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. Posted on 08/16/2002 6:39:20 AM PDT by FresnoDA
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."
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.
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.
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:
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.
"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.
A murder trial currently underway in Southern California is proving that “alternative sexual lifestyles” practiced by “consenting adults” in the “privacy of their own homes” can have unforeseen consequences for society at large — and in this case, may have cost the life of a little girl.
Seven-year-old Danielle van Dam was discovered missing from her bedroom on Saturday morning, February 2, by her parents Brenda and Damon van Dam. On February 27, her badly decomposed and nude body, minus a foot and reproductive organs, was discovered along a rural roadside in East San Diego County. Because of the body’s condition, the medical examiner was unable to determine the exact cause of death or if little Danielle had been sexually molested.
David Westerfield, a 50-year-old self-employed design engineer and van Dam neighbor, has been charged with Danielle’s kidnapping and murder. He is also charged with possession of child pornography after police found thousands of pornographic images on his computer.
In opening arguments last week, prosecutor Jeff Dusek told jurors that DNA evidence found in Westerfield’s motor home and on a jacket would conclusively link him to Danielle, and that his possession of child pornography would supply the motive needed to convict him of her murder.
However, the prosecution’s case against Westerfield has been complicated by the van Dams' debauched lifestyle. Westerfield’s defense attorney Steven Feldman argued that Brenda and Damon van Dam’s “risqué behavior” — including their promiscuous sexual relationships and marijuana and alcohol use — opened their home to several people who could have abducted and killed their daughter.
‘SWINGING,’ DRUGS, AND ROCK-AND-ROLL
On February 1, the night Danielle vanished from her home in the upscale San Diego suburb of Sabre Springs, her mother and two female friends, Denise Kemal and Barbara Easton, partied at a local bar. Before leaving for the bar, the three women drank alcohol and smoked marijuana in the van Dams' garage, where a door leading into the house had been altered so that Danielle and her two brothers, then aged 5 and 9, could be locked out from inside the house. Damon van Dam also admitted drinking and smoking marijuana with the women before they left.
Damon stayed home with the children while Brenda, Barbara and Denise went to nearby Dad’s Café. There, according to court testimony, they continued drinking, danced provocatively, and went outside at one point to smoke more marijuana supplied by another “family friend,” Rich Brady. They also ran into Westerfield, whom Brenda and Danielle had visited earlier in the week to sell Girl Scout cookies.
When the bar closed, the women — described as “toasted” by that time — came back to the van Dam home with Brady and another male friend, Keith Stone, who had expressed a sexual interest in Easton. Upon arriving home, Brenda van Dam noticed that an alarm light was in the house. She and Kemal searched the house and found that the side garage door was open. While they did so, Easton went upstairs to the van Dam bedroom, where she got into bed with Damon van Dam, rubbed his back, and they kissed.
Noticing Easton’s absence, Brenda van Dam went upstairs and found her with her husband. She told the two to come downstairs to join the others. Shortly thereafter, all four guests left, and Brenda and Damon went to bed. Sometime after 3:00 a.m., Damon van Dam awoke to find another alarm light blinking. Going downstairs, he discovered the kitchen sliding glass door open. He closed it and went back to bed without checking on the children. Hours later, when Danielle failed to emerge from her bedroom, the van Dams called 911 to report her disappearance.
‘SWAPPING’ OR ‘SEX PARTY’?
Initially, the van Dams lied to police detectives about their sexual activities and acquaintances. However, on the stand last week, Brenda and Damon confirmed that many of the rumors about their “lifestyle” which had circulated throughout San Diego since their daughter's disappearance were true.
In addition to his activities the night of Danielle’s disappearance, Damon van Dam testified that, on at least three occasions, he had sex or tried to have sex with Easton in the presence of his wife. He and Brenda also admitted having had sex with Kemal and her husband, Andy, at a Halloween party in October 2000.
When asked by the prosecuting attorney if she had had a “sex party” at her home the night of Danielle’s disappearance, Brenda van Dam denied it, saying, “There has never been a sex party at my house.” She subsequently admitted to the defense attorney during cross-examination that she and Damon had engaged in sex with the Kemals during the Halloween party but said, “I don’t consider that to be a sex party.” Kemal similarly downplayed the Halloween party, saying it was “more like a swap” and adding that the van Dam children were not in the home that night.
To date, the remaining van Dam children have not been removed from the home.
MOLES: ‘SWINGING’ MOCKS MARRIAGE
According to The San Diego Union-Tribune, the Westerfield trial is “one of the most closely scrutinized trials in San Diego County history.” Its aspects, including the van Dams’ sexual proclivities, “have generated a raucous public discourse ranging from pedophilia to proper parenting.”
The case also turns a spotlight on organizations like the National Coalition for Sexual Freedom (NCSF), based in Washington, D.C., that advocates “alternative sexual expressions” such as “swinging” (wife-swapping), “polyamory” (multiple simultaneous sexual relationships), and “consensual” sadomasochism. See the April 18, 2002 C&F Report article to learn more about the full agenda of the NCSF, which now works closely with major homosexual and transsexual activist groups such as the National Gay and Lesbian Task Force, GLAAD (Gay and Lesbian Alliance Against Defamation) and GenderPAC.
Cindy Moles, director of Concerned Women for America of San Diego and Imperial Counties, has followed the van Dam case and said: “This ‘lifestyle’ cheapens marriage and reduces it to nothing more than a contract between two people who share a house and a checkbook. The ‘swingers’ movement makes a total mockery out of fidelity and marriage, and threatens the children who would normally find safe haven in a home with parents who are faithful to each other.”
Moles said it is interesting that “just as special interest groups worked to normalize and legalize homosexuality, organizations like the NCSF are advocating for this appalling ‘swinging’ lifestyle.”
Child advocate Douglas Howard Pierce warned on his Millennium Children’s Fund Web site: “America needs to be aware about another type of hidden swingers called ‘family affair.’ This is when the children are involved in family group sexual encounters. This type of underground activity is prevalent via the Internet and chat rooms titled ‘family affair.’”
‘LIFESTYLES’ HAVE CONSEQUENCES
San Diego pro-family attorney Bill Trask offered the following analysis of the van Dam story: “In a criminal case, the defense has to produce enough evidence that causes the jury to doubt that the defendant committed the crime. One way of doing that is to show that there is another reasonable explanation” — in this case, that the van Dams opened their doors to a variety of unsavory characters.
“I think what this case boils down to is a principle that is generally applicable regardless of what the lifestyle is, and that is that even though in our society we are free to engage in any lifestyle we want, it doesn’t mean that we’re free from the consequences of that lifestyle,” Trask added.
Allyson Smith, a regular contributor to Culture & Family Report, is a freelance reporter based in San Diego, California.
This seems right.
At a minimum, I think they are being careful and thoughtful. No knee-jerk.
Understanding Engineers - Take NineAn engineer was crossing a road one day when a frog called out to him and said, "If you kiss me, I'll turn into a beautiful princess."
He bent over,picked up the frog and put it in his pocket. The frog spoke up again and said, "If you kiss me and turn me back into a beautiful princess, I will stay with you for one week." The engineer took the frog out of his pocket, smiled at it and returned it to the pocket.
The frog then cried out, "If you kiss me and turn me back into a princess, I'll stay with you and do ANYTHING you want." Again the engineer took the frog out, smiled at it and put it back into his pocket. Finally, the frog asked, "What is the matter? I've told you I'm a beautiful princess, that I'll stay with you for a week and do anything you want. Why won't you kiss me?"
The engineer said, "Look I'm an engineer. I don't have time for a girlfriend, but a talking frog, now that's cool."
Fres, your article just posted reveals the motive behind the Van Dams manufacturing the story about Danielle's disappearance.
They were swinging, drunk, high and unavailable as responsible parents that evening. If an accident happened, where Danielle met her fate, then they would have been terrified to call the LE. What would LE think of them? Would they lock them up? Would they take the boys away? They were just plain afraid of the consequences...even tho they tried to cover up what happened that evening in 6 interviews and then went on to brazenly state "we have no regrets", which was the ultimate NOT GUILTY message of this whole sorted mess. The public bought it, only because they had a suspect..that is, Westerfield.
But suppose there wasn't a Westerfield? How would the public have reacted to the contributory negligence and culpability of the Van Dams?
Dusek would be holding the rope in his hands for them, instead.
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An excellent collection of brains on this board. I'm so impressed with you all. Thanks for sharing all the fascinating info, revelations, discoveries, and ideas. May I bask in your brilliance?
BTW, speaking of Youngflesh and the porn disks, several things have been bothering me for a very long time: first of all, Watkins's testimony indicates he never saw the disks in question until Youngflesh waved around an envelope and said, "Aha! Look what I found!"
Watkins never saw any envelopes on the office bookshelves, and he didn't see Youngflesh pull any envelope off the bookshelf. The first time he saw those disks and that envelope was when Youngflesh presented it to him. When asked where the envelope was found, he recounted what Youngflesh had told him, not what he saw ('cause he didn't find it or see Youngflesh find it).
Also, they said it was typical for porn collectors to keep disks in a long white envelope sticking up on the bookshelf, along with a list of passwords and web addresses. What kind of moron keeps secret stuff "hidden" in that sort of highly visible manner...or writes down all his passwords and stores them in a highly visible white envelope sticking up on the shelf? None of that makes any sense to me. (All the silliness and inconsistencies make it look more apparent that LE DID plant some of the porn while DAW was away and before the search warrant came in...just like Ott could have planted evidence at Twin Peaks before the other LEOs came in to pick up the goods.)
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