Posted on 08/05/2002 6:54:33 AM PDT by Jaded
During eight weeks of testimony in the David Westerfield trial, jurors have heard from grieving parents, cops, barflies, forensic analysts, bug experts and people who drive dune buggies around the desert wearing video cameras on their heads.
But there's one person whose silence has been conspicuous – Westerfield himself. Closing statements in the kidnap-murder trial are scheduled for this week, and it's now clear that Westerfield won't be testifying on his own behalf.
As a legal matter, it shouldn't make any difference. He has a constitutional right to remain silent, and the jury is forbidden by law from holding his silence against him.
But what about as a practical matter? Jurors are human, and most people might find it hard to understand why Westerfield, if he's innocent of killing 7-year-old Danielle van Dam, wouldn't demand the opportunity to say so on the witness stand.
In this respect, the Westerfield trial highlights one of the ironies of the criminal justice system: A defendant's decision to remain silent can be both totally meaningless and, at least arguably, one of the most telling details of all.
"It's the elephant in the middle of the room," said San Diego defense lawyer Dan Williams, who has been providing media commentary on the trial.
In interviews last week, several legal experts expressed opinions on whether Westerfield's decision to stay off the witness stand would have any effect on the verdict. The self-employed design engineer is accused of abducting and killing his Sabre Springs neighbor the first weekend in February.
Jurors will be given a standard instruction not to consider that Westerfield didn't take the stand. Jurors can usually be trusted to follow the law, the legal experts say.
Alameda County prosecutor Jim Anderson has tried 15 death penalty cases, and in every case but one the defendant opted not to testify. In general, jurors have always assured Anderson after their verdicts that they didn't hold the defendant's silence against him, he said.
"From my experience, they do follow the court's instructions and give it no weight whatsoever," he said.
Other experts predicted that Westerfield's silence would almost certainly have some effect on the jury, even if only on a subconscious level. Given the damning physical evidence, there are some questions only Westerfield himself can answer.
How did the girl's blood, hair and fingerprints get inside his motor home? Why did his jacket have her blood on it, and why did he take that jacket to a dry cleaner? Why didn't he bother to tell police about his trip to the cleaner with the bloodstained jacket on the morning of Feb. 4?
While it's unlikely that the jury will openly discuss Westerfield's silence during deliberations – that would be a direct violation of law – it might affect the jurors in ways they don't even realize.
"It's very difficult for them not to be affected by him not getting up there and answering some of these questions," said Williams, a former San Diego deputy district attorney. "It'll be down inside of them. It's got to be. It's just human nature."
Although the public might be tempted to infer guilt from silence, several defense lawyers said there are valid strategic reasons for keeping a client off the witness stand, even if he's innocent.
Many defense lawyers say they don't want a stupid or inarticulate client to testify, even if he's not guilty. The risk is too great that the client will be obliterated on cross-examination.
"Some people make terrible witnesses, including innocent defendants," said Vista criminal defense lawyer Peter Liss.
What's more, even if a defendant is innocent, he may have engaged in behavior that's unseemly, suspicious or simply doesn't make any sense. In those situations, a defendant might sink himself by trying to explain his conduct to the jury.
If Westerfield were to testify, for instance, he would have to explain the child pornography found on computer disks in his home office. Liss said he could imagine prosecutors spending an hour or two asking Westerfield about each and every image.
By taking the stand, Westerfield would give prosecutors the chance to "twist the focus of the case onto an unfavorable aspect of his personality," Liss said.
"Undue attention is paid to the child porn, and it diverts the jury's attention away from the truth," he added.
By testifying, a defendant may also give prosecutors the opportunity to present evidence that otherwise might not be admissible. For instance, when a defendant testifies, prosecutors can attack his credibility by telling the jury about certain criminal convictions in the defendant's background.
Westerfield's criminal record consists of a drunken-driving conviction. It's unclear whether he has anything else in his background that could have been used against him on the witness stand. The judge has held a number of hearings to discuss what evidence will be admitted in the case, but those hearings have been closed to the public.
Despite all the pitfalls in a defendant's testifying, some defense lawyers said they would have recommended that Westerfield take the stand. There's simply too much evidence that needs to be explained, they said.
"This isn't a stupid guy who can't speak for himself," Carlsbad criminal defense lawyer Dave Thompson said. "And we've got this mountain of physical evidence."
The risk, of course, is that Westerfield might offer such an unconvincing explanation that his credibility is destroyed.
"If the guy gets up there and can't explain away the physical evidence," Thompson said, "you now have eliminated all doubt."
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I have tried to be fair to Mudd, but I think his bias is extremely disturbing.
He went out of his way to establish a friendly rapport with the jury. That's fine if a judge remains poker-faced, so-to-speak. But if the judge is going to lay all his cards face up, the cozying up to the jurors seems more like part of a scheme.
All that is left to do is pray for justice. Only God and a very few people know the truth of what happened last February.
In my most objective view, I think David Westerfield just happened to be a little too single, a little too adventurous, a little too neat and a little too convenient at a time when an arrest and conviction had to be delivered for the boss man.
It's no different than any other self-preservation political situation, but this time a man's life is on the line. May God help him and help us all.
I agree. The only way I could think charitably of him would be if he suspects that the jury will wrongfully convict, he has given Feldman the gift of a gazillion grounds for guaranteed appeal. Hopefully after an outside, disinterested LE agency has had the opportunity to review and analyze the evidence.
I'm confused and I missed this AM's entire proceedings. If I am to read this right the judge actually told the jury that they are to decide if DW kidnapped DVD based only on the fingerprint? If so, that is absurd we would not need a jury if this were the case.
I belive a jury is instructed to weigh evidence in and of itself not as it relates to other pieces of evidence. As we've stated too many times the print in the MH just taken by itself means that 1)DVD was in the MH AT SOME TIME. 2)LE put it there.
The UNIDENTIFIED prints and UNIDENTIFIED DNA, since they are evidence also, weighed by their own merit tell us what? That there is a third UNIDENTIFIED party in this crime scene and THAT is what gives the reasonable dout that DW is the kidnapper.
Judge Mudd was speaking to Feldman, when Feldman tried to get the "kidnapping" charges against DW dropped today...because there was no evidence of DW in the Van Dam home.
Judge Mudd told him exactly what I wrote. "Her print was in his motor-home, so I have to assume he kidnapped her"..
It didn't sound TO ME like the Judge was bending over to hear any reason why her print was there.
It will be VERY interesting to hear exactly HOW he instructs the Jury. I hope to gosh he doesn't say what he said out of the Juror's range to them tomorrow.
Of course, there is the possibility the Juror's saw this on Court TV this morning too..
Like I said, Alex...I hope I am wrong.
Make me wrong.
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Yeti to #36 I say Amen!
Seems there has been alot of evidence gathered but only what matched up with something Westerfield deemed important.The blue paint(substance) found under Danielle's fingernails was presented to the jury but not where it came from,right?
It has been rumored PDvD went out that night to play paint ball. If this is true, might he have taken the kids along? I am not familiar with where a paint ball game is played. Is it played in a city park? Where kids might play while the Dad's played the game? Could Danielle have messed around with the paints? Could someone have taken Danielle from such an area without being noticed? Paint ball paint does come in blue as well as other colors?
Certainly this is my speculation and I would think the LE would have questioned the boys about their evening.
I was gone all day so am reading the threads to see what happened.
Sounds like the judge said plainly today what some of us have said before. Danielle did not have access to the MH. Her fingerprints (and hair and blood) in MH mean DW took her there. Jury may find the same. But kidnapping charge stays for THEM to decide.
Gee, that's pretty narrow-minded. Of course he couldn't have said "well for her to have been out of the home she had to have been kidnapped."Because I'm sorry I'd have been the first one rasing my hand saying, "your honnor umm...sleepwalking? Your honnor umm...she walked out of the home cause she was looking for her caregivers that had not checked on her for hours?
Of course, there is the possibility the Juror's saw this on Court TV this morning too..
Or another subsidiary, or another paper. Well I do hope that when they are in deliberations if one person comes up with the fact that they heard it the others immediately report it.
Make me wrong.
Alexandria WHIPS out her MAGICAL fairy WAND and SWISH! "there you're Nancy Grace from CTV!"
Kidding aside, I'd like to see the transcripts but it dosen't look like they'll be up tonight. :o(
Well if a statement like that is the Jury instructions I guarentee the verdict will be overturned. The jury is the trier of fact not the judge.
I believe what he meant is that he is not tossing out the kidnapping charge because there is in fact proof that she was in the motor home and that if the jury decides that her fingerprint was placed in there the day in question then they may find him guilty of kidnapping unless they have other overwhelming evidence to induce reasonable doubt in their mind.
Care to share where you come up with that claptrap?
A person can think Westerfield is guilty and think the van Dams behavior was vile. Get it?
Pinging Yeti since you are praising his imaginings that those who think Westerfield is guilty are single parents and divorcees.
It's like the vDAs think: "Hey! I like to get drunk/use drugs/flop around with people I'm not married to! You sayin' I'm bad? You are, aren't you!"
Now that the end is in sight you decide to malign fellow freepers because you disagree with them. Pathetic.
Here is a link to Ito's Jury instructions for the OJ trial (it was the first example I came across in a search and would not have been my first choice to use as an example):
http://www.lectlaw.com/files/cas62.htm
Of particular interest to me was the reasonable doubt detail, comments on circumstantial evidence and how to evaluate expert witnesses.
"Both direct evidence and circumstantial evidence are acceptable as a means of proof. Neither is entitled to any greater weight than the other. However, a finding of guilt as to any crime, may not be based on circumstantial evidence unless the proof circumstances are not only one, consistent with the theory that the defendant is guilty of the crime, but two, cannot be reconciled with any other rational conclusion. Further, each fact which is essential to complete a set of circumstances necessary to establish the defendant's guilt, must be proved beyond a reasonable doubt. In other words, before an inference essential to establish guilt may be found to have been proved beyond a reasonable doubt, each fact or circumstance upon which such inference necessarily rests, must be proved beyond a reasonable doubt. Also, if the circumstantial evidence as to any particular count is susceptible of two reasonable interpretations, one of which points to the defendant's guilt, and the other to his innocence, you must adopt that interpretation which points to the defendant's innocence and reject that interpretation which points to his guilt. If, on the other hand, one interpretation of such evidence appears to you to be reasonable, and the other interpretation to be unreasonable, you must accept the reasonable interpretation and reject the unreasonable."
"In examining an expert witness, counsel may propound to him or her a type of question known in the law as a hypothetical question. By such a question, the witness is asked to assume to be true a set of facts and to give an opinion based upon that assumption. In permitting such a question, the Court does not rule and does not necessarily find that all the assumed facts have been proved. The Court only determines that those assumed facts are within the probable or possible range of the evidence. It is for you, the jury, to find from all the evidence whether or not the facts assumed in a hypothetical question have been proved. If you should find that any assumption in such question has not been proved, you are to determine the effect of that failure on the proof Excuse me. You are to determine the effect of that failure of proof on the value and weight of the expert opinion based on the assumed facts. In resolving any conflict that may exist in the testimony of expert witnesses, you should weigh the opinion of one expert against that of another. In doing this, you should consider the relative qualifications and credibility of the expert witnesses as well as the reasons for each opinion and the facts and other matters upon which it was based. In determining the weight to be given the opinion expressed by any witness who did not testify as an expert witness, you should consider his or her credibility, the extent of his or her opportunity to perceive the matters upon which his or her opinion is based and the reasons, if any, given for it. You are not required to accept such opinion but should give to it the weight, if any, to which you find it to be entitled."
If he had simply told the cops he didn't have any information about the disappearance of Danielle and refused to answer any other questions because he didn't have anything to tell them, he would not have been charged with these crimes. There was no information on which to base a search warrant.
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