Experts see fertile ground for appeals In Westerfield Trail

The grounds for appeals in the David Westerfield case could cover everything from how jury summonses were sent at the trial's beginning to the unusual sequence of events that ended in 12 jurors voting for the death penalty.

Legal experts in death-penalty work said the way the Westerfield case was tried provides fertile ground for an appeal, which is automatic because it is a capital case.

The goal of the defense is to find a solid reason that appellate judges should throw out the guilty verdict or at least the death recommendation. If successful, such cases are sent back to the original courts for new trials.

Issues that could be raised in the Westerfield case, legal experts said, could be as visceral as the pornographic images of children shown in the darkened courtroom, or as tedious – though important – as the instructions Superior Court Judge William Mudd read to the jury on the law during both phases of the trial.

A study of death-penalty convictions nationally from 1973 to 1995 found instructional errors were the third most common reason convictions were overturned. The study of more than 5,000 cases found that 68 percent of the death decisions were reversed on appeal.

"The kinds of issues appeals courts really get into are the jury instructions and jury issues," said defense attorney Michael Pancer. "Those are key issues, because they taint the whole verdict."

Crucial area Some possible appellate issues, such as the admissibility of physical evidence or the testimony of some witnesses, prompted objections during Westerfield's trial on kidnapping and murder charges and were ruled on by Mudd. Those rulings can be targeted by a new set of lawyers, who can try to convince appeals courts that the judge erred.

For example, Mudd's decisions regarding the pornography found on Westerfield's computer in his Sabre Springs home could be a crucial area, said Marjorie Cohn, a professor at Thomas Jefferson School of Law.

Mudd initially allowed prosecutors to use about a dozen images after he weighed the value of the evidence against its potentially prejudicial effect against Westerfield.

Lead defense attorney Steven Feldman implied during the trial that the images shown in court were the only ones police found in Westerfield's home that could be considered child pornography or obscene. An angry Mudd, contending Feldman was trying to mislead the jury, ruled prosecutors could bring in thousands of other images.

Cohn said Mudd "flew off the handle" and might have made a mistake. "That would be a good appellate issue, of him letting it all in," she said.

Defense attorney Pancer agreed that the pornography issue could be pivotal. Lawyers could argue the images were so powerful that they affected the result. Jurors said the pornography provided a motive for the abduction and slaying of 7-year-old Danielle van Dam.

"The argument is going to be (that) the prejudicial value of the evidence outweighs the probative value," Pancer said.

Defense attorney Christopher Plourd, who has worked on eight death-penalty cases, said appeals lawyers could challenge the very system that gathers potential jurors.

Plourd said that so many people do not even bother to respond to jury summonses that the potential pool of jurors is not representative of the community.

"The demographics get skewed; you're not getting a fair cross section and that becomes an issue," he said, noting that Feldman raised the issue and Mudd rejected it.

Media onslaught Once the jury was selected and the trial began, other issues surfaced. The overwhelming media attention and publicity surrounding the case – on television and radio, in print and on the Internet – was unprecedented for the county.

Throughout the trial Mudd declined defense requests to sequester the jury. Instead, he urged the panel to "self-police" – to avoid reports on the case as they went about their lives.

There is no indication that jurors did not heed that admonition. Those who have spoken publicly said they had no trouble policing themselves against the media onslaught. But Cohn said an appeals lawyer could argue that Mudd should have been more assertive.

"This trial received more publicity than any other trial in San Diego," she said. "It was impossible to stay away from any discussion. Mudd put the burden on the jury to tell him if they wanted to be sequestered. He abdicated his judicial role to protect the jury."

There also are questions about the events that led to the panel's decision in the penalty phase. Through notes sent to Mudd, jurors indicated before lunch Monday that they were deadlocked.

But a note delivered as the lunch break ended, and before they were placed in the jury room to deliberate, said they wanted more time to talk. Ten minutes later, they announced they had a verdict.

Feldman asked for a mistrial, saying it appeared some jurors might have been discussing the case over lunch – a violation of a court order not to talk about it unless everyone was present in the deliberation room. Mudd denied Feldman's motion.

Finding out what happened will be up to lawyers and investigators as they speak to jurors. Sometimes, these interviews take place years after the case is over, said Justin Brooks, head of the California Innocence Project who has worked extensively on death-penalty appeals.

"I've gone back and interviewed jurors while doing appeals and found unbelievable things they will say happened in deliberations," he said. This includes considering information they heard or read that was not part of the trial, Brooks said.

One issue experts said likely will not go far on appeal is the suggestion that Feldman, by moving quickly to trial, gave Westerfield legally deficient representation. That claim, known as ineffective assistance of counsel, is made often in appeals.

Pancer pointed out that the law says that if an attorney makes a tactical decision – such as rapidly going to trial – it can't be attacked as ineffective assistance, no matter the result.

'Justice was served,' says grandmother

http://www.signonsandiego.com/news/metro/danielle/20020822-9999_1n22grandma.html

By Kristen Green
UNION-TRIBUNE STAFF WRITER

August 22, 2002

Danielle van Dam's grandmother was at work in a retirement home near Gainesville, Fla., yesterday when she heard the jury had reached a verdict.

Joan Cope turned on the television in a resident's room and searched for a station broadcasting the news. She learned that David Westerfield had been convicted of kidnapping and murdering her only granddaughter.

"I was so happy, I cried," she said.

Her husband, Thomas, and son, Thomas Jr. – Brenda van Dam's father and brother – were watching elsewhere.

"My husband cried," Cope said. "My son cried."

Danielle's parents, Brenda and Damon van Dam, are prohibited from speaking about the verdict because of a gag order on witnesses in the case. The grandmother is the first relative to speak for the family.

Cope said that when she got home from work, she again watched the verdict on television. When Thomas arrived, they replayed it on the computer three times.

The verdict brought them peace.

"It doesn't bring our baby back, but justice was served, and that man can never hurt anyone again," Cope said.

She talked with Brenda on the phone yesterday and said the family was relieved.

The Copes flew to San Diego after Danielle disappeared Feb. 2 to support the family. They visited again this summer, attending two days of the trial. Brenda's brother wants to return in September to commemorate what would have been Danielle's eighth birthday.

Cope said she hopes that the jury will sentence Westerfield to death. Danielle, she said, "got the death penalty."

"He's taken someone so precious to us," Cope said. "She was a very strong little girl, and she was fighting for her life."

Then, Cope added: "I really want him to have to think about what he's done to her . . .
That was my angel."

Kristen Green: (619) 542-4576; kristen.green@uniontrib.com

Parents in Sabre Springs say slaying has left an imprint of caution

By Blanca Gonzalez and Elizabeth Fitzsimons
UNION-TRIBUNE STAFF WRITERS

September 17, 2002

Cheryl Carlson doesn't take anything for granted anymore. Eight months ago, she wouldn't have thought twice about letting her daughter, Savannah, walk down the street, just a few houses away, to play with a friend. But it is different now in her Sabre Springs neighborhood.

Danielle van Dam, one of Savannah's friends, was murdered by David Westerfield eight months ago, and yesterday a jury recommended he die for the crime. Carlson said her gut reaction is to be happy with the death penalty verdict and that Westerfield won't hurt anyone else.

Many parents in the north San Diego neighborhood want to put the ugly tragedy behind them, but they know it won't be easy.

"The kids don't play outside as much," Carlson said. "We are a lot more cautious than we used to be."

Parents picking up their children yesterday afternoon at Creekside Elementary, where Danielle attended school, had mixed reactions to the verdict. Some offered a curt "happy" or "great" and moved on. Others wrestled with their feelings about the death penalty.

"I'm Catholic, so it's hard for me," said Emily Lee. "(Westerfield's) crime was horrific. . . . I'm torn."

Like Carlson, Lee believes Danielle's kidnapping and murder will leave a lasting imprint on parents.

"We were so alarmed," Lee said. "We have become very careful, more vigilant about everything."

Caroline Maas, mother of three, was surprised by the death verdict.

"I thought life (in prison) was a possibility . . . if you compare him to someone like Charles Manson." Maas said that even though she didn't know Danielle, she thinks of her every day and echoed those who said justice was served.

Vicky Hoey said she has struggled with the death penalty for years.

"I'm just glad I wasn't on that jury," said Hoey. "My heart goes out to the van Dams, of course. I hope this brings them some measure of peace . . . although I don't know how."

Hoey and other parents said they are ready to move on.

"I'm very happy with the decision," said Holly Vitrano, whose daughter had been in Danielle's class. "I'm glad to put this behind us."

Frederick McClelland, a lawyer whose son had been a classmate of Danielle's, said justice was done.

"If he wasn't guilty, you would have seen more of a normal reaction from him," he said, referring to Westerfield's expressionless demeanor when the verdict was read.

Epitachio Cruz, who was picking up his 6-year-old grandson at Creekside, agreed. "He's guilty, so I'm with the jury. I think he got what he deserved."

After the verdict was read, there were two patrons at Dad's Cafe and Steakhouse, the Poway bar and restaurant where Brenda van Dam was seen the night before Danielle was reported missing.

Bill Wallner, 59, of Poway was sitting at the end of the bar drinking a pint of beer and playing an interactive video game. He expressed surprise at the verdict.

"I heard one juror was the last to go along with the conviction. . . . You gotta kinda wonder what was going on with that juror," said Wallner. "I'm sure we are now going into the phase of appeal No. 1, appeal No. 2, appeal No. 3 and so on. . . . The fat lady is not even in the county."

Ken Worley, 67, of Poway said he believes the justice system works.

"They were thorough and they sure took their time," Worley said of the jury. And he was critical of the media that covered the case. "I thought it was ridiculous the way they swarmed over here when the (guilty) verdict was read."

Yesterday, satellite trucks and TV news vans again camped on the van Dams' street. In the late afternoon, when Brenda and Damon van Dam pulled into their driveway with their two sons, reporters and cameramen rushed to surround the family.

Someone yelled "How do you feel?" Brenda van Dam said, "Relieved." The van Dams said they would make a statement today at La Jolla Shores, Danielle's favorite beach, where a memorial was held for her in March.

Earlier, a couple from Michigan toured the neighborhood. Bill and Karen Bouman had been following the case on Court TV and, while staying at the Lawrence Welk Resort north of Escondido, decided to "see the sights," Bill Bouman said.

They had a look at Westerfield's home and the van Dam home. After looking around, Karen Bouman said, "It just doesn't look like a neighborhood where something like that would happen to a little girl."

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