Defense could pin hopes on insect life

In the first four weeks of David Westerfield's murder trial, jurors were schooled in scientific evidence such as blood and DNA, fingerprints and fibers. Now they'll get a crash course in the life cycle of flies.

Westerfield's team of lawyers is expected to launch his defense this week, and lead attorney Steven Feldman has hinted that he will use insect biology to prove 7-year-old Danielle van Dam died after police and reporters began tracking his client's every move. That would mean Westerfield couldn't have killed the child.

"This would be very powerful evidence," said San Diego criminal defense lawyer Michael Pancer. "I can't think of what the state would say if this point were pinned."

Using forensic entomology, scientists can estimate when the girl died by determining the age of insects, generally flies, found on her body.

"They generally get to the body before police do, and they lay eggs," said Bernard Greenberg, professor emeritus of biological sciences at the University of Illinois at Chicago.

Because of the gag order in the case, no one can provide a timetable for witnesses, clarify facts or discuss strategy.

Feldman has raised the possibility that Danielle may have been killed up to two weeks after her mother reported her missing. Her body was dumped in a brushy rural area in East County.

"You're going to be convinced beyond any doubt that it was impossible, impossible for David Westerfield to have dumped Danielle van Dam in that location," he said on the first day of the trial.

Death's timetable

Forensic entomologists believe they can narrow that window of death, and coroners don't disagree.

Forensic entomology, the use of insects in legal cases, has gotten a boost in mainstream recognition from crime television shows such as CBS' "CSI: Crime Scene Investigation," whose main character frequently uses insects to solve crimes. NBC's "Crossing Jordan" also has an insect expert, nicknamed "Bug," in the cast.

In the real world, the application of forensic entomology to crime investigations has become more common since it was introduced in the United States in the 1970s.

Insect biology has been used in a number of San Diego County cases, including that of Daniel Rodrick, who was convicted in 1997 of killing his wife. An entomologist's testimony helped narrow the time that the victim's body probably was dumped in Pala.

The reason attorneys frequently use entomology is that establishing the time of death is difficult for medical examiners, said San Diego insect expert David Faulkner.

A medical examiner relies on three factors to make an assessment, Faulkner said: the amount and distribution of rigor mortis, the change in body temperature and the degree of decomposition. But after several days, rigor mortis dissipates and the corpse assumes the temperature of its environment.

Insects can give more specific information because they have a definitive development period that can be meticulously measured, said Faulkner, who collected insects during Danielle's autopsy and is listed as a potential witness by the prosecution and the defense.

He said his testimony will probably be more useful for the defense, but added the gag order prevents him from discussing his findings outside court.

Faulkner described the collecting of insects from a body as painstaking, similar to the collecting of other scientific evidence.

Generally, he said, forensic entomologists go where a body is found and remove insects from the corpse and areas under and near it. They frequently focus on flies, but also look at other insects, including ants and beetles.

Most of the insects are preserved with alcohol so they can be studied later, Faulkner said. Some of the larvae collected are placed in containers with a piece of liver so they can grow to adulthood, which enables scientists to identify each insect with certainty.

The scientists gather climate data, such as daily temperatures and precipitation measurements, for the time the victim was missing.

Weather is important because a fly's development varies according to conditions. Humidity and daytime highs help forensic entomologists better pinpoint the time flies complete a life cycle.

Fly's life and times

Flies have a brief life span in warm weather, as short as 21 days. But they can live six months in colder weather.

They are attracted to the corpse's smell, and either lay eggs or deposit larvae. In about a day the eggs hatch into larvae, or maggots, which live on the dead tissue and develop quickly.

Depending on the species and temperature, eggs reach maturity, or the pre-pupal stage, in five to 12 days. From eggs, maggots feed on and then migrate from the body to form the pupal stage, similar to the cocoon stage of the butterfly.

After it leaves the body, a maggot shrinks in size, and the outer covering hardens into what looks like a miniature football. The adult fly develops in that football, called the pupae.

On average, it takes 14 to 24 days for the eggs to reach adult stage, depending on weather.

The longer a body has been left outside, the less precise an entomologist's estimated time of death.

A number of factors can delay insects from reaching a body. For example, burial in a shallow grave, strange weather or wrapping the body in a blanket can delay detection by insects for a few days.

"They'll get there, but they're not going to get there as quickly," said M. Lee Goff, one of eight certified forensic entomologists in the nation and chairman of the forensic sciences department at Chaminade University in Honolulu.

Danielle apparently wasn't wrapped in a blanket or buried in a shallow grave. However, Faulkner has described the weather in February as unusual.

Jurors in the Westerfield trial have heard powerful scientific evidence over the month the prosecution has been presenting its case. But their responsibility is to determine beyond a reasonable doubt whether Westerfield killed the girl, and the defense has not begun.

Witnesses for the prosecution have testified that DNA from a bloodstain on Westerfield's jacket and on the carpet in his motor home matches Danielle's. The victim's DNA was obtained from one of her ribs after the autopsy.

Jurors also have heard that a hair found on a bathmat in Westerfield's motor home could be hers, and DNA tests of a hair found in the motor home's sink drain matched her DNA.

Witnesses also testified that fibers wrapped around the victim's necklace matched fibers found in Westerfield's bedding and laundry, and an expert said two fingerprints found on a cabinet in his motor home were left by her.

The San Diego Police Chief gives an interview--briefly mentions the Westerfield case

Q & A

David Bejarano SAN DIEGO POLICE CHIEF

June 30, 2002

Bejarano became chief in April 1999 and has served on the force for 23 years. He coordinated security for the 1996 Republican National Convention, the 1998 Super Bowl and World Series, and served with a border crime unit intended to protect undocumented immigrants from violent crime. Bejarano was interviewed June 18 by the Union-Tribune's editorial board.

Question:

What specifically is the role of the San Diego Police Department in counterterrorism?

Answer:

It really has to be a federal, state and local effort. We all know that the federal side is primarily responsible for the intelligence gathering especially outside the country. Nationwide there are probably 700,000 police officers who need some information, especially if it's specific, if it's credible. Police departments along with fire and paramedics play the critical role of being initial responders to the scene. The other responsibilities involved are hopefully to find and prevent an incident from occurring and that means going out and identifying possible targeted locations. The other responsibility of local law enforcement is to make sure that personnel are properly trained, properly equipped. Making sure that we have contingency plans in place so that there is a coordinated response.

How would you assess the threat to San Diego?

As far as the threat to San Diego, we are a major city on the West Coast. Bill Gore (the FBI's special agent in charge in San Diego) and I talk frequently. I was one of a dozen chiefs from major cities that early after 9-11 attended a briefing at the National Security Agency in Washington. And we received a security clearance to be able to receive information that in the past because of the laws involving classified information we would not have received. Whether we are at the top of the target list, in the middle or at the bottom, we really don't know.

Do you believe there are still active terrorist cells here?

I believe that there are active cells operating in the U.S., whether they might be operating here in San Diego now or in the future or in the past, that's a possibility. But I cannot be more specific.

What kind of cross border cooperation are you getting?

The relationship is in place. There's information that we can share, there's information that we cannot share in light of some of the issues that have surfaced in Mexico in the area of corruption. But again, the (governmental) relationship is strong. There is cooperation. We do have a means of communicating. We do have some tactical actions (training and contingency plans) along the U.S.-Mexican border.

We've had a wave of officer-involved shootings lately. One recent incident involved a person under a bridge by the flood control channel when a passerby called in an indecent exposure report. It resulted in a macing, a refusal to obey the officer, and then the shooting. The suspicion is that if the officer had taken a few steps back and called for back-up, the situation could have been brought to a different resolution. Are you reviewing the ways that officers respond to calls involving the mentally ill?

We're taking a look at every officer-involved shooting. And in most cases, probably about half of the cases, it does involve a situation where you have a mentally ill person, some type of a mental condition, or somebody under the influence of narcotics. About two years ago we formed a use of force task force. It was probably the largest, more comprehensive review of all of our practices. We took a look at policies and procedures and training. And about 140 people were involved in this task force. About half were from the community. Over 15 months they took a look at the best practices throughout the nation and they developed about 100 recommendations. We have implemented about 31 and the commitment was in the next year to implement at least 30 more. And some of it has to do with the additional training in the area of mental health. It also includes recommendations regarding the expansion of our PERT teams ? psychiatric emergency response teams ? where you team up a licensed clinician with a patrol officer. These PERT teams in a recent six-month period actually contacted over 2,400 people. People involved in some type of a mental health condition, provided them the proper resource or treatment.

How does that work?

They are assigned and normally they work the afternoon/evening watch. The patrol officer receives additional training ? beyond the academy ? on how to work with the mentally ill, recognize the symptoms, treatment, etc. So they ride as a pair. And, yes, they are available to respond to calls that might involve a mentally ill person. They have a caseload they follow up on to make sure that they are receiving the treatment.

Have the recommendations you've implemented so far made a difference?

We believe so. Again, we've contacted with just the PERT teams, over 2,400 (potentially violent) individuals. We expanded the use of less lethal equipment, and that's the air tasers, where every officer in the field now has a taser. We have a beanbag

shotgun in every patrol car. We expanded our K-9 units, we're probably at 52 canines now, and we have the largest canine unit in the nation. And again their primary responsibility is an alternative to use of force. We also went through two days of training. We called it tactical active communications training. Part of it was classroom education. But primarily it was a lot of scenario type training. Role playing. These officer-involved shootings are very dynamic. The officer literally has seconds to make that critical decision.

I believe, in about 18 occasions, the officers have used the bean bag shotgun. And in about 50 percent of those cases it was effective, the person was subdued without the use of deadly force. We've had 16, 20 occasions where the air taser has been used. The air taser has been effective about 75 percent of the time in subduing an individual. And our K-9 units actually are deployed over 300 times a month.

We're always concerned when we have to use deadly force. We've had 12 so far this year compared to 9 last year. We review every single officer-involved shooting.

But we also need to take a look at the actual persons involved. What we've seen is that we're seeing people are more willing now to confront a police officer in uniform and in almost every single case, if the officer has had the opportunity, the officer has backed off before they fired. We've seen an increase in assaults by about 40 percent on police officers.

What is the goal when an officer fires a weapon?

We have obviously a misperception by the community that the San Diego Police Department or other agencies have a policy of shoot to kill. We do not. The goal is to just stop or eliminate that threat. And that means that the officers are trained to fire in the upper body, torso area, to stop individuals from advancing.

Why are there more assaults on police?

I wish I had an answer for that. It just seems that we have a more violent, aggressive society. About two-thirds of the people that we arrest in San Diego test positive for recent drug use.

What is the process after a shooting?

The investigation of an officer-involved shooting is probably one of the most thorough, comprehensive, documented investigations. It takes weeks if not months. Our homicide unit responds. Lab personnel respond to collect evidence. We have the captain overseeing homicide. I respond to every officer-involved shooting. Thedistrict attorney also sends out an investigator. And just processing the scene itself will probably take eight or 10 hours. The officers, if it involves more than one officer, are immediately separated and we do provide a peer support officer. These officers are traumatized also. So they're teamed up with a peer officer who is not involved in the incident. And the officers, as soon as possible, are taken to the nearest police facility for the process.

A sergeant and the lieutenant from homicide will interview the subject officer involved. The Police Officers Association also will send its attorney to the scene.

Homicide does a criminal investigation. Separate from that we have our internal affairs unit send in investigators. Then the homicide report is forwarded to the district attorney's office. And the district attorney's office makes the determination if it was a lawful shooting or not.

Our internal affairs unit looks at whether policy was followed. Takes a look at tactics. Takes a look training. And that's a separate internal investigation by our department.

I believe, in the last three years or so, internally, we have determined that about five shootings were not within policy. And of these several probably were accidental discharges of the weapon.

What happens if the DA rules it a lawful shooting but your department says it's out of policy?

We have a range of options. In most cases it involves discipline. And that could be anywhere from a formal reprimand to training to termination.

Can you assess the morale of the rank and file in the department given the contract situation?

I would say prior to the contract (impasse) situation we were doing extremely well. But obviously there is some disappointment; there is some frustration. People throughout the nation continue to look at San Diego as one of the best departments in the nation. And that's because of the employees we have, the successes that we've had - whether it was the Republican National Convention, the Super Bowl, or the Biotech Convention.

In the Westerfield case, have you ever seen a capital case turn around this quickly and proceed to trial?

A death penalty case going to trial within 90 days is almost unknown. Normally, you're looking at nine months to a year. So that obviously presents more challenges for us to be prepared for trial within 90 days. I am more than satisfied as far as the response by our department and the response by other county agencies who came out and assisted us in that particular case.

What's happening with the Jahi Turner case?

It has been almost two months now. April 25. And the response in that case was the same as in the Van Dam case, if not more so. Thousands of hours have been involved in that. A lot of search and rescue. We followed over 100 leads. And as far as the search of the landfill, that was unprecedented. Five or six days, almost around the clock. I was out there myself. I believe we are making some progress. We continue to work on the case.

We've had the three strikes law on the books for a few years. Do you have any observations on its possible effectiveness?

That would be a personal opinion ? I think it has helped us. Over a 10-year period over the last few years we've had a significant decrease in crime overall, a significant decrease in violent crime. And they are taking career criminals and for the most part they're saying 25, 30, 40 year sentences. You're taking the career criminal off the street. The concern I have is that the third strike should be a felony violent offense as opposed to a petty theft.

Where does the department stand in the controversy on racial profiling?

We made a commitment a couple of years ago that we would collect the information and work with the community and try to interpret that information. And the numbers haven't changed. We have been collecting the information now for about two years. And it pretty much remains the same.

We have expanded our advisory committee that we continue to work with. But I believe we need to move forward. Because the information hasn't changed and I don't believe it's going to change, as far as the percentages. If you take a look at numbers nationwide, whether it's a medium city or a large city, you pretty much are seeing the same percentages.

We're moving now into training. Every officer will be receiving about five hours of training beginning July 1 in the sensitive issue of racial profiling, understanding the law, cultural sensitivity, etc. And I believe that you really have to look at your supervision, your accountability and your training.

Can you talk about the Justice Department's effort to get local police departments to assist in immigration matters?

We are not in the immigration business. We don't have the personnel. And we really value the diversity and the relationship that we build with all members of the community. So we're not out contacting individuals to find out if they're here illegally, whether they might be from Russia or from Mexico. If we have specific information that a person might be tied to criminal activity, then obviously that is something that we would pursue and work with the federal authorities.

And here's Rick Roberts' take on last week's testimony--Possible bias alert!.

Day Fifteen of the Westerfield Trial

Thursday, June 27, 2002

Recap:

The jury had the day off today, but Judge Mudd and the attorneys spent the better part of the morning dealing with important matters in the Westerfield trial.

In what was termed a housekeeping task, the prosecution and defense went through the more than 150 exhibits and items of evidence introduced during testimony by the prosecution. Their task was to decide which of those would not be allowed in the jury room when the case eventually goes to deliberations.

The exhibits include all of the photographs, maps and charts used by the prosecution, such as the photographs of Danielle's remains at Dehesa Road and at the autopsy, the enlarged map illustrating Westerfield's long and winding journey the weekend Danielle disappeared, and the charts showing the DNA and mitDNA results on hairs and blood from Westerfield's RV and home.

Items of evidence included everything collected by police investigators and introduced by the prosecution, such as the tape of Brenda's 9-1-1 call to police the morning she discovered Danielle missing, Westerfield's green jacket with holes made by a forensic specialist to remove the blood later identified as belonging to Danielle and Westerfield, and Danielle's necklace showing the tangled hair where the first orange fiber was found.

Most of the exhibits and evidence were allowed into the jury's deliberation room without disagreement. However, the defense did argue against several items.

While the defense had not objection to the 9-1-1 and Westerfield's police interview tapes being allowed, they did not want the transcripts included. Judge Mudd ruled in their favor, stating that the best evidence of the contents of the tapes were the tapes themselves. He did say, however, that if the jury requested, the transcripts could be read to them during deliberations.

The defense also argued against the inclusion of some of the material introduced after Feldman "opened the barn door" to Westerfield's entire collection of pornography during his questioning of Detective Watkins.

To this end, Feldman argued that:
* Case law showed that evidence does not automatically become admissible simply because it is mentioned during testimony,
* The court was aware that he might ask about the total number of images found on Westerfield's computers,
* The consequences of this line of questioning had "completely unforeseen results,"
* His questioning of Watkins was not a tactical decision, but rather, an inadvertent trespass,
* He didn't think what he had done was "problematic,"
* And, that even if the court deemed his actions inappropriate, it was unfair for the court to penalize Westerfield because of it.

Feldman's argument flew about as well as a one-wing airplane; It got of the ground, but it didn't go very far.

Judge Mudd said that, although he did not believe that Feldman had acted in bad faith, and that he had intended to keep the majority of pornography out of the jury room, he did believe that Feldman's questioning was a strategic move to minimize the number of images containing child pornography.

While the official court transcript could not reflect Feldman's behavior during that line of questioning, Mudd said that he had certainly taken note of it. Feldman's tone of voice and physical expressions were clearly used "to convey misleading information" to the jury. Because of this, he ruled that the vast majority of pornography would be made available to the jurors in the deliberations room.

However, Mudd did rule that some of the pornography introduced by the prosecution would not be made available to the jury, even if they requested it. This included the images of bestiality and, perhaps, some of the photographs of Danielle.

Mudd agreed that Westerfield's collection of pictures depicting people engaged in sex acts with animals was mentioned by Detective Watkins under redirect examination. However, because bestiality, in and of itself, did not play a role in the crimes Westerfield is accused of committing, and because of their highly prejudicial nature, those pictures would never be seen by the jury.

At the same time, Mudd ruled that the testimony referring to those images would remain in the court record and could be read back to the jurors if they asked.

Mudd deferred his ruling on the photographs of Danielle L., believed to be the daughter of one of Westerfield's ex-girlfriends, until he hears the defense's case. However, his inclination was to exclude all of the photos that showed her face so that her identity would be protected.

The prosecution, however, argued that since there had been testimony about the color of her hair and to refute the misleading information about her ethnicity, pictures showing both should be available for the jury.

If you recall from Day 11, FBI MitDNA Analyst Catherine Theisen testified under cross examination that the results from two blond hairs found in Westerfield's Toyota 4-Runner showed that they were consistent with Danielle L. Then, when running her MitDNA profile through the FBI data base, Danielle L.'s matched 35 other known profiles, most of which were from people of Asian descent.

With the exception of some duplicate images, Judge Mudd ruled that all of the rest of Westerfield's collection of pornography would be available to the jury if they asked to see it.

The defense also renewed their objection to the autopsy photographs of Danielle's remains. Judge Mudd recorded this, but denied their exclusion; They will be included with other exhibits and evidence allowed into the deliberations room.

Following the resolution of the exhibits and evidence, the defense raised several motions. First among them was a renewed request to have the jury sequestered.

Accusing the media of gross inaccuracies and excessive coverage, Feldman said that, without sequestration, there was no way the jury could escape the overwhelming onslaught of news, opinions, film footage and photographs.

Judge Mudd disagreed. He said that, while he was "not in charge of the press getting it right," and readily conceded that there had been some "gross errors by some media," he believed that jurors were doing an excellent job of insulating themselves from the exposure. As long as their self-policing continued to be successful, he would not order that the jury be sequestered.

In a companion motion, one which confirmed a rumor we've been hearing since the beginning of testimony, Feldman vehemently renewed his motion for a mistrial based on the nature of the publicity surrounding this case.

Judge Mudd recorded this motion, then promptly denied it.

Winding up the morning session, the prosecution raised their concern that the defense was not disclosing the names and specialties of expert witnesses that they intended to call. Under the rules of discovery, Dusek said, the prosecution has a right to know this so that they may prepare for their cross examination of these witnesses.

Feldman denied that he was withholding this information. Instead, he said, he and his team had not yet decided which experts they intended to call, and besides, most of them were already on the prosecutions original witness list. Since they had not chosen to put them on the stand, the defense might. He then offered to meet with the judge "in camera" (in chambers, out of the public view) to explain the difficulty the defense was having in selecting their experts.

Judge Mudd responded to Feldman saying that "if you intend to call only experts on the prosecutions list" that's one thing. However, "if not, it's a little late [in the case] to be deciding which experts you're going to use." However, he agreed to hear Feldman's decision process and render his decision about disclosure of witnesses afterward.

With that, he cleared the courtroom.

What to Expect Next:

As always, Judge Mudd's courtroom will be dark Friday, Saturday, and Sunday. Because of a closed hearing about a mystery witness the prosecution hopes to put on the stand, the courtroom will also be dark on Monday. Testimony will resume at 9:00 AM, July 2, 2002.

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