mitigating factors that may include no prior criminal record, to decide what punishment to impose, Cohn said.
"Anything can be considered," Cohn said.
Cohn said if a penalty phase occurs in Westerfield's case, she expects prosecutors to focus on the details of the crime and present testimony from Danielle's family about how hard life has been without her.
Meanwhile, Westerfield's attorneys would likely emphasize that he has no criminal record, had a good job, and has a drinking problem, Cohn said.
Deputy Public Defender Jack Campbell, a veteran North County defense attorney who helped defend death row inmate Rudolph Roybal at his 1992 trial, said Westerfield's attorneys also may argue a legal concept known as lingering doubt.
(Roybal was sentenced to death for the June 1989 stabbing death of 65-year-old Yvonne Weden in Oceanside.)
To reach the penalty phase, jurors first have to find a defendant guilty of first-degree murder and special circumstances beyond a reasonable doubt. But in the penalty phase, defense attorneys can argue that while enough evidence may have existed to convict, a lingering doubt about the defendant's guilt justifies sparing his life, Campbell said.
If a jury recommends a sentence of life in prison, a death sentence is no longer an option. However, if jurors recommend a death sentence, the judge on the case still has the option of imposing death or life in prison.
When a defendant is sentenced to death, the case automatically is appealed to the state Supreme Court, beginning a process that can take years.
Defendants also can ask the state Supreme Court for a writ of habeas corpus ordering a new trial or release from custody.
If the Supreme Court affirms the conviction and penalty, a defendant can appeal to the U.S. Supreme Court. If that appeal is rejected, a separate round of appeals through the federal courts can begin with a defendant seeking a federal writ of habeas corpus, leading to potential appeals to the federal appeals courts and the U.S. Supreme Court again.
Only the automatic appeal to the state Supreme Court is required by law, Cohn said.
"After that it's up to the defendant to decide if he wants to take it into federal court," Cohn said.
Since the death penalty was reinstated as a constitutional punishment in California in 1978, only 10 death row inmates have been executed. They spent an average of nearly 16 years on death row, California Department of Corrections' figures show.
George Cullins, 79, of Carlsbad, a staunch death-penalty supporter and victims' advocate whose daughter was murdered in 1984, said three inmates have been on death row for 23 years, and another 133 have been there for 18 years.
State prison statistics also show more than three times as many death row inmates have died of natural causes or suicide as have been executed.
"The death penalty actually doesn't exist here in California," Cullins said.
The man who killed Cullins' daughter was sentenced to death in 1991, but Friday was the deadline for his opening brief in his appeal to the state Supreme Court, Cullins said.
Cullins said that if the day comes that his daughter's killer is executed, he will not go to San Quentin to see it.
"I'll be out at the cemetery where Janette is, if they will let me in," Cullins said.
Cullins said his goal in advocating the death penalty and the rights of victims is "to try to reduce the number of fathers and mothers, aunts and uncles who face the same hurt our family suffered."
Cullins said statistics show the murder rate in California has dropped during periods when executions occurred more frequently.
Cohn, a death penalty opponent, said all of the studies she has seen indicate the death penalty is not a deterrent to murder.
Campbell said death penalty appeals take a long time because all of them go to the state Supreme Court and because the court records of death penalty cases are voluminous and must be correct. If the state spent more money on appellate lawyers, the process could be quickened, Campbell said.
The five North County people on Death Row include Susan Eubanks, a San Marcos mother convicted in 1997 of murdering her four children, and Brandon Wilson, a Wisconsin drifter who slashed the throat of 9-year-old Matthew Cecchi in an Oceanside Harbor restroom in 1998.
What the future holds for Westerfield is uncertain. And neither Campbell nor Cohn would predict the outcome.
"You never know what a jury is going to do," Cohn said.
Staff writer Scott Marshall at (760) 631-6623 or smarshall@nctimes.com.
8/12/02