Prosecutor: Westerfield Guilty 'Beyond Possible Doubt'(Many Still Find Van Dam's Culpable)

Court TV ^ | August 7, 2002 | Harriet Ryan

[FresnoDA]

Prosecutor: Westerfield guilty 'beyond possible doubt'

Lead prosecutor Jeff Dusek traced the fingerprint, blood and fiber evidence linking defendant David Westerfield to a murdered girl.

By Harriet Ryan
Court TV

SAN DIEGO — Calling the murder of Danielle van Dam an "evil, evil crime" that shattered notions of suburban safety, a prosecutor urged jurors Tuesday to convict her neighbor, David Westerfield, of capital charges.

Before a courtroom filled to capacity for closing arguments, prosecutor Jeff Dusek said the 50-year-old engineer snuck into the second-grader's bedroom last February, snatched her from her canopy bed, killed her and then "dumped this 7-year-old child naked in the dirt like trash for animals to devour."

"He's guilty of these crimes. He's guilty of the ultimate evil. He's guilty to the core," Dusek told jurors at the end of a closing studded with drama despite its three-and-a-half-hour length.

Dusek shouted and jabbed his finger at the defense table when he discussed Westerfield and the child pornography the prosecution says reveals a motive in the killing. But when he mentioned Danielle's death, his voice dropped to a whisper, forcing jurors to lean forward when he said, for example, of the moments before her killing, "This was not an easy time. This was not fast."

 

Westerfield listened to the prosecutor's closing argument Tuesday.

At one point, he slammed his hand again and again on the jury box rail to simulate, he said, Danielle's head striking Westerfield's headboard as he raped her. The image was too much for Brenda van Dam, Danielle's mother. She leapt up from her seat at the back of the courtroom and ran to the door in tears.

Westerfield's lawyer, Steven Feldman, began his closing late Tuesday afternoon. He is to conclude Wednesday morning and then Dusek will have one final opportunity to convince the panel to convict Westerfield of felony murder, kidnapping and child pornography charges.

The six women and six men who have heard evidence in the two-month long trial appeared to pay close attention to Dusek's summation, which focused on the forensic evidence connecting Westerfield to Danielle's disappearance and problems with his alibi for the weekend she vanished.

A spot of her blood on a jacket Westerfield took to the dry cleaners, Dusek said, "in itself tells you he's guilty beyond a reasonable doubt. That alone. But it doesn't stop there."

He also listed fiber, fingerprint and hair evidence linking Westerfield to Danielle and said, "all of it comes back to his lap." Of two blond strands found in the defendant's recreational vehicle and genetically matched to Danielle, he said, "Proof beyond a reasonable doubt? Proof beyond a possible doubt."

Dusek pointed to an autopsy photo showing Danielle's badly decomposed remains and ticked off the fiber and hair evidence technicians gleaned from her body.

"From Danielle herself, she helps to solve this case," he said.

Westerfield gazed straight ahead, and in the back row of the courtroom, Brenda and Damon van Dam held hands and stared at the floor. A row in front of them and three seats to their right, Westerfield's sister, who was attending the trial for the first time and was in the company of her husband and son, stared at the image.

Dusek also attacked Westerfield's claim that he spent the weekend Danielle vanished on a 560-mile solo road trip in his recreational vehicle.

"He gives us a bogus story that just doesn't wash," said Dusek, referring to his account of driving from his home to the beach then to the desert then to another part of the desert before returning to the beach.

He said Westerfield spent that weekend sexually assaulting Danielle and then after killing her, searching for a place to dump her body.

The prosecutor listed other potential suspects, including the van Dams, their friends, Westerfield's teenage son and even "the bogeyman," but said each was investigated and cleared.

He criticized what he said were defense attempts to implicate Westerfield's son, Neal, in the crime and said testimony about the van Dam's risque sex life, which included swinging, was irrelevant.

"All the sex, the alcohol, who's doing this, who's doing that. That's got nothing to do with her kidnapping," Dusek said.

With Westerfield's mug shot projected on the courtroom wall next to a passport photo of Danielle taken the day she vanished, Dusek said, "I think at times we've lost track of the other person. We've lost track of Danielle, what happened to her, what he did to her."

The prosecutor downplayed bug evidence presented by the defense suggesting Westerfield was under surveillance when Danielle's body was dumped and therefore couldn't have been responsible.

"Everyone's different, has a different estimation, approximation, some might even say guess," said Dusek. He added, "This is not an exact science. This is not DNA."

The prosecutor told jurors repeatedly that he did not have to prove to them why Westerfield killed Danielle, only that he did, but he said he was certain jurors wanted to know, "Why would a regular, normal 50-year-old guy kidnap and kill a 7-year-old child?"

There was no answer, he said, just another question. Pointing to print outs of some 85 images of child pornography found on computers and discs in Westerfield's home, Dusek said, "Why would a normal 50-year-old guy have pictures of young naked girls?"

With some of the images of elementary-school aged girls, naked and exposing their genitals, flashing on the courtroom wall behind him, Dusek pointed at Westerfield and said, "These are his fantasies."

Westerfield stared toward the empty witness stand, never looking at the photos.

Dusek acknowledged that "if (Westerfield) is the guy, that destroys all our senses of protection."

"That's the scariest part — he was a normal guy down the street," said Dusek.

Defense lawyer Feldman promised jurors the heart of his argument Wednesday, but in a little more than an hour before the panel, he seemed to be hoping for a hung jury. He presented jurors with a list of "Jury Responsibilities," several of which seemed aimed at encouraging any panelist for acquittal not to cave to pressure from other jurors.

One "responsibility" read "All of you have the right to have your feelings respected."

Just before court broke for the day, Feldman held up a blank piece of posterboard and said, "This is the only evidence they have of David Westerfield in the van Dam residence."

He suggested the van Dam's swinging lifestyle endangered their children.

"You don't know what pervert is coming in the door when you're in the bar, drunk, making invites," he said.

Comprehensive case coverage

[shezza]

The Van Dams, Brenda and her son and her daughter, were brought into his environment.

The sinister bleach, remember? "Anybody knows that if you use bleach it will knock out DNA!" Did you know that? News to me. So suddenly David's sinister because he was using bleach. This isn't sinister, it's doing laundry after coming back from a 3-day weekend.

We know fibers get picked up from the floor and plopped out to the floor (as per Susan), and they get into the laundry and they transfer and they transfer and they transfer. They could not make a common fiber source. They could not make a conclusion of David. NOt one fiber in the entire case did they say did NOT come from a common source, except for those from which DAW was explicitly excluded.

[FresnoDA]

AN AMERICAN TRAGEDY

DID THE POLICE BUNGLE THE CASE OF ADAM WALSH?

BY TAMMERLIN DRUMMOND

---

The story is already part of contemporary lore, a wrenching lore to break our hearts: the disappearance of a six-year old boy named Adam on July 27, 1981; the discovery of his severed head 16 days later in a Florida drainage ditch; the inability of the legal system to pin the crime on anyone. Two TV movies have been produced on the ordeal of Adam's parents, John Walsh and his wife Reve. But only recently did Walsh--the no-nonsense host of the Fox TV show America's Most Wanted--decide to write down his own story. From its searing prologue through its frank re-creation of the lives undone by Adam's murder, Tears of Rage (Pocket Books; 318 pages; $24) astonishes the reader by turning a familiar tale into one full of fresh detail, undiminished pain and troubling revelation.

The book began as a record of Walsh's transformation from victim to crusader for a constitutional amendment on victim's rights. But as his co-author, PEOPLE senior writer Susan Schindehette, explored the documents on Adam's death, details emerged of a potential bungle by the Hollywood, Florida, police. To the surprise of Walsh, a loud champion of police work generally, the revelations were found in a 10,000-page case file that a judge had released to the media in 1996 against the wishes of the family. Walsh had feared it would hurt the investigation by publicizing information known only to the killer. The media found little worth writing about. But Walsh did.

He insists that the preponderance of evidence points to a drifter named Ottis Elwood Toole as his son's murderer. In one confession, Toole said he decapitated Adam with a machete and placed the head on the floor of his white Cadillac, which he then drove to a secluded spot off the Florida turnpike. He threw the head off a small bridge. Walsh asserts he even took police investigators to the location. Toole, however, stopped cooperating when, Walsh writes, the police became verbally abusive; he recanted. It might have been possible to run DNA tests to determine whether the blood in Toole's Cadillac was Adam's. But the carpet samples have disappeared. Police also mistakenly sold the car to a junkyard. And, while Toole was the prime suspect, Walsh says the police stubbornly focused attention on James Campbell, a family friend who had been involved in an affair with Reve. In 1988, Toole sent Walsh a letter from prison demanding $5,000 to talk about the location of Adam's body. Walsh immediately gave the letter to police. He has since discovered, he writes in Tears, that it was never forwarded to the district attorney.

Hollywood police chief Rick Stone, who says he has skimmed Walsh's book, maintains that his department never had the carpet samples to begin with because the car was impounded by another law-enforcement agency. Stone says there is no evidence to prove "beyond a reasonable doubt" that Toole murdered Adam. Both Toole and his close friend, convicted mass murderer Henry Lee Lucas, were notorious, he says, for confessing to crimes they didn't commit.

Walsh had held out hope that Toole, suffering from cirrhosis and facing five life sentences for other crimes, would make a deathbed confession. He may have. Walsh has since learned from an ex-prison official that Toole had spoken of Adam's murder to a nurse before he died in September 1996. But confidentiality rules prevent the nurse from confirming the allegation. Toole's niece told a detective her uncle confided that he had killed Adam, and felt bad about it. That is little consolation for John Walsh. Hearsay is not closure.

[nycgal]

Have you read the info on the MCF site?

I've been to the site and have read some of the info. I do plan to go back to complete the reading, but wish he didn't come across as being a bit flaky.

[demsux]

Duhhhhhhhhsek is sitting there writing up his new resume

[shezza]

Photo of interior of Mr. Westerfield's residence. Some pretty interesting clues in it. LE said they set things up to photograph it the way they wanted. Linens and things folded on dryer. Who folded that? There's no evidence DAW folded them.

Gas receipts entered into evidence...who do they belong to? Neal went and bought gas on 4th. Exhibits A, B, C, D, E--and here they are out (pointing to photos). Wait a minute, in K, here's "Damon and Brenda and a phone number"--who wrote that? Oh, Brenda.

Dusek said there was a dyed blonde hair in the motorhome. He said it belonged to Danielle L. Who else had dyed blonde hair? If Brenda had been in the motorhome, would she tell you?

We know kids bleed, anyone with a child knows kids bleed. You've got bandaids everywhere.

YOu claim you only met this man, dirty dancing. You claim he wanted to meet your girlfriend, but you leave YOUR number instead of the girlfriend. Would any of you do that?

[HoneyBoo]

The day he disappeared, Adam and his mother, Reve Walsh, went shopping at the mall. After dropping off Adam in a Sears toy department, Mrs. Walsh went looking for a lamp. When she returned, Adam was gone.

Why didn't Mrs. Walsh just put a sign on her son's back saying "take me." It's impossible not to feel sorry for the family but leaving a kid alone in a toy store is as stupid as it gets.

[the Deejay]

Well, Feldman said he could have gone to Mexico or FRANCE. And if he'd gone to France, he wouldn't have been home by Monday. He would have been gone a long length of time. Man hunt or no man hunt. He wouldn't have known he was a suspect in Danielle's disappearance.

[shezza]

You heard Dusek say yesterday that LE smelled bleach in the garage. FALSE!! Parga said she smelled bleach on the side of the house, Keene said he smelled nothing.

[shezza]

In the house, dogs had been tracked. (1) the provided tape of Mark Matthews (showed dogs); (2) showed Redden, discussion of how many times dogs were in house; (3) We know they DNA'd one of those dogs, but they didn't touch the other.

In taped interview, WEsterfield gave estimate of times. IN statement made by Redden, DAW used the term "we." Go back to Brenda's testimony and see how many times she misspoke.

[shezza]

Det. told them that Howard Lebore was both in Van Dam residence and in the Westerfield residence who said there was something unusual in there. Command center was right in the middle of the area, between the two houses. LE were going back and forth from WEsterfield house to VD house, although they said they were being careful to not cross-contaminate.

[shezza]

Here we were supposed to have some neatnik, but Det. Tomsovic said some rooms not very neat, stuff under furniture, oven not clean, can't tell condition of clothing in laundry. When you see photos of laundry, please remember that the officers do not accurately depict the condition of the clothing the way the officers found it...Parga said she picked it up and moved it for photographing.

[shezza]

Jennifer Shen said that all the special fibers of note (long brilliant green, blue, red) not found in DAW environment, although they were in the Danielle recovery environment.

Shen says most common fiber is cotton. Dulaney says the most common fiber is acrylic. The experts don't even agree. You're told by the judge to weigh the credibility of the experts. On something as fundamental in the area of your expertise, you don't know which fiber is the most common? Could have come from teh same source, could NOT have come from the same source. Isn't doing laundry an innocent activity?

[FresnoDA]

Calif. Girl Slay Case Nears the End

Wednesday, August 7, 2002
Last updated at 10:59:39 AM PT

By BEN FOX
ASSOCIATED PRESS WRITER

Defendant David Westerfield, the man accused of killing 7-year-old Danielle van Dam, listens in court as defense attorney Steven Feldman makes his closing argument, Tuesday, Aug. 6, 2002, during Westerfield's murder trial in San Diego. Feldman, challenged the prosecution's theory, holding up a blank poster board to underscore that there is no physical evidence showing Westerfield was in the van Dam home. (AP Photo/Dan Trevan, Pool)

SAN DIEGO -- The trial of the man accused of kidnapping and killing 7-year-old neighbor Danielle van Dam neared its finish Wednesday with the defense saying there is no evidence the suspect was ever in the victim's home.

Prosecutors trying David Westerfield have relied on circumstantial evidence and made guesses in forming their theory of February's kidnapping, defense attorney Steven Feldman said in his closing argument.

"They have to stretch. There's too many holes. There's no smoking gun," he said.

Prosecutors, however, have said Danielle's fingerprints, hair and blood were found in Westerfield's motor home and on one of his jackets. The jury could begin deliberations later Wednesday.

Danielle was last seen when her father put her to bed on Feb. 1. After a massive volunteer search, her nude body was found Feb. 27 along a rural road east of San Diego.

Westerfield, a 50-year-old engineer, is charged with kidnapping, murder and possession of child pornography. He could face the death penalty if convicted of killing the girl who lived two houses away.

Feldman said no fingerprints or other traces of his 6-foot-2 client were found in the van Dam home. Westerfield had never been in the two-story home and had no one way of knowing how to move through it in the dark, he said.

The defense also suggested that the lifestyle of the girl's parents, which included drug use and spouse swapping, might have exposed her to strangers who could have harmed her.

Damon and Brenda van Dam testified that they had smoked marijuana the night of their daughter's disappearance and had, in the past, had sex with another couple.

"If you engage in sex and drug behavior ... who are you inviting into your home?" Feldman said during his statement Tuesday. "When you invite the world in you don't know what you bring."

Prosecutor Jeff Dusek told jurors that there was no doubt Westerfield killed the girl. He said Danielle's fingerprints, hair and blood were discovered in Westerfield's motor home and on a jacket he took to a dry cleaner two days after she disappeared.

"He's guilty to the core," Dusek said Tuesday.

For the first time, Dusek also outlined how authorities believe the crime was carried out. He said Westerfield crept into the van Dam home and may have lurked in the girl's darkened bedroom for an hour before abducting her.

Dusek said authorities believe Westerfield left a neighborhood bar where he had seen Danielle's mother and, acting out his sexual fantasies, sneaked into the van Dams' house through an unlocked door at the side of the garage.

Danielle, her father and two brothers were asleep but a short time later the mother and some friends arrived.

"He gets penned in and hides somewhere, probably in her room," Dusek told jurors. "The bottom line is, though, he did it."

Westerfield took the girl to his home and then on a trip in his motor home, the prosecutor said. Dusek speculated that Danielle was killed in the motor home, although authorities have not been able to determine how she died.

[bvw]

I have wondered about what exactly the computer forensics expert meant by being able to check viewing times by checking the windows registry, as media player leaves some tracks. I have some doubt that those tracks left really represent actual views, or that other usages of media player could cause them without actually viewing the files.

[shezza]

Parga was in VD residence on Sunday, said she changed her shoes because her boss made fun of them, then went into MH. Then went into Westerfield house. Said she put the garden hose in her notes. Then after shown notes she said she didn't tell jury about garden hose. Two inconsistent statements within minutes. Was she "caught"? Was it a mistake? Did she just forget? What about the memory of even a law enforcement witness who contradicts herself within five minutes.

Looked at laundry, then Parga went upstairs. I'm sorry, but she was tracking trace. She was all over the place.

[shezza]

DAW throws laundry onto floor, picks up Danielle's hair (from cookie visit), gets thrown into laundry.

[the Deejay]

Feldman is doing an EXCELLENT job. I'm enjoying his presentation. He's sure hitting on all bases. I'm so glad to hear him pointing out Dusek's lies from yesterday.

Feldman is one of the very "few" defense attorneys that's not sleaze. He just points out the truth, facts & evidence. DW sure has an excellent attorney.

I hope the transcripts for today, get placed online soon. I cannot wait to read them.

[shezza]

They cannot prove where the fibers came from, what is the source. Dusek said in his opening statement that he was going to show you the source of that orange fiber in Danielle's necklace. But under microphotospectrophotometry, the similar orange fibers were excluded. All the other fibers, didn't use microphotospectrophotometry, because as Jennifer Shen says, "I didn't have time."

They cannot show a source for those fibers.

[Yeti]

You rock, shezza!

[shezza]

If Dusek tells you Layla's hair was anywhere in DAW environment, that indicates Locarde principle of transfer. Between Wednesday and Thursday. Double standard--want to use transfer on some instances, but exclude the transfer theory when it suits prosecution.

Denise, Barbara, Brenda, could have transferred fibers while dancing.