PROSECUTORS TO SEEK DEATH PENALTY IN WESTERFIELD CASE

Union Tribune/KFMB ^ | April 25, 2002 | Harry Jones

[FresnoDA]

Westerfield hearing could be focused on death penalty

By J. Harry Jones
UNION-TRIBUNE STAFF WRITER

April 25, 2002

A San Diego Superior Court hearing has been scheduled for 9 a.m. today for David Westerfield, the Sabre Springs man accused of kidnapping and murdering 7-year-old Danielle van Dam.

The attorneys involved in the case are prohibited from discussing it because of a gag order, but it is possible that prosecutors will announce whether they will seek the death penalty against the self-employed engineer.

His attorneys have insisted on Westerfield's right to a speedy trial, which is scheduled to begin May 17. He is being held in County Jail without bail.

After Westerfield's arrest Feb. 22, prosecutors filed special allegations in the case, accusing him of committing murder during a kidnapping, which gives them the option of seeking his execution if convicted.

District Attorney Paul Pfingst has a protocol on reaching a decision that usually takes several months; the case is reviewed by a panel of senior prosecutors. Defense attorneys also have the option of meeting with Pfingst.

It has been just over two months since the charges against Westerfield were brought, and because of the gag order it has not been possible to determine whether the panel made a recommendation or if Westerfield's attorneys met with Pfingst.

The district attorney makes the final decision. If he chooses not to seek the death penalty, Westerfield would face a maximum sentence of life in prison without parole.

Danielle's family lived two doors from Westerfield. Her parents reported her missing Feb. 2, and police quickly focused on Westerfield as the prime suspect.

Prosecutors said DNA testing proved that blood found on some of Westerfield's clothing and in his motor home was Danielle's.

Volunteer searchers found the girl's body Feb. 27 east of El Cajon in a stand of oak trees just off Dehesa Road. The cause of death has not been determined because of decomposition of the body, officials said.

[Amore]

Dusek is seeking the death penalty, but refuses to turn over critical materials to the defense. Feldman has to go to the police station to view alleged porn..Dusek says he cannot legally copy this information for the defense.

Here's another piece of legal info, although I'm sorry it doesn't fit the DA-is-evil-and-crooked theory. The DA is NOT stalling. As I explained on another thread here early on, but apparently it has been forgotten, Dusek is correct. United States v. Kimbrough, 69 F.3d 723 (5th Cir. 1995), cert. denied, 517 U.S. 1157 (1996) (“Child pornography is illegal contraband” and despite general rules about providing discovery, it cannot be distributed to, or copied by, the defense; the government's offer to make the materials available for inspection but not to allow them to be copied was reasonable).

[Jaded]

I think that all along they've wanted it to be a DX case. That was an option when they arrested him 5 days before the body was found.

Other question though. In the PH, Dusek was saying essentially that he thought Defense should have asked for more time, and apparently he didn't like the speedy PH/trial that Feldman was pushing for. Why do you think that is? Why would he have questioned it at the PH, when not all of the results were back? Was he unsure? Since they are still under gag, and if Pfingst ask for DX, people will assume that he has a lock. He's connecting the same dots he used when the equation was porn=murderer, while tossing out all of the other relevant variables.

We shall see what happens. Just hope they have their ducks in a row if that is indeed the direction they are going. I just don't see it in the scenario they've given so far. JMO.

[Jaded]

Well, that says it all. Let's have a show of hands, who is surprised? (hands placed firmly on keyboard.)

[spectre]

It's really sort of pathetic to watch the sophmoric antics by the Prosecution.

Feldman is a great Defense Attorney, one of the few I respect. Most of the others are in a class of a "dime a dozen". Good thing DW wasn't dumb enough to hire one of those.

sw

[Amore]

I’ll give you my thoughts. This is a big, big case, and cases like this hardly ever go to trial without some continuances (extensions of time) being granted first. Many people here have remarked, I think correctly, that Feldman’s obvious theory all along was to push this to trial ASAP in the hopes of catching the state unprepared. It’s very difficult (and rare) for the state to prepare such a big case in such a short amount of time. You know, they do actually have other cases to deal with! OTOH, I suspect old Feldman – now being paid with all you lucky Californians’ taxpayer dollars – has done nothing but work this particular case since he got it. Plus how ever many associates, secretaries, legal assistants, and investigators the taxpayers are also paying for. I’m sure the state is having a hell of a time keeping up. After all, they are the ones who have to actually prove the case. Feldman could sit there and do nothing, put on no defense of his own. He won’t (but he could), and it’s the state that is really under the gun on this one. I think it’s quite a smart strategy. But that’s what it is, it’s a strategy, a calculated decision, and it seems to be working well. Plus, just as a side benefit, he gets to point fingers at the state and say that they are dragging their feet. It’s win-win for Feldman!

[afraidfortherepublic]

Something does not ring true here, and I'm not writing off culpability on the VanDam's part.

Dittoes!

[vacrn]

bump

[mewzilla]

Is it just me, or is this trial proceeding at an unusually fast pace?

[Mrs.Liberty]

It is not you. Defense wants to get rolling before Prosecution can discover more evidence or get more results back on DNA evidence.

[BunnySlippers]

I noticed the judge said he had never heard of a death penalty case being heard in 60 days. They still haven't asked for an extension.

[FresnoDA]

No telling what this is about.....could be RR spin???

 

Breaking News Expected Today in the Danielle Van Dam Murder Case Stay tuned to the Rick Roberts Show beginning at 3pm today.

PROSECUTORS SEEKING DEATH FOR WESTERFIELD

( 04-25-2002 ) - David Westerfield looked away with a blank stare as prosecutors made it official that they will go after the death penalty if he is convicted of killing Danielle van Dam.

Lawyers said they had given, "full and careful consideration" to the decision.

Westerfield, in court Thursday dressed in a coat and tie, is charged with murder with the special circumstance of murder during a kidnapping, making his case eligible for the death penalty.

His attorney, Steven Feldman, took exception to the timing of the announcement. He says he knew long ago that prosecutors would seek the death penalty, but would wait to announce it to try and force a continuance in the case, which is currently scheduled to go to trial in May.

But Judge William Mudd didn't agree. He feels prosecutors took a reasonable amount of time to make such an important decision and they announced their decision as soon as they made it.

However, Judge Mudd is concerned with the propinquity of the announcement to the trial date. He says he's never seen a death penalty case go to trial so quickly and that the fast approaching trial date is on a collision course, with both sides still investigating their cases and going through discovery.

Westerfield's attorney's made it clear that they have no plans to ask for a continuance.

Also discussed in court Thursday, were the questionable photographs found in David Westerfield's computer files.

Westerfield's lawyers say they want copies, but the law specifically says copies can't be made of illegal photographs. So the defense will have to look at the photos at police headquarters.

And because of the gag order that's in place, attorneys are not able to talk to the media and TV cameras will not be allowed in court until the trial.

David Westerfield's next appearance in court is scheduled for May 6, where attorneys will argue pre-trial motions. But as of now, this trial will begin on May 17.

[Jaded]

Maybe Feldman has the ace up his sleeve.

Calling Amore, calling Amore. I know that the prosecution has to turn over evidence and stuff in discovery. You could probably explain exactly what. But does defense have to turn over what they find? And how much of it?

[FresnoDA]

Updated 2:40 pm  April 25, 2002 Westerfield to face death penalty

By Alex Roth
UNION-TRIBUNE STAFF WRITER

April 25, 2002

The District Attorney's Office will seek the death penalty against David Westerfield, the Sabre Springs man accused of kidnapping and killing his 7-year-old neighbor, Danielle van Dam, it was announced Thursday.

Prosecutor Jeff Dusek told Superior Court Judge William Mudd today that District Attorney Paul Pfingst made the decision after reviewing the evidence and meeting several times with Westerfield's lawyers, most recently last week.

"After careful consideration and judgment, he's decided to seek death in this case," Dusek told the judge during a hearing this morning.

One of Westerfield's lawyers accused prosecutors of seeking death as a tactical decision so the defense would be forced to seek a continuance of the trial, now scheduled to begin May 17. Dusek denied the allegation.

Death-penalty cases usually place enormous burdens on a defendant's lawyers, who must extensively research their client's background to prepare for the possibility that they might have to ask a jury to spare his life.

"It's obvious that it's a strategic decision designed to force Mr. Westerfield to compromise his right to a speedy trial," attorney Steven Feldman told the judge.

Feldman said his client, a 50-year-old twice-divorced engineer who lived two doors away from Danielle and her family, had no intention of seeking a delay in the case. Westerfield is eligible for the death penalty because he is charged with the special circumstance allegation of committing murder during a kidnapping.

Pfingst's decision marks the 15th time he's opted to seek the death penalty since he took office in 1994, according to the District Attorney's Office. In nine of those cases, jurors returned a death sentence.

Also yesterday, the judge denied a request by Westerfield's lawyers for copies of computer images seized from Westerfield's house. Prosecutors, who believe Westerfield kidnapped the girl for sexual purposes, say some of these images are child pornography that can't be legally copied and distributed, even to a defense lawyer in a criminal case.

The judge ruled that Westerfield's lawyers could view the images in a special room in the police department, where they would be granted total privacy "in a setting unfettered by law enforcement or any other individuals."

---

One question.  How did Westerfield get inside of the VD home to abduct this child?  Where was The Damon????

[UCANSEE2]

Another question.

The area on Dehesa Road had already been searched. Then, some 'volunteer' had a 'hunch' and went back to the area ALREADY SEARCHED and VOILA!, found Danielle's body.

This was FIVE DAYS AFTER Westerfield had been arrested.

So, WHO PUT THE BODY THERE ???????, it wasn't DW.

[UCANSEE2]

Here, I found the guy.

Garcia, Bill, private investigator who coordinated the 20 person volunteer group that searched the area of Dehesa road "on a hunch", finding the body of Danielle van Dam around 2:15 p.m. Wednesday, Feb. 27 after another search party had checked the site on Saturday.

[fnord]

Prosecutors, who believe Westerfield kidnapped the girl for sexual purposes, say some of these images are child pornography that can't be legally copied and distributed, even to a defense lawyer in a criminal case.

Wonder if this is just another gambit by the DA to create the impression (real or not) that DW is a pervert. "Oh my, these pictures are so bad we are prevented by law from even making a copy of them!" But I bet they have made a back up copy, just in case.

And it raises the question: Will the jury be able to view them? And if not, how can they possibly convict on that charge?

Still looks like the DA is doing his damnedest to taint this case in the media, in hopes of getting it moved (out of his jurisdiction, and before the election).

[MizSterious]

Also consider this one. On another board, they're talking about a question that reporters have not asked. "Do the van Dams have a membership at the Sycuan casino? And if so, have they used their membership card?"

The answer is yes to both questions, from a reliable source. So, if a membership Mr. Westerfield never used is considered damning evidence that he is the one who dumped her body there, then what does that make this little tidbit of information? Add to that Damon's mountain bike hobby, with the trails it is said he used quite near where they found Danielle's body, and it can kind of make you go "hmmmm..."

[FresnoDA]

hmmmmm....!!! You go Miz.....!!

[Jaded]

And how long was he in the house and what time did he leave?

[Jaded]

On this other board, there was a statement about that the classification of the porn as child porn really was very subjective. Just because the SDPD officer that looked at it and said yes, was apparently contradicted by other officers. It's all in they eye of the beholder, when the pics in question are border line NOT pre-pub children. Is it me or do others have trouble conneting the dots in this scenario?