"I know fire and brimstone's coming," he said. "I don't have the opportunity to respond. Please keep in mind that the system is adversarial. Please consider what the defense's position might be in response to some of the line of fire." Posted on 08/07/2002 7:08:12 PM PDT by FresnoDA
August 7, 2002
Ending nearly five hours of defense argument, the chief attorney for murder defendant David Westerfield rested Wednesday afternoon by urging jurors to remember they "save us from lynchings" and reminding the panelists that they are the "conscience of the community." The jury should begin deliberations Thursday.
Defense attorney Steven Feldman began his afternoon remarks by telling jurors he was in the "homestretch" of his arguments. Repeatedly, he urged jurors to take the defense's point of view into consideration when the prosecution received its opportunity to rebut his closing arguments.
"I know fire and brimstone's coming," he said. "I don't have the opportunity to respond. Please keep in mind that the system is adversarial. Please consider what the defense's position might be in response to some of the line of fire."
"Ladies and gentlemen this has been an extraordinary experience," Feldman said, leaning on a podium for support. "It's been hard, it's been emotional, it's been intense and at times overwhelming. The burden the lawyers have, is coming your way. The tension, the angst, the pain, is coming your way."
"You are the conscience of our community. You, you save us from lynchings. You protect us. Thank you."
Prosecutor Jeff Dusek, given the opportunity to respond late in the afternoon, began by saying he hardly knew "where to start."
"You were told to expect a rebuttal," he said, "and you are going to be given a rebuttal, when you are told falsehoods, misrepresentations, total distortions throughout the entire closing argument."
The prosecutor said he had moral and legal problems with what Westerfield "did to that child."
Earlier, Feldman had sought to remind jurors that the 50-year-old design engineer could not be placed off Dehesa Road where Danielle van Dam's body was recovered.
He showed them aerial photographs of the scene and wondered aloud why, as prosecutors have charged, his defendant would drive several hundred miles just to place her in that spot.
"It's narrow," he said of the two-lane roadway. "Where's the evidence anyone saw a motor home? Where's the evidence of David Westerfield (being) in Dehesa?"
Feldman noted the difficulty of accessing the site, pointing out that the area, up a steep bank, was so difficult to reach, steps were later added to it.
Feldman also noted that authorities were unable to identify a hair found underneath the body.
"Whose was it? It wasn't David Westerfield. It's not Danielle van Dam's. How could it have gotten there?"
The defense attorney also pointed out the area was used as a dump, with any number of possible sources of the orange fibers found on Danielle van Dam.
Turning his attention to autopsy evidence, he noted that there were no broken bones around the victim's neck, saying that proved the victim wasn't strangled or asphyxiated, as prosecutors contend.
Feldman's closing argument also revisited the days of forensic entomological evidence. He pointed out that, based on the bug experts called, it would have been "impossible" for Westerfield to have placed the body there.
February's weather was hot, Feldman said, hot enough to promote the growth of bugs that entomologists have pointed to as evidence the victim's body could not have been exposed since early February. The victim's body was recovered Feb. 27.
Referring to earlier comments by Dusek that authorities didn't know the proper questions to ask of the bug experts, Feldman said:
"So they're going to say because they didn't ask the right questions we should convict David Westerfield?"
The defense attorney also made several pointed references to the reason forensic entomologist David Faulkner was called to the scene – because he was called in by law enforcement. Faulkner ended up being a defense witness in the case.
Faulkner, who has previously testified in cases prosecuted by Dusek, testified that, based on the development of insect larvae, the victim's body could not have been exposed to the elements before Feb. 16.
Feldman told jurors that the best estimate of county medical examiner Dr Brian Blackbourne was that the body was left out 10 to 42 days before its discovery.
He reminded the jurors of the testimony of defense expert Neal Haskell, who testified that blow flies did not colonize the body of the 7-year-old girl until at least Feb. 12.
"We already know that David was under constant surveillance, then it's impossible for him to have done it. If Faulkner is right, he's not guilty, there's no issue."
He called the agreement by his experts a "concordance of science."
Feldman ridiculed the conclusion of one prosecution witness, forensic anthropoligist Dr. William C. Rodriguez III, who concluded the range of possible death dates extended to January 17, a time the victim was still alive.
He also made light of a prosecution theory that the victim's body wasn't colonized within a reasonable time frame because it became "mummified."
"So conditions in San Diego are so unusual, they've never been seen like this before? The body mummified so much that the bugs went 'poink?' "
Earlier Wednesday, the defense attorney intimated to jurors that it was a stretch to believe that a drunken, 6-foot-2-inch tall David Westerfield stealthily entered the van Dam residence in the middle of the night and silently spirited away 7-year-old Danielle van Dam.
It's "common sense" that only someone familiar with the house, with the van Dam family and with Danielle could have entered the house and awakened Danielle without her "screaming bloody murder" and waking up her family, Feldman argued.
"There's absolutely no way that someone unfamiliar with this residence could do this," Feldman said.
And that person was probably someone that Damon and Brenda van Dam had previously invited into their home, Feldman said, referring to testimony that the couple was sexually adventurous and had engaged in spouse-swapping.
On Tuesday, prosecutor Jeff Dusek had told jurors "the bogeyman didn't do this crime either, as much as they want you to believe that."
'Circumstantial case'
Feldman also argued that law enforcement officials had been stretching their circumstantial evidence from the start of the investigation to fit Westerfield because they knew there was no "clear, unambiguous" smoking gun pointing to the neighbor.
"We're still looking. That smoking gun we're still trying to find," Feldman said. "They might have the outlines of the shadow of the gun, but we're still looking."
Westerfield is accused of kidnapping Danielle from her Sabre Springs home on Feb. 2 and killing her. He is charged with kidnapping, murder with special circumstances and possession of child pornography.
Westerfield, who lived two doors from the van Dams, was an early suspect in the case and came under police surveillance on Feb. 5.
After a massive community search that drew national attention, Danielle's naked and decomposing body was found dumped off rural Dehesa Road near El Cajon on Feb. 27.
Jurors have heard 24 days of testimony and have seen 199 exhibits since the trial began on June 5.
During his 3 1/2-hour closing argument Tuesday, Dusek told jurors they didn't have to determine how and when Westerfield entered the van Dam house and kidnapped and killed Danielle, just whether he committed the crime.
Feldman urged the jury to examine the details of the case and told them that laws regarding jury deliberations required them to interpret evidence in favor of the defendant's innocence whenever there were two conflicting but reasonable interpretations.
'Heartburn'
A day after beginning his closing argument with a frenetic, courtroom-spanning presentation, a subdued Feldman resumed his summation by asking jurors not to blame his client for his own performance.
He asked the jurors not to consider the kidnap-murder case as a personality contest between himself and prosecutors Dusek and Woody Clarke.
"If there is anything I've said, anything I've done that has caused any of you heartburn, please don't hold it against Mr. Westerfield," Feldman said.
Much of the prosecution's case against Westerfield relies on speculation, Feldman said, speculation without evidence that Westerfield knew his way around the van Dam's home, that he wore left no fingerprints because he wore gloves that were never found.
"Did he gag her? There are no gags. Did he tie her up? There's no rope," Feldman said. "They have to guess."
'Red herrings'
He also dismissed as a "red herring" the prosecution's suggestion that Westerfield had disposed of evidence because police never found a pair of black boots Westerfield had supposedly been wearing to Dad's Café the night Danielle disappeared.
Feldman said Westerfield's former girlfriend had testified that Westerfield didn't own a pair of black boots.
"Watch out for them red herrings, folks. There's lots of them," Feldman said. "We don't want the courtroom smelling like a fish market."
Reasonable interpretations
Feldman told the jurors that there were reasonable explanations for Westerfield's supposedly odd behavior the weekend Danielle disappeared – and that his behavior was not that of a man who was carrying around either a kidnapped girl or a dead body.
Several witnesses testified that Westerfield had invited them to come along with him on his trip to the desert that weekend, Feldman said. It was a trip he told people he wanted to take on Super Bowl weekend because the desert would be less crowded.
"It was spontaneous, but it wasn't as though, 'I've just kidnapped somebody and I have to get away immediately'," Feldman said.
Staying in his motor home at Silver Strand State Beach on the morning of Feb. 2 was consistent with someone trying to sleep off a hangover from drinking at Dad's Café the night before, Feldman said.
Reasonable behavior
And Westerfield's decisions to go to Glamis and other desert locations, then back to the beach, were consistent with the behavior of someone who'd recently been dumped by his girlfriend and couldn't find any joy in his surroundings, Feldman said.
"If there was something suspicious and unreasonable (about the route), where's the body? She's either dead or he's carrying her and this is a perfect place to dump a body," Feldman said.
He also addressed Westerfield's use of "we" while describing his trip to the desert to a police investigator in a taped interview, noting that Danielle's mother, Brenda van Dam, once said "they" had taken her daughter.
"It's a natural slip. There's nothing to it. Unless you want to take it out of context – no surprise – unless you want to spin it," Feldman said. "Again, one side does it, it's not sinister, the other side does it, it's sinister."
Dyed blonde hairs
Feldman also hinted in passing at an alternate explanation for the dyed blonde hairs found in Westerfield's motor home, hairs which were found to match the DNA of Danielle – or her mother.
"If it was the case that Brenda van Dam was in the motor home, would you know it? Would she tell you?" Feldman asked the jury. "And wouldn't it be a fatal blow to the prosecution's case if the defense could show you one time, ever, innocently, that Danielle van Dam was in the motor home. That would slay their case."
Though Feldman said witnesses had reported seeing Westerfield's motor home parked on the van Dams' street with the door unlocked on at least one occasion, he didn't point to any testimony that showed Danielle or her mother had been in the vehicle.
Fiber conclusions
In a new development, Feldman disclosed that the prosecution originally intended to present a knit afghan from Westerfield's residence as the common source of the acrylic fibers found on Danielle's body and Westerfield's laundry.
San Diego police criminalists initially concluded that the fibers from both scenes could have matched those from the afghan, Feldman said, but the prosecution had to abandon the evidence after a Sacramento lab performed more detailed tests and found they didn't match.
And there was "a universe of fibers" found on Danielle's body, none of which were also found in Westerfield's home or vehicles, Feldman said.
Porn evidence
Feldman also argued that the prosecution had failed to prove that any of the sexually explicit images found in Westerfield's office comprised child pornography, let alone that it belonged to Westerfield instead of his 19-year-old son, David Neal Westerfield.
The prosecution hasn't shown that Westerfield had any sexual interest in young girls, let alone the motive to kidnap one, he said.
"Don't get sidetracked into their speculation. They don't have a motive. They're grasping," Feldman told the jury. "You might have a moral problem with what Mr. Westerfield did or didn't do, but morals are not law."
Dusek immediately attacked a chart developed by the defense depicting rates of body decomposition, saying it was designed for humid, Midwest conditions. When compared to the dry air of the east San Diego county, such use was "misleading and inappropriate," the prosecutor said.
There was no "impossibility" created by the bug experts' testimony, he contended.
The prosecutor urged the jurors to ignore Feldman's suggestions they deadlock and instead, listen to each other's views until reaching a verdict.
"That's why jurors are sent into a jury room rather than each one being sent into a separate polling booth," he said. "There's supposed to be give and take, with open minds."
Dusek also rejected Feldman's suggestions that, if given the choice between two reasonable interpretations of facts, they must automatically choose the facts that favor the defendant in the case.
"What you have to do is first of all determine whether each of those facts have been proved beyond a reasonable doubt. The instructions tell you that."
Holding up a rope to demonstrate his point, he said each of the facts in the case could be analogous to the many pieces of twine that make it up.
"Take all the facts you are convinced beyond a reasonable doubt exist, then you make the determination that the rope still holds," he said. "Is there only one reasonable inference, one reasonable interpretation, one reasonable conclusion?"
He yanked on the rope to show its strength before setting it down.
He used the Chargers' and Padres' chances of winning championships this year to make another point about how to view the volumes of circumstantial evidence in the case.
"How reasonable is it the Padres are going to get in and win the World Series and the Chargers get in the Super Bowl and win?" he said. "It's possible, but not reasonable, sorry guys, the statistics of that chance are virtually nil.
"Yet, the possibility of that is greater than all these other 'accidents' coming together in one case and leading us down the path of not guilty."
He attacked Feldman's assertions in his opening statement, that the defense would "prove not speculate."
"We've seen just the opposite is true," Dusek said. Such statements were even carried over into the closing argument, the prosecutor said.
For example, Dusek said, Feldman spoke in his opening statement about the van Dam children being in the defendant's home and "jumping up and down on furniture in the living room and on other bed sheets."
"There's been no evidence of that," Dusek said. "As my dad used to say, that's a whole lot of wind sauce in your air pudding."
At one point during his summation, Dusek appeared to be having trouble finding a word and a helpful voice came from the audience to his aid. Brenda van Dam supplied the word. When Feldman objected that the audience was "assisting in closing," Mudd urged the audience to "please remain silent."
Dusek attacked Feldman's assertion that his client gave authorities "precise, detailed information" about his whereabouts.
"Yeah right," Dusek said. "What he said was the truth, packed with lies, alibis. Where you can find him here, here and here. Why those locations? Then he left out the good stuff. The dry cleaners, cleaning the SUV. He didn't tell about that. He told folks in Glamis that he had a flat tire on his trailer. Yeah, right. He was telling the truth, the cops just followed it blindly and confirmed every little bit."
Dusek is scheduled to continue the prosecution's closing rebuttal Thursday morning at 9 a.m.
"It looks BAD for your boy, DW.." she said to me.
Propoganda machine is working. Thank you, Judge MUDD..you've made San Diego LE proud to call you one of their own.
sw
I haven't heard anyone on tv discuss it, but I think Feldman is arguing not just for a hung jury, but for jury nullification. I would think all of us are against that practice, and would consider it an obvious act of desperation by any criminal defense lawyer.
I've got to admit, as a long time military wife, and [very]generally speaking, I tend to think "if the bastard has been brought to trial, he's guilty." That surely colors my opinion in this case, as does the fact that Feldman reminds me of those rabid Clinton defenders who spent their professional careers denying that Clinton's a womanizer. Against all reason, against all logic, and with no shame, the same trait I see in Feldman.
But no matter how this turns out, it's been an interesting trial to follow, and even more interesting to read the opinions here.
Well, aren't you the snide one? Dusek was twisting and turning facts in his closing arguments with the fake emotion of a Clinton. It was sickening to see him defend the disgusting Van Dams. I believe that Westerfield will be found not guilty or there will be a hung jury. I think Feldman did a damn good job.
And you're not alone in thinking Feldman did a good job. Some CourtTV talkers said his closing demeanor is standard for him, his style. One said, it's not phoney, it's the real Feldman. Since some of the CourtTV talkers regard Feldman so highly, it must have been successful in the past.
But since you did......I'll go tit for tat. Why is it that people like yourself can't understand that we try people before a jury because we cannot trust that law enforcement automatically arrests the actual perp every time?
You say
"I tend to think "if the bastard has been brought to trial, he's guilty."
which shows you are not even fit to serve on a jury. So much for your opinion.
Oh and by the way........I'd love for you to look in the faces of families whose loved ones have later been proven innocent after spending years in prison and speak of the wisdom you believe you possess.
Arrested and held over for trial = guilt??? Hmmmm.......that's intelligent. You better hope you are never arrested for something you didn't do.
Start with Dale Akiki, an innocent man who's politically motivated accusation kept him in jail for TWO years. Thank God he is a free man today.
Then look into the case of Stephanie Crowe.
After that, see if you can find any information on the father that was CONVICTED of raping his daughter some 8-10 years ago and was later exonerated by DNA evidence. I can't remember his name, but he was a naval officer.
I happen to have close family that is LE, but it doesn't blind me to the fact that LE and DA's are just as flawed as any other group in society.
I bet there is no one more anxious to see a guilty verdict than one Paul Pfingst and it has nothing to do with whether or not Westerfield is the right man.
Judge Mudd has told the Juror's to pay attention to body language and demeanor of the witnesses. Is he asking THEM to use "special abilities"? Are we supposed to be different?
I WAS born into the Military..married a Military man, spent my entire life moving from one country to the next...one town to the other. But I never was taught to believe "if the bastard is brought to trial, then he must be guilty"...I only have the Army and Air Force as models. I must have missed something?
On my own, I have decided that not only is Mr. Westerfield, NOT guilty, but that the parents and their friends had more than ample opportunity than DW to cause harm to the child. The whole lot of them were sleeze, at best.
Oh, and excuse me, for even thinking that because they are the VICTIMS they could also be the perps. [Whatever the verdict, I will always hold the parents Culpable for her death].
I'll even go out on a limb to say, that the word GOD was never spoken in the Van Dam house-hold, except in vein...they didn't belong to any church, untill a Defense Fund was set up for Danielle.
Yes, YaYa, there are many good people on this forum who are blessed with special gifts from GOD to discern if a man is guilty or innocent. These are gifts from the Holy Spirit..you want to laugh about it, go ahead.
You came in way too late for this Party. How easy it is to jump in with an opinion at the very end, when we've been at this for over 6 MONTHS. So you are WITH the majority of the MEDIA who do have an agenda going on here. But the rest of us, well, we're Jesus freaks?
Most of us have come to realize that the Jury is probably going to find him guilty. Doesn't mean we think he is.
Feldman is a DEFENSE attorney, BUT if you want a good example of what a Clinton Defense team looks like, just tune into Court TV and Nancy Grace and the rest of the Liberal Pukes.
Westerfield did something right in his life, at least he voted Republican.
sw
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I haven't heard anyone on TV discuss it, but I think Feldman is arguing not just for a hung jury, but for jury nullification. I would think all of us are against that practice, and would consider it an obvious act of desperation by any criminal defense lawyer. |
| Some 30 odd years ago a 12 year old girl, about 4'2" tall, was abducted and repeatedly raped. She was left for dead in a ditch, nude and bleeding. She managed to crawl to a house not far away. The lady called the police. The girl was able to identify her attacker. He was 6'4" tall and weighed about 200 pounds. As it turns out, the attacker was only 14 years old. Since he was a juvenile, he was not incarcerated, but instead was required to have psychiatric treatment. He decided he didn't want to go and simply quit. Nothing was done about it. Meanwhile the girl is having operations to repair her insides, and is not doing a very good job of coping with simple day to day activities. Her father took his gun, got in his automobile and drove to the boy's house. He was outside with about 4 or 5 of his friends smoking dope and having a good time. The father walked up to him, introduced himself as the girl's father and said you are going to die. He pulled the trigger and shot him. His defense attorney begged him to plead temporary insanity. He refused. He said, "I did it. I knew what I was doing and I'd do it again if I had to." He was given a long prison sentence. (don't remember how long) His wife divorced him, his daughter was never quite right again. If I had been on that jury, I would have never sentenced this man to prison. No I'm not against the practice of jury nullification. It has it's purpose.
JURY NULLIFICATIONJuries originally were introduced into England to protect the individual from the tyranny of government. The first case in which juries nullified a law was that of William Penn and William Mead in England in 1670 The jurors refused to convict the two Quaker activists charged with unlawful assembly. The judge refused to accept a verdict other than guilty, and ordered the jurors to resume their deliberations without food or drink. When the jurors persisted in their refusal to convict, the court fined them and committed them to prison until the fines were paid. On appeal, the Court of Common Pleas ordered the jurors released, holding that they could not be punished for their verdict. Jury nullification was introduced into America in 1735 in the trial of John Peter Zenger, Printer of The New York Weekly Journal. Zenger repeatedly attacked Governor William Cosby of New York in his journal. This was a violation of the seditious libel law, which prohibited criticism of the King or his appointed officers. The attacks became sufficient to bring Zenger to trial. He clearly was guilty of breaking the law, which held that true statements could be libelous. However Zenger's lawyer, Andrew Hamilton, addressed himself to the jury, arguing that the court's law was outmoded. Hamilton contended that falsehood was the principal thing that makes a libel. It took the jury only a few minutes to nullify the law and declare Zenger not guilty. Ever since, the truth has been a defense in libel cases. Several state constitutions, including the Georgia Constitution of 1777 and the Pennsylvania Constitution of 1790 specifically provided that "the jury shall be judges of law, as well as fact." In Pennsylvania, Supreme Court Justice James Wilson noted, in his Philadelphia law lectures of 1790, that when "a difference in sentiment takes place between the judges and jury, with regard to a point of law,...The jury must do their duty, and their whole duty; They must decide the law as well as the fact." In 1879, the Pennsylvania Supreme Court noted that "the power of the jury to be judge of the law in criminal cases is one of the most valuable securities guaranteed by the Bill of Rights." John Jay, the first Chief Justice of the U. S. Supreme Court stated in 1789: "The jury has the right to judge both the law as well as the fact in controversy." Samuel Chase, U. S. Supreme Court Justice and signer of the Declaration of Independence, said in 1796: "The jury has the right to determine both the law and the facts. " U. S. Supreme Court Justice Oliver Wendell Holmes said in 1902: "The jury has the power to bring a verdict in the teeth of both law and fact." Harlan F. Stone, the 12th Chief Justice of the U. S. Supreme Court, stated in 1941: "The law itself is on trial quite as much as the cause which is to be decided." In a 1952 decision (Morissette v United States), the U. S. Supreme Court recognized the powers of juries to engage in nullification. The court stated: "Had the jury convicted on proper instructions it would be the end of the matter. But juries are not bound by what seems inescapable logic to judges....They might have refused to brand Morissette as a thief. Had they done so, that too would have been the end of the matter." In a 1972 decision (U. S. v Dougherty, 473 F 2nd 1113, 1139), the Court said: "The pages of history shine on instances of the jury's exercise of its prerogative to disregard instructions of the judge." Likewise, the U. S. Supreme Court in Duncan v Louisiana implicitly endorsed the policies behind nullification when it stated: "If the defendant preferred the common-sense judgment of the jury to the more tutored but less sympathetic reaction of the single judge, he was to have it." In recent times, the courts have tried to erode the nullification powers of juries. Particular impetus for this was given by the fact that all-white juries in the southern states refused to convict whites of crimes against blacks. As a result there is a practice of judges to incorrectly instruct the jury that the judge determines the law, and that the jury is limited to determining the facts. Such an instruction defeats the purpose of the jury, which is to protect the defendant from the tyranny of the state. Judges or expert witnesses can determine the facts better than juries can. The purpose of the jury is to protect the defendant from the tyranny of the law. The problem with the all-white juries that refused to convict whites that committed crimes against blacks was not in jury nullification, but in jury selection. The jury was not representative of the community and would not provide a fair and impartial trial. In recent years, jury nullification has played a role in the trials of Mayor Marion Barry of Washington, DC for drug use, Oliver North for his role in the Iran-Contra Affair, and Bernhard Goetz for his assault in a New York City subway. In Les Miserables, Victor Hugo highlighted the difference between justice and law. The jury's responsibility is to deliver justice, not to uphold the law. Judges in Maryland and Indiana are required by law to inform the jury of its right to nullification. Article 23 of the Maryland Bill of Rights states: "In the trial of all criminal cases, the Jury shall be the judge of Law, as well as of fact, except that the Court may pass upon the sufficiency of the evidence to sustain a conviction." Nullification applies just as much in other states, including Pennsylvania. Article I of the Constitution of the Commonwealth of Pennsylvania states in Section 6: "Trial by jury shall be as heretofore (emphasis mine), and the right thereof remain inviolate." Section 25 states: "To guard against transgressions of the high powers which we have delegated, we declare that everything in this article is excepted out of the general powers of government and shall forever remain inviolate." Taken together, these two sections mean that juries shall have the powers that they had "Heretofore." i. e. when the Constitution was adopted. Judges usually do not inform the jury of this right. Even worse, some judges instruct the jury that it does not have the right to interpret or nullify the law, but only to determine the facts. |
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