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Defense Feldman: Danielle Van Dam Knew Her Abductor: Dusek, Still Talking...Westerfield Waiting
Union Trib ^ | August 8, 2002 | Steve Perez/Greg Magnus

Posted on 08/07/2002 7:08:12 PM PDT by FresnoDA

Defense rests; each side puts its spin on evidence

By Steve Perez and Jeff Dillon
SIGNONSANDIEGO

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.

Photo"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."

Return to recovery scene

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.

 

Bug evidence

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?' "

 

Debunking kidnapping theory

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."

 

 

Prosecution's final turn

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.

 


TOPICS: Society
KEYWORDS: 180frank; vandamswingers; westerfield
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To: theartfuldodger
By reading law school texts, past experience with the courts and knowledge gained from that, and taking a bar prep course. I should have little trouble passing the exam.
281 posted on 08/08/2002 9:45:13 AM PDT by connectthedots
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To: gigi
No, the jury doesn't get the opening & closing arguments.
They get the jury instructions, and anything admitted
into evidence.

If they have a question about anyone's testimony, they
send a note to the judge, then everyone assembles in
the court room for the readback(s).
282 posted on 08/08/2002 9:45:17 AM PDT by the Deejay
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To: shezza
MH hadn't been in neighborhood since the holidays. It was not there that week, or every weekend, or every day. For the transfer theory from DVD taking the evidence into the motorhome, it just doesn't wash. She had her hair cut to 8 inches. We've got charts that show the length of the hair found in there. NObody had seen her in the motorhome. People are around, the girlfriends, the daughters of the girlfriends, the son, nobody ever saw her in there. That door is hard to open for a 7-year-old.
283 posted on 08/08/2002 9:45:52 AM PDT by shezza
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To: shezza
YOu must believe she went inside and went all over the motorhome, taking her blue fibers to the front, to the rear, where she bled. No explanation given. Fingerprints, hair, blue fibers, dog hairs, and the blood. And the blood. What was going on in there? There is no reasonable explanation except for guilt, none.
284 posted on 08/08/2002 9:47:30 AM PDT by shezza
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To: connectthedots
I wish you success.
285 posted on 08/08/2002 9:47:54 AM PDT by theartfuldodger
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To: shezza
Too many types of evidence, too many numbers, to be anything other than guilt. Hair in sink of bathroom with root...how did that get there?
286 posted on 08/08/2002 9:48:22 AM PDT by shezza
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To: contessa machiaveli
Don't you just love it?

They're always telling people to read the threads, as if their ramblings are evidence.

You just have to laugh at them.
287 posted on 08/08/2002 9:48:30 AM PDT by EllaMinnow
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To: contessa machiaveli
What overwhelming evidence do you mean?

All of the evidence and testimony has been discussed and it's meaning and probability for accuracy determined.

Lawyers are conducting CLOSING ARGUMENTS, in which no cross examination is allowed. THis means they are giving totally one-sided arguments. Are you listening to closing arguments? Have you listened to both sides?

Do you think DW is guilty?

Do you think the jury will find him guilty?

Did the cadaver dogs hit on the Motorhome?

Were the two small spots (one in the MH on the carpet, one on DW's jacket) tested and proved to be BLOOD?

What were the results of the DNA test on those spots? What kind of test was done on the hair found in the MH? What does that test prove?

288 posted on 08/08/2002 9:49:14 AM PDT by UCANSEE2
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To: shezza
The drycleaner...the receipts...what's going on? Shows up at the crack of dawn in his underwear with the comforters and the pillow shams. The receipts are off, but the evidence is here.
289 posted on 08/08/2002 9:50:00 AM PDT by shezza
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To: contessa machiaveli
Thanks, have a nice day.
290 posted on 08/08/2002 9:50:11 AM PDT by Jaded
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To: shezza
(shezza: In his underwear? Oh, Jeff, Jeff, Jeff.)

Rely on the evidence. This evidence alone is enough to convict.

291 posted on 08/08/2002 9:50:43 AM PDT by shezza
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To: connectthedots
A good homeschooler. The best of luck to you.
292 posted on 08/08/2002 9:50:46 AM PDT by Lucky
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To: redlipstick
Hello, Dipstick...you sure don't mind reading the threads? You're quite a groupie..girl.

sw

293 posted on 08/08/2002 9:50:47 AM PDT by spectre
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To: contessa machiaveli
i can't figure out how intelligent people on this thread are able to ignore the overwhelming evidence

I agree that the evidence is to me overwhelming but I disagree with your inference that those who conclude differently are unintelligent people.

I believe the outcome on deciding differently is that those who disagree with you and I is they have taken each piece of physical evidence separately and have found a possible innocent explanation. If you do this one at a time then you are left with no evidence.

You and I are probably looking at the existance of the combined total of physical evidence and saying "I cannot come up with a reasonable explanation that is innocent". We end up deciding between what I call the "Big Bad Wolf" vs "Goldilocks" to explain the sum total of the evidence.

Those who disagree with us will take you to task for each and every single item of evidence and individually find a contrary explanation for each piece.

That is why the rope analogy and the guy cheating at 21 examples done by Dusek were important. In his game of 21, the card player won every hand and the chances of him doing that without cheating is nill. But taken one hand at a time its possible that each he could win each individual hand. But common sense tells you that you have to be cheating if you win dozens of hands.

294 posted on 08/08/2002 9:51:14 AM PDT by VRWC_minion
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To: UCANSEE2; nycgal
I was just checking trial transcripts. Damon says that when he went to say goodnight to Danielle she was already in bed with the covers all the way up to her neck so he didn't see what she had on. Something is very wrong here.
295 posted on 08/08/2002 9:51:16 AM PDT by the-gooroo
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To: connectthedots
Feldman would have motive, but my bet would be on Brenda

If it was Feldman, River would have given him up. I agree, it's Brenda.

296 posted on 08/08/2002 9:51:39 AM PDT by nycgal
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To: bvw
Interesting analysis of Feldman's closing. Thanks.
297 posted on 08/08/2002 9:52:15 AM PDT by sunshine state
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To: UCANSEE2
The last person I asked in here today to explain in a reasonable manner how David did this left... without reply. Surprised me, I tell you!!
298 posted on 08/08/2002 9:52:27 AM PDT by Jaded
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To: shezza
This jacket is the smoking gun. Danielle's blood is on that jacket. And after hearing all of the closing arguments, this wasn't touched at all. Give me an explanation of how it got there. YOu didn't hear one, not one. THe attack was that there were no photographs, except for maybe a Polaroid. Danielle's blood on his jacket. No dispute, no defense evidence that it was not her blood. THe smoking gun. THere is no explanation except that he did it.
299 posted on 08/08/2002 9:52:51 AM PDT by shezza
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To: the-gooroo
Don't pay attention to the man behing the curtain.
300 posted on 08/08/2002 9:53:45 AM PDT by Jaded
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