Posted on 08/13/2002 10:12:33 PM PDT by FresnoDA
SIGNONSANDIEGO STAFF
and WIRE SERVICES
August 13, 2002
The fourth day of deliberations in the David Westerfield trial has ended with no conclusion by the jury. The jury will resume deliberations Wednesday morning at the San Diego County Courthouse. Earleir today, jurors asked to hear Westerfield's only recorded explanation of what he was doing the weekend 7-year-old Danielle van Dam was kidnapped.
Superior Court Judge William Mudd said he was granting a request from the jury for a tape recording and transcript of the taped interview Westerfield gave to police interrogation specialist Paul Redden on Feb. 4, two days after Danielle's disappearance.
During the interview, Westerfield makes a reference to "we" as he describes his meandering trip through San Diego and Imperial counties on Feb. 2 and Feb. 3.
"The little place we, we were at was just a little small turnoff-type place," Westerfield said.
Westerfield, 50, could face the death penalty if convicted of murder, kidnapping and a special circumstance allegation that the killing of Danielle van Dam occurred during the commission of kidnapping.
He is also accused of the misdemeanor possession of child pornography.
Jurors are in their fourth day of deliberations.
Mudd's disclosure came during a 10 a.m. open hearing on a request from KFMB-AM 760 to let River Stillwood, an assistant radio producer for talk show host Rick Roberts, back into the courtroom to cover the trial.
"She's out and will remain out and will not be permitted in for any live proceedings... because she is the representative of an individual who takes great glee and delight shoving it in this court's face," Mudd said.
Mudd ejected Stillwood from the courtroom on Thursday after asking her to tell him who told Roberts about the details of a Wednesday exchange between Mudd and the attorneys in the case during a sealed hearing.
Stillwood told Mudd that she didn't know who gave Roberts the information. On the air, Roberts later said he had received a call from a source in the courthouse.
The court is conducting an internal investigation, but cannot compel Roberts and Stillwood to name their source, Mudd said.
Stillwood can still sit in the pressroom and watch the video feed of any court activity, Mudd said.
KFMB was welcome to send someone else to sit in the courtroom, so long as the person was representing the radio station and not Roberts, he said.
KFMB's attorney Joann Rezzo argued that the disclosure did not violate the defendant's right to a fair trial. She also argued that Stillwood didn't give him "the source of the leak" because she didn't know who it was.
Before Mudd made his ruling, he invited comments from prosecutor Jeff Dusek, who managed only a wry remark.
"My inclination is to comment, but on advice of counsel, I I will submit," Dusek said, gesturing to his fellow prosecutor, Woody Clarke.
Defense attorney Robert Boyce told Mudd he was concerned about the integrity of proceedings. "They broadcast it, they knew what they were doing," Boyce said.
He called it "just another effort to sensationalize these proceedings."
Mudd told the media attorneys he welcomed the opportunity to make a "full and complete record" of his decision to eject Stillwood.
In his comments, Mudd made it clear he was still angry with KFMB television's decision to include a high school yearbook photo of Neal Westerfield during a telecast of the son of the defendant's testimony. Mudd had ordered that no television or print images of the adult, who is now 19, be transmitted.
The judge's inclination was to ban both the station's radio and TV representatives from the trial.
"Frankly, they seem to be the two networks in this community that just don't seem to get it," he said.
However, after his wife advised him to "sleep in it, " he gave the matter "serious thought," Mudd said.
He quoted a line from a Supreme Court decision in 1976 involving a press restraint issue in Nebraska.
" The extraordinary protections afforded by the First Amendment carry with them something in the nature of a fiduciary duty to exercise the protected rights responsibly--a duty widely acknowledged but not always observed by editors and publishers," Mudd said. "It is not asking too much to suggest that those who exercise First Amendment rights in newspapers or broadcasting enterprises direct some effort to protect the rights of an accused to a fair trial by unbiased jurors. "
Mudd said he was troubled by the host's decision to broadcast the information, knowing it was from a closed hearing.
The judge wasn't impressed by the host's justification that the general public was already aware of the issue, and that Stillwood was ignorant of the source.
He said the host wasn't conducting a search for the truth, but a grab for ratings. He also took the opportunity to lash out at "idiots from LA talk stations," who broadcast an afternoon program from a media compound outside the County courthouse. He said the members of the talk station were "acting like teen-agers" in front of the courthouse.
The judge acknowledged he could not control such behavior but could control his own courtroom.
The judge said officials from KFMB must be taking "great glee in shoving it in this court's face."
Fred D'Ambrosi, news director for KFMB-TV and Radio, said his television station showed only a high school yearbook photo of Westerfield's son.
"We didn't shoot him in court, which was the judge's order," D'Ambrosi said.
Regarding River Stillwood, D'Ambrosi said the issue was important because of the First Amendment and a free press. He added that he was not in charge of the Rick Roberts program.
"We're just trying to report the news and uphold the First Amendment," D'Ambrosi said. "If (Mudd) can ban River Stillwood, he can ban anybody." The news director suggested that the judge was angry because he didn't like the story that was reported.
D'Ambrosi said he had never spoken to Mudd, and called his reading of the situation "totally inaccurate."
Mudd said he had done a 180-degree turnaround on the issue of allowing cameras and reporters in the courtroom since deciding to allow Court TV to cover the trial live.
sw
Overreaching generalization, this serves to impeach your whole point.
Mr. Dusek has a theory about what that means, you know.
sw
It is not accurate to state that a juror is operating under a "presumption of guilt" after the prosecution has made its case. And a defendents decision to not testify and refute damaging testimony is something that most jurors will consider. (right or wrong) But it has nothing to do with presumption of guilt. It has to do with a damaging case being made, and a defendent's lack of ability to refute the charges.
You all have been doing a great job following & posting details of this trial!!!!
Superb sleuths :)
The single hair found which is consistent with Danielle was in the sink trap, and matched 12 out of 13 DNA markers tested. (Note: It takes a match of 25 markers to indicate a match of a maternal relative. Why did they only test 13 of those 25? They got 12 positives and stopped testing after the first negative marker? Why did the hair only match 12 out of the 13 tested, and possibly only 12 out of 25 DNA markers? How long had it been there? Why was it degraded to the point where they couldn't read more markers? Wouldn't someone's hair PERFECTLY match in every way their DNA profile?)
Other hairs could not exclude Danielle, but could be Brenda's or the boys'. Lots of color-treated blonde hairs were found, including on and under the bed's mattress, but none of Danielle's. They weren't tested to see whose they were. No hairs of Danielle's on the headboard, where Dusek said she banged her head repeatedly during the hypothetical rape scene. None of Danielle's DNA on that bed where Dusek said she met her demise. No blood spatters on the walls, no blood or Danielle's DNA on the comforter or sheets (but other hairs were there, not Danielle's).
Hairs that might have been Layla's were there, lots and lots of them. You know what that might indicate? That Layla dashed in the MH when it was open and on the street (or at the park) and Danielle followed her to get her out. Put her left hand on the side of the cabinet to look out the window or to steady herself while trying to drag out the overactive and stubborn dog (leaving one print in the entire MH), then left, Layla in tow. Plausible explanation, certainly.
The blood? Well, first of all, that tiny droplet was never tested to see if it was blood--it was just presumed to be so. (Yes, they do have tests to tell whether or not it is blood, human blood, or something else. They just didn't do them.) Secondly, kayti, I think, said that since Danielle was known to have frequent nosebleeds (as per Brenda's testimony), perhaps she dropped a bit of blood on the sidewalk on her way from the park back home. David Westerfield, loading motorhome parked at the curb, steps in that spot of blood from Danielle's nosebleed there on the sidewalk, and carries it to the carpet on the bottom of his shoe. Plausible explanation, certainly.
If there are two reasonable, plausible explanations to explain a piece of evidence, one pointing towards guilt and one pointing towards innocence, even if the "guilt" explanation is more intriguing or more plausible, the law says the jury has to, MUST, accept the plausible explanation pointing towards innocence.
Reasonable doubt.
Plausable? How long would the blood be "wet" enough for someone to step in it and then track it into the motor home? How many steps were required between the point he stepped in it and it reached the carpet? You're asking the jury to invent a defense.
The blame was put on an aging black pastor who had visited the company where the little girl was playing in the parking lot.
They found a drop of blood on his car/truck, and decided it must be him.
Later, they found out the blood was 'fish blood'.....not human blood.
The real culprit was later found.
There is no "prize," but the winner(s) get to be called "winners" and have the right to say "I told you so;" we're still negotiating about "neener neener neeners."
(Note: All times PDT; if this thread gets real long, you might want to send your choices via freepmail or post them on the Refugee site--often I quit reading them when they're very, very long. Additionally, I will be out of town most of the day today, and might miss your pings. Freepmail or Refugee site is best!)
Just an independent opinion, but I'd re-register under another aka if I were you. (Glad I'm not you!)
But hey, let's get to the real meat of the trial. Westerfield may indeed be guilty. I don't know the truth and neither do you. But I do know this:
1. The prosecution has failed to prove beyond a reasonable doubt that Danielle van Dam was abducted.
2. The prosecution has failed to prove beyond a reasonable doubt that Danielle van Dam was murdered. She died alright, but the prosecution has failed to state exactly how she died, if she died as a result of a homicide, manslaughter, or an accidental death.
3. The prosecution has failed to prove beyond a reasonable doubt that DW was ever in the van Dam residence.
4. The prosecution has failed to prove beyond a reasonable doubt that DW was ever on their contingent property at any time. Of course there is always the possibility that DW was delivering the "mail" while Damon was at work, but we don't know that for a fact.
5. The prosecution has failed to prove beyond a reasonable doubt that DW abducted Danielle van Dam.
6. The prosecution has failed to prove beyond a reasonable doubt that DW murdered Danielle van Dam.
7. The prosecution has failed to prove beyond a reasonable doubt that DW dumped the body of Danielle van Dam after having supposedly killed her.
Now you and the executioner Greg Weston can slap each other on the back until you're silly but you can't rebut anything I just said. If you want to convict him on circumstanstial evidence, be my guest. But the burden on the prosecution was to prove his guilt beyond a reasonable doubt and they failed to do so.
Any verdict of guilty, in my opinion, will be the result of a generalized hysteria sweeping this country involving child abductions and child pornography. That is not to say that we as parents shouldn't be concerned about the welfare of our progeny, but when someone's life is on the line, we should exercise our best judgment and and make every effort to force the prosecution to prove their case beyond a reasonable doubt.
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