Scott Marshall
Staff WriterSAN 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.
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
By Mareva Brown -- Bee Staff Writer - (Published August 12, 2002)
First there were the revelations by victims of Catholic priests that they had been molested for years.
Then came the February abduction of 7-year-old Danielle van Dam, taken from her pink-and-purple bedroom and murdered. A jury is deciding the fate of the neighbor accused in her death, who also is charged with possessing child pornography.
Last month, with the kidnapping and murder of 5-year-old Samantha Runnion by a suspected pedophile, parents began to panic.
California is home to more than 96,000 registered sex offenders, a list that grows by about 400 names per month. More than two-thirds have committed crimes against children.
For decades, researchers have tried to determine the unique ingredients that create a pedophile. And while there have been breakthroughs in treatment programs for those who want to reform, researchers are far from finding a way to prevent sexual abuse.
"Pedophilia is not a voluntary choice," said Dr. Fred Berlin, who founded the sexual disorders clinic at Johns Hopkins University and believes that, with treatment, pedophiles can stop offending. "People discover they're afflicted with this abnormality, and it's one of the most distressing discoveries they can make about themselves."
Psychiatrists diagnose pedophiles as adults primarily attracted to prepubescent children, typically 12 and younger.
Researchers and therapists make a clear distinction between pedophiles and incest molesters, who are attracted to women but abuse children because they are accessible and compliant.
Nonetheless, some pedophiles seek adult partners, even marry them, to gain access to their children, according to therapist Gerry Blasingame, who has treated more than 1,000 offenders, many of them at his New Directions to Hope facility in Redding.
In Sacramento, a man was arrested last week on charges he molested his fiancée's 12-year-old daughter and raped the 14-month-old daughter of a friend.
Most pedophiles follow a similar pattern.
Once a victim is selected -- because he or she either matches preferred physical characteristics or is available -- the typical pedophile will work his way into a position of trust. Most pedophiles prefer girls, but some molest boys and girls -- often based on who is available.
One pedophile brought Blasingame a picture of his ideal victim: a grinning, blond boy featured on a bag of Atta Boy dog food. The man, barely into his 20s, bragged of molesting 200 children of both sexes. Still, he had a distinct preference:
"It's the towheaded little boy who is 4 or 5 or 6 years old, and he's been playing -- his body smells like dust," recalled Blasingame. "And he likes his back washed."
He was so obsessed with children that Blasingame, whose treatment program is one of the state's most highly acclaimed, discharged him from therapy because he became so invigorated discussing his fantasies and offenses he would hyperventilate.
Part of a pedophile's excitement is figuring out how to get close to his victim. Once a relationship is established, the offender will gently coerce his victims into sexual acts, often making sex a game he plays with children.
One pedophile would ask children who had been presented with a safety program if they understood what they had been told. If they appeared sheepish or confused, he'd demonstrate: "If a guy touches you like this, you're supposed to say no. OK?" Blasingame said.
The youngsters' submission plays into a typical fantasy that children want to participate in their molestation, so most pedophiles are not likely to abduct victims who would be uncooperative, according to Berlin.
Criminologists long have cautioned parents that the risk from strangers is far less than that from the neighborhood priest or youth coach.
In reality, about 90 percent of sex crimes against children are committed by someone the victim knows, according to a variety of studies. A minute percentage involve abduction, and an even smaller proportion of those abducted are killed.
Annually, more than 10,000 sexual crimes against children are reported to California law enforcement officials, but there were just 57 child abductions by strangers in 2001. The figure hasn't changed appreciably since 1996.
When abductions by strangers do occur, most involve molestation, experts say.
Although it hasn't been said whether an 8-year-old was molested when she was kidnapped last week from West Sacramento, experts say the crime likely was sexually motivated. She was released two hours later in Knights Landing.
"These abductions and murders are horrible, but they're the exception rather than the rule," Berlin said. "It's like asking how many heterosexual men rape women -- a very tiny percentage."
Researchers like Berlin have devoted their lives to discovering what makes a pedophile act.
About half of the child-molesting population is made up of victims of child-sexual abuse. Many more grew up in violent homes.
Preliminary evidence indicates pedophilia can be associated with abnormalities in either brain cells or sex chromosomes, Berlin said. Some people with traumatic brain injuries later developed pedophilia.
"We've always looked at this as a moral issue," Berlin said. "The good people have these sexual attractions, and then there's everybody else. We need to say that science and medicine can teach us more."
Many studies have tried to decipher which types of therapy can control urges to molest children, and there is growing belief that specific treatments can help.
Those who work with offenders compare pedophilia to addictions to drugs, alcohol or gambling.
"You could think of it as a craving or you can think of it as a kind of uncontrollable impulse," said Dr. Baljit Atwal, a psychologist who treated the state's most serious juvenile sex offenders at the California Youth Authority before taking a job doing psychological evaluations of accused sex offenders for Sacramento County courts.
Atwal said pedophiles use both the fantasy and act of molestation to relieve everyday stresses. They have few coping mechanisms and often are socially inept, she said.
"For pedophiles, sex has become not only sexually gratifying, but gratifying of other needs -- power, intimacy, a sense of connection, a sense of belonging," she said. "A lot of these guys are really disconnected from their emotions."
That disconnection can let pedophiles delude themselves into believing they do no harm, therapists say.
One man, now 34, has molested children for two decades or more. As a child, he was uncomfortable socializing with his peers. He gravitated toward younger children, and eventually began molesting them. As an adult, he dated or befriended women with young children, eventually gained their confidence and spent long periods of time alone with the children. Over time, he molested more than 100 children.
"He'd say, 'Let's play a game,' " said Blasingame, his therapist. "Or he'd give them baths. He liked them really young, so he enjoyed changing diapers."
He was so obsessed with children that just watching cartoons could become arousing.
This man was caught when the mother of a kindergartner found him with her half-dressed daughter. With help, he began to acknowledge the damage he had done.
One of the most effective and widely used methods of treating sex offenders involves confronting the offender with the reality of this damage, often in group therapy with other offenders.
At Atascadero State Hospital, 302 rapists and child molesters are committed to California's Sexually Violent Predator program after serving their prison terms. The civil-commitment process requires that a judge find the offenders remain a significant menace.
Yet even there, with freedom awaiting them if they agree to participate in therapy, only 51 are engaged in treatment, said Tim Miller, who oversees one unit.
The numbers underscore the difficulty in getting offenders to commit to treatment. And relapse is a threat, especially for those who can launch into fantasy from simply seeing a child.
"Some of them describe the obsession as, 'No matter where I go, these images pop into my mind,' " said Blasingame. "Some of them know it's wrong, but they tell themselves they can't control it. And then tension builds in their life, and they think, 'I'll only do it once. I'll get a child who's too young to tell on me.'
"And between the time they think about doing it and they decide to do it, it can be just a matter of seconds."
Trial Aggravates Parents' Suffering-
Van Dam's remain in media spotlight......
By Tony Perry
SAN DIEGO -- The trial of David Westerfield in the kidnapping and murder of 7-year-old Danielle van Dam went to the jury Thursday amid another sign of the torment suffered by her parents.
Brenda van Dam fled the courtroom in tears after suddenly seeing an enlarged picture of her daughter's nude, mummified body, which had been taken during the autopsy. The picture was shown to the jury by Deputy Dist. Atty. Jeff Dusek during his closing argument. On Wednesday, Damon van Dam sought out the mother of defense attorney Steven Feldman during a recess and asked her sarcastically if she was proud of her son.
Several weeks ago Damon van Dam was temporarily banned from the courtroom after making threatening gestures toward Westerfield.
"Brenda and Damon are living in a pressure cooker that is unimaginable," said Susan Wintersteen, a neighbor who has accompanied them to court.
"They go home every night and cry and try to find the strength to come back to court to represent Danielle."
It is one of the oddities of this high-profile homicide case that the parents of the murder victim have been widely vilified and ridiculed.
Soon after Danielle's disappearance on Feb. 2, the local media began to report on a tantalizing angle to the story: adulterous sex in upscale suburbs.
One radio talk-show host has turned his show for six months into an open forum for callers to offer theories about the couple's parental skills, permissive sex lives, drug use and possible culpability in the murder of their daughter.
The current edition of San Diego Magazine--known for stories about local politics and the La Jolla social scene--has a story using the Van Dam case to discuss swapping of partners by married couples. "Van Dam and Beyond: San Diego's Surprising Swinger Scene," reads the tease on the cover.
A victim advocate, Marc Klaas, who has befriended the Van Dams, said he had never seen anything to match the treatment of Danielle's parents by the media and the defense attorney.
"These people have been so vilified, so demonized, it's horrible," said Klaas, who was pushed into activism when his daughter, Polly, was abducted and murdered in 1993.
"The centerpiece of the defense case has been to vilify the grieving parents."
Klaas and other friends of the Van Dams have particular contempt for talk-show host Rick Roberts and his "Court of Public Opinion" on KFMB-AM (760). Roberts was the first person in the local media to report on the couple's sex lives.
He provides a daily commentary on the trial and invites callers.
"It infuriates me that these people call in and pass judgment on this poor family when they can't fathom the pain of losing a child like this," said Roger Tso, a neighbor of the Van Dams and principal of a local elementary school.
Roberts makes no apologies. He believes that the Van Dams' lifestyle left them vulnerable to disreputable people who gained access to their home--a theme that Feldman has stressed.
The talk-show host notes that prosecutors argue that Westerfield was able to enter the home through a door left open to air out marijuana smoke.
"Everything you do in your life has a cost and in this case, the cost was unimaginable," he said.
Except during testimony by entomologists about the flies and other bugs found on Danielle's body, one or both of her parents have attended each day of the trial. A gag order imposed on all witnesses by Superior Court Judge William Mudd keeps them from talking to reporters, many of whom they know from the monthlong search for Danielle's body, during which they made daily pleas to the kidnapper.
"It's been very hard for them not to be able to tell their own stories to counteract all the rumors," Wintersteen said. At one point, a friend issued a news release on their behalf, denying that the family had purchased a new home and a new car.
Damon van Dam, 36, a software engineer who works for a firm under contract to telecommunications giant Qualcomm, has tried to get back to work but found it difficult. Brenda, 39, has put her job as a free-lance bookseller on hold.
Tso, whose daughter was Danielle's best friend said that whenever he has seen Brenda and Damon van Dam recently "they seem very angry but they're also in a state of disbelief."
The van Dams went with their sons--Dylan, 5, and Derrick, 10--to a cabin in Big Bear in hopes of finding some relief. During the later stages of the trial, Brenda's parents have come to San Diego, and a loyal coterie of neighbors has rallied.
As the couple left the courthouse one day, photographers jostled for position and Damon van Dam showed his annoyance.
"I would love not to be harassed," he snapped.
"It's all right, we'll make it," said his wife as she grasped his arm.