"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.
I don't disagree.
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.
V, I like you and have respect for you. You have 'stuck' in there and provide backups for your statements. Sometimes you make me think you are still 'inexperienced' with the world.
The REASON the FED GOVT has a very high conviction rate is also the same reason the SD DA has a high conviction rate. THEY CHEAT.
It has been in the news over the past year that the FBI TESTING LABS were giving POSITIVE results on tests whether they were actually POSITIVE or NEGATIVE.
Not that hard to win when you cheat all the time.
Don't really believe that as I do not believe she was in pj's but still in the clothes from the passport pic that were not found on her floor.
This is a hit and run post before leaving...have a great weekend everyone!
**FREE HAZMAT DAVE**FREE HAZMAT DAVE**FREE HAZMAT DAVE**
One Stealth Ninja Dave you can render your verdict in the Jury Room.
I hope you're right.
We could have been spared the Trial by Jury and just consulted you!! Knock, knock!
sw
Trust me, cheating is not the reason they ussually win.
No direct Evidence. Lot's of 'invisible' evidence, including black boots, blue blanket, etc.
Fiber evidence that COULD or COULD not be proof.
Hair found in MH sink trap. 1 Hair. Could be any of the VD's including Brenda.
2 spots which were not proved to be blood, just presumed to be. DNA matched 12 of 13 markers. Takes 25 matches to be conclusive. TESTS had to be faked, experts had to mislead jury into believing 12 of 13 means perfect match.
We don't know how he got in, if he got in, how or where he got to Danielle, where he took her, what he did.
All we know is SHE IS DEAD, and therefore HE IS GUILTY!
Shezza, a huge "thank you" for posting the live trial transcripts. You have been amazing.
sw
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