Judge Mudd Refuses Sequester Plea: Westerfield Jury Verdict In Sep? (Aug. 16th Verdict Watch)

Union Trib ^ | August 15, 2002 | Jeff Dillion/Steve Perez

[FresnoDA]

Judge denies defense motion to sequester jury

By Jeff Dillon and Steve Perez
SIGNONSANDIEGO

August 15, 2002

Arguing that media coverage was creating a "lynch mob mentality" that could pressure jurors to return a guilty verdict, the defense attorney for David Westerfield today asked the judge yet again to sequester the jury.

While the jury completed its first week of deliberations without a verdict, Superior Court Judge William Mudd denied the request and a related motion to "pull the plug" on television and radio coverage of the courtroom proceedings, but agreed to set aside a private room for jurors to take breaks. Defense attorney Steven Feldman had argued that reports suggested jurors felt like they were under siege, unable to leave their deliberating room, go to lunch or walk home without being watched or followed.

"We have no assurance that they are not be intimidated ... by the presence of the media," Feldman told Mudd during a morning hearing. "We can think of only one fair resolution to that: Get the jury out of harm's way."

 

'Broccoli heads'

He cited an incident earlier in the week in which radio talk show hosts from KFI-AM 640 in Los Angeles broadcast from outside the courthouse, waving stalks of broccoli around and reportedly calling jurors "broccoli heads" for being unable to return a quick guilty verdict.

Westerfield, 50, could face the death penalty if convicted of kidnapping 7-year-old Danielle van Dam from her family's Sabre Springs home on Feb. 2 and killing her. Jurors are in their sixth day of deliberations.

Lead prosecutor Jeff Dusek disagreed with Feldman's interpretations of the jury's complaints.

"Whether or not any guilty verdict in this case would be based on a siege mentality or the meida I think is pure speculation and utterly false in this case," Dusek said.

What the jurors had complained about was being watched all the time, he said.

"That hardly equates to being under siege," he said.

 

Trust in the jury

Mudd dismissed most of Feldman's concerns, saying that the jurors had only asked a bailiff to keep reporters a little bit farther away, though an alternate juror reported that he or she had been followed to his car.

Media coverage has diminished since the jurors began deliberating, the judge said.

"The synopsis programs on the two local TV networks are not in place," he said. "The talking heads are doing nothing but speculating about what the jury may or may not be thinking."

Mudd said there were no signs that jurors were being harassed by the public, especially since their names and faces haven't been publicized.

"We've all sat here and picked this jury, know their makeup and know their dedication to this cause," Mudd said. "I would prefer to think that any verdict they make in this case would be based upon the evidence."

Sequestering the jury also wouldn't protect them from any public reaction to the verdict, Mudd said.

 

'The activities of a few'

"The tragedy is, the majority of the people in this courtroom are abiding by the court's orders and working very hard to insure they, meaning the media, do not cause something to occur that is going to cause a mistrial," Mudd said. "Not all of them feel that way as is very apparent with the activities of a few."

Mudd took aim at two radio program hosts from Los Angeles who he previously described as "idiots."

"I suppose it's entertainment out of LA. I hope it stays in LA," he said. "The shows those two gentlemen put on made the court incredulous as to what they were attempting to do."

Mudd also announced:

 

• The jury asked to review the recall testimony of prosecution witness Jennifer Shen, a criminalist with the San Diego Police Department.

  On July 9, Shen's testimony interrupted presentation of defense witnesses. Shen, a San Diego police criminalist, testified about re-examining a group of fibers she had collected from Westerfield's 4Runner in February.

  The orange acrylic fibers, found in various places inside the SUV, were the same color and fabric as a fiber tangled in a plastic necklace that Danielle was wearing when authorities found her body in a hollow off Dehesa Road, Shen testified at the time.

  All the fibers looked identical under a microscope and appeared to have the same chemical makeup when tested using infrared technology, she said.

  Shen said the fibers seem "most likely to have come from something that was very loosely knit," such as a sweater or blanket.

   

• Reporters will no longer be allowed to ask questions of the court's bailiff and clerk.

  "You folks are going to deal with my PR person. You're going to leave my bailiff and my clerk alone," Mudd told reporters in the courtroom. "One statement leads to 60 questions that they're not going to answer and neither am I."

  Mudd decided to turn the daily updates over to the court's public information officer after deciding that an informal system set up to have a bailiff or court clerk provide updates had failed.

  "There was a simple note that they started at 9, they left at 4 left you chomping on bit to get copies," He said. "You're welcome to them, they'll be available as soon as we gett the minute order."

  Reporters and members of the public will not be informed immediately about notes passed by the jury, Mudd said. The judge said he had procedure to follow, that includes notifying the attorneys involved in the case about the note and determining the appropriate response.

  "This is a capital case and you go by steps," Mudd said.

   

[Jaded]

Two interesting things from this snippet of Watkin's testimony. 1) He's talking about the videos, and that they have text. 2) the beastiality came from Neal's room.
(Reformatted for easier reading)


By Mr. Clarke:
Q perhaps you can keep them flat, Mr. Watkins.

A sorry.

Q do they depict the tying and binding of a child?

A yes.

Q and the sexual assault of that child?

A yes, sir.

Q do they also include text?

A yes, they do.

Q what is text?

A text is just words that are superimposed on top of
the -- of each frame or each graphic image.

Q does there appear to be text with regard to what,
all of the images in that particular exhibit, some of
them, what?

A each image has some text on it.

Q okay.
Just generally what is the type of text that's
contained on them?

A generally speaking it -- the -- it depicts a girl being
surprised by somebody behind them. Another one
depicts someone talking about a girl who -- that had
a bump on their head and how they wanted to do
sexual acts on them. Some of the words we're
talking about what are you doing, what are you
going to do.

Q okay.
Do they generally depict what one person is saying
in the anime' and then what the other person is
saying as well?

A yes, sir.

Q including words of the child?

A yes.

Q does that exhibit consist of just one series or more
than one series?

A it consists of two series.

Q is there any differences between the two series?

A they are different, but they are -- they are
different series, but they are similar in theme.
Mr. Clarke: your honor, i've also previously marked
and described for the record a series of additional
pages marked exhibit 148.
By Mr. Clarke:

Q and if I can show those to you, --

Mr. Feldman: I'm sorry. Is this 148?

The court: 148.

By Mr. Clarke:
Q Mr. Watkins, do you recognize that exhibit?

A yes, I do.

Q where was it obtained from?

A this was obtained from the computer evidence
from the Westerfield residence. I believe this came
from the computer in the bedroom.

Q all right.
What does it depict?

A it depicts several digital photographs of
bestiality.

Q when you use the term bestiality, what do you
mean?

A bestiality is a term to depict pictures or the act of
a person having sexual acts with animals.

[cyncooper]

Your first excerpt is regarding the anime, not the videos. From your excerpt:

Q okay. Do they generally depict what one person is saying in the anime' and then what the other person is saying as well?

[cyncooper]

For some reason I thought the belief was he did not say he danced with her...

It was not said that he *never* said he danced with her, it was said that he did not say it during the Keene interview and the Redden interview. You can check the media interview that was also submitted in evidence to see if he says he danced with Brenda on there. He *may* have added that story later.

[Jaded]

Glitter- no kidding. Gets every where and stays... forever. Was it glitter or sequins?

[clearvision]

Just to show how reliable media reports are/were. This was from back in Mar. from ABC in San Diego:

In addition, traces of DNA found on one of Danielle van Dam's garment in her room matched Westerfield's, police Chief David Bejarano said. He called the genetic evidence a "very, very strong link" between the defendant and the missing girl.

[Jaded]

They are talking about screen shots taken from the attack videos.

7 Q. NOW, SIR, I'D LIKE TO DIRECT YOUR ATTENTION TO

8 SCREEN PRINTS 127 AND 128. PLEASE TELL THE JURY WHAT IS 127 AND

9 128?

10 A. 127 IS THE SCREEN CAPTURE OF THE REPORT ITSELF.

11 THIS -- THE "ATTACK" VIDEO OR -- WE ARE CALLING THEM VIDEOS, THE

12 PROPER FILE EXTENSION IS MPG AND THAT STANDS FOR COMPUTER
VIDEO.

13 THERE WERE -- I'VE FORGOTTEN THE EXACT NUMBER. THERE WERE
MORE

14 THAN FOUR, FIVE OR SIX. NOT ALL OF THEM WERE VIEWABLE?

15 Q. YES.

16 A. THEY WERE DOWNLOADED OR THEIR FILE CREATION DATES

17 SHOW 8/5/01 AT 3:42 P.M. IN THE AFTERNOON WITH THE LAST ACCESS

18 DATE OF 11/18/01.

19 Q. ALL RIGHT.

20 A. AND THEN SCREEN PRINT 127, WHAT I ATTEMPTED TO DO

21 THEN, ONCE I KNEW THAT THESE MPEGS HAD BEEN DOWNLOADED ON
8/5/01

22 WAS ATTEMPT TO DETERMINE IF I COULD FIND WHO THE COMPUTER
USER

23 WAS ON 8/5/01 AT 3:42 IN THE AFTERNOON.

24 Q. WERE YOU ABLE TO DO SO?

25 A. SCREEN PRINT 128 SHOWS -- THE ONLY THING THAT I WAS

26 ABLE TO FIND THAT WAS STILL AVAILABLE THAT OFFERED ANY KIND
OF

27 CLUE TO THAT AT ALL, AND THIS IS A -- IT'S AN ANIME'. ACTUALLY,

28 WHAT YOU'RE LOOKING AT IN SCREEN PRINT 128 IS A GIF, IMAGE FILE. .
7089

1 IT IS AN ANIME' IMAGE. THE FILE CREATED DATE IS 8/5/01. THE

2 TIME IS 1:34:36 P.M.

3 Q. WERE YOU ABLE TO LINK D. N. WEST TO JOINING ANY

4 ANIME' SITE?

5 A. YES.

6 Q. CONSISTENT WITH THE ANIME' SITE DEPICTED IN 128?

7 MR. CLARKE: OBJECTION, VAGUE.

8 THE COURT: SUSTAINED.

9

10 BY MR. FELDMAN:

11 Q. WERE YOU ABLE TO LINK D. N. WEST TO ANY ANIME' SITE

12 WHICH WAS DEPICTED OR MAY BE DEPICTED IN 128, SCREEN NAME 128?

13 MR. CLARKE: SAME OBJECTION.

14 THE COURT: SUSTAINED.

15

16 BY MR. FELDMAN:

17 Q. WHAT, IF ANY, EFFORTS DID YOU MAKE IN AN EFFORT TO

18 LINK WHETHER OR NOT D. N. WEST WAS THE DOWNLOADER OF THE

19 "ATTACK" VIDEO?

20 MR. DUSEK: OBJECTION, ASSUMES FACTS NOT IN EVIDENCE.

21 THE COURT: OVERRULED.

22 WHAT STEPS DID YOU TAKE?

23 THE WITNESS: I'M SORRY. COULD YOU ASK AGAIN?

24

25 BY MR. FELDMAN:

26 Q. WHAT STEPS, IF ANY, DID YOU TAKE TO ATTEMPT TO

27 IDENTIFY WHETHER OR NOT D. N. WEST WAS THE SOURCE OF THE
ATTACK

28 MPEG TO WHICH WE'VE MADE REFERENCE IN SCREEN PRINT 127? . 7090

1 A. AS I STATED, WHAT I ATTEMPTED TO DO WAS FIND OUT IF

1 THERE WERE ANY OTHER ACCESSES ON 8/5/01 IN THE AFTERNOON, IN THE

1 EARLY AFTERNOON HOURS OF 8/5/01 THAT WOULD HELP DETERMINE
WHO

4 WAS ON THE COMPUTER AT THE TIME.

5 I HAD FOUND NUMEROUS INSTANCES, AND WE'VE DISCUSSED

6 A FEW OF THEM, THAT INDICATED THAT IT WAS D. N. WEST WHO HAD
AN

7 INTEREST IN ANIME' PORNOGRAPHY. AND AT 8/5/01 AT 1:34 IN THE

8 AFTERNOON I FOUND THIS FILE, WHICH IS AN ANIME' PORNOGRAPHIC

9 FILE.

The attack videos are anime.

[Jrabbit]

Thank you, Jaded. They were Anime AND they belonged to Neal.

[Rheo]

I take that to read the attack videos were downloaded on 8/5/01....he then tried to determine who might have done the downloading....anime pornography was also downloaded on 8/5/01....which is Neil.

Not sure it answers the question if the attack video was anime...but it sure sounds like Neil was the one who downloaded.

[Jaded]

Whatever. The point is clear that DW didn't download it anyway, no matter how painful that is for others to accept. Also Neal down loaded the beastiality. Wonder why he'd let his father hang for what he did?

[juzcuz]

I wonder how they, the VD's, can sleep in that house at night. I mean if it were me, and I thought my daughter was brutally raped and murdered in my home, I don't think I could sleep at night. I'd be thinking about it all the time.

Also, the two little boys - I don't know how those kids can sleep at night, for fear that it could happen to them. I've thinking about those two boys, what must be going through those little minds.

Well I guess probably Brenda makes sure they all get their daily dose of Xanax or Something .... don't ya think????

[Spunky]

cyncooper, I think Feldman was really wound up in his closing statement and some of the things he said were disjointed. Every Google search I have done on the Westerfield rape videos brings up animated rape video nothing about a real rape scene. The below article says the animated child rape was his motive for the murder. If there was a real person rape video than I would say the person definitly was over 18. because it is this animation that they think was his motive.

SAN DIEGO ---- Prosecutors in the case of accused child murderer David Westerfield believe Danielle van Dam was molested before she was killed and they said in court documents released Monday that Westerfield's computer animation of a sexual assault on a young, pig-tailed girl showed his motive for the crime. "The animation comes as close to a game plan as we will ever see," prosecutors said in court papers made public Monday. However, the defense team is asking the judge to keep those images and others taken from Westerfield's home computer out of the trial, saying there is nothing to link the material to Danielle's murder. "Any assertion that the cartoons, pornographic material and photos were related to the murder and kidnapping of Danielle van Dam is entirely speculative and theoretical,"

[Rheo]

I can't figure out why Neil would do that...embarrassment is one thing..watching your dad potentially hang is another.

[JudyB1938]

But ... But ... But ..

"This is a great little activity for the smaller children in the household,"

[juzcuz]

pleeeezz egggs-plain....

[dread78645]

I take that to read the attack videos were downloaded on 8/5/01

If it's a strict every other weekend visitation, that would have been a weekend at dad's (Dave Westerfield, not the bar).

[JudyB1938]

Okay, you people with faint hearts. DON'T READ THIS POST. IT IS FILLED WITH FILTH & DEGRADATION.

I am copying and pasting it here, because things have a way of disappearing off the web. It's from the link Bluebird gave us. She said to pay attention to Feb 2. Yeah, look at the age of the FEMALE child to be used!

Fres, I gotta apologize to you. I thought you were a little off the deep end at first. But these gals have been digging really deep and substantiating all you ever said!

***

Date	Celebration	Type	Activity	Age
Jan. 7	St.Winebald	Blood	Animal and/or Human Sacrifice & Dismemberment	15-13 (Male if human)
Jan 17	Satanic Revels	Sexual	Oral, Anal, Viginal	7-17 female
Jan 20-27	Abduction,Ceremonial Preparation and Holding, of Victim for Grand Climax	Sexual Blood	Oral, Anal, viginal Human Sacrifice	Female or Child
Feb 2	Candlemas (sabbat Festival)Satanic Revels	Blood and Sexual	Animal or Human Oral, Anal, Vaginal	7-17 female
Feb. 25	St. Walpurgis Day	Blood	Communion of blood and dismemberment	Animal
March 1	St. Eichatadt	Blood	Drinking of human blood for strength and homage to demons	Any age Male of Female
March 21 day varies anually	Spring Equinox (Sabbat Festival) (Major fertility Sabbath)	Orgies	Oral, Anal, Vaginal	Any age Male Female human or animal
April 17	Good Friday Day of Passion Death of Christ	Blood	Human Sacrifice	Male
April	Easter Eve Day	Blood	Human Sacrfice	Male of Female
April 21-25	Sacrifical preparation Abduction, holding, and ceremonial preparation of individual for sacrifice	N/A	N/A	N/A
April 26	Grand Climax	Da Meur	Oral, Anal, Vaginal	Female 1-25
April 30	Walpurgisnacht Roodmas Day	Blood	Animal and/or Human Sacrifice	Any Age
May 1	Beltane Walpurgis Day May Day	Druid Fire Festival Coven Initiations	N/A	N/A
June 21 date varies annually	Summer Solstice Feast Day	Orgies	Oral, Anal, Vaginal Animal and or Human sacrufice	Any age Male or Female Human or Animal
July 1	Demon Revels	Blood	Druids Sexual association with demons	Any age Female
July 20-26	Sacrifical preparation Abduction, holding, and ceremonial preparation of individual for sacrifice	N/A	N/A	N/A
July 27	Grand Climax (5 weeks 1 day after the Summer Solstice)	Da Meur	Oral, Anal, Vaginal Human Sacrifice	Female child or adult
August 1	Lammas Day (Sabbat Festival)	Blood	Animal and/or Human Sacrifice	N/A
August 3	Satanic Revels	Sexual	Oral, Anal, Vaginal	Female 7-17
Sept. 7	Marriage to Satan	Sexual	Sacrifice Dismemberment	Female Infant -21
Sept 30	Midnight Host	Blood	Dismemberment Hands Removed Hand of Glory	Female Infant-21
Sept 23	Fall Ezuinox Feast Day	Orgies	Oral, Anal, Vaginal	Any Age
Preparation for all Hallows Eve, Samhain (Halloween)	Abduction, holding, and ceremonial preparation of individual for sacrifice	N/A	N/A	N/A
Oct 28	Satanist High Holy Day (Related to Halloween)	Blood	Human Sacrifice	N/A
Oct 29	Satanist High Holy Day (Related to Halloween)	Blood	Human Sacrifice	N/A
Oct 30	Satanist High Holy Day (Related to Halloween)	Blood	Human Sacrifices	N/A
Oct 31	All Hallows Eve	Blood and Sexual	Sexual Climax Association with demons Animal and/or Human Sacrifice	Any Age Male or Female
Nov. 1	Satanist High Holy Day (Related to Halloween)	Blood	Human Sacrificed	N/A
Nov. 4	Satanic Revels	Sexual	Oral, Anal, Vaginal	Female 7-17
Dec 22	Winter Solstice (Sabbat Festival)	Orgies	Oral, Anal, Vaginal	Any age Male or Female Human or Animal
Dec 24	Demon Revels	Da Meur	High Grand Climax Animal and/or Human Sacrifice	Any Age Male or Female

[Jaded]

There seem to be a couple of theories on that one. One of them being, he still has to face his mother. Originally he stated when he was interviewed in front of her that he didn't surf porn or download it. I don't think at that time he even thought that the investigation into his father would amount to anything. Just my 2 cents though.

Others think he was intimidated by Dusek. That I think has more merit. He was 18 when this started. A definite crash course in real life.

[juzcuz]

Oh now
I get cha you mean cooking in the kitchen, cause she's so 'crafty' at it. All the 'clever' little projects she has for them to do.

[JudyB1938]

Glitter around the Bride's bed, huh? Just like all over Danielle's carpet...and she had that veil-like canopy over her bed. Too weird.

Didn't somebody say her glittery dress is missing? Maybe there WASN'T any glittery dress. Maybe it was just glitter, period!

[Spunky]

Not sure it answers the question if the attack video was anime

See my posting at 1671