Defense has had no shortage of witnesses to make its case

SignOnSanDiego ^ | July 14, 2002 | Alex Roth

[MizSterious]

Defense has had no shortage of witnesses to make its case

By Alex Roth
STAFF WRITER

July 14, 2002

A week ago, Janet Roehr, a neighbor of David Westerfield's, testified at his murder trial about some of his routines, including his occasional habit of parking his motor home in front of his house.

Her testimony lasted 15 to 20 minutes, but what she said wasn't as important as what she did: She smiled at Westerfield.

Roehr was among a parade of defense witnesses who consider themselves friends of Westerfield's and who seem to like him, even as he stands accused of kidnapping and killing 7-year-old neighbor Danielle van Dam, who disappeared from her bedroom in Sabre Springs in February.

At various times during the trial, those witnesses have grinned at Westerfield, winked at him and laughed in his direction. One witness gave the 50-year-old design engineer the thumbs-up sign while leaving the courtroom.

Whatever else Westerfield's attorneys have accomplished so far, they have succeeded to some degree in humanizing their client. Legal experts said the importance of this achievement shouldn't be underestimated in a case in which the jury must decide not only guilt or innocence but also, potentially, whether he deserves the death penalty if convicted.

"They give the picture of Westerfield being a pretty normal middle-aged, middle-class guy," said San Diego defense lawyer Robert Grimes, who has been following the case. "It makes the jury wonder: Could this person really have done this horrible crime?"

During the guilt phase of a trial, rules of evidence place limits on character evidence ? that is, testimony about a defendant's personality. Nonetheless, a jury can get some feel for a defendant by sizing up his friends and evaluating how much those people stick up for him.

Several neighbors, some camping buddies and a female friend Westerfield hung out with at a Poway bar have testified. In large part, they were "people who seem like nice, ordinary citizens," said San Diego lawyer Mike Still, a former prosecutor.

One of the defense's most powerful witnesses was Westerfield's former girlfriend Susan L., who cried while acknowledging she still cares about Westerfield but hadn't seen him since shortly before his February arrest. She dated Westerfield for about three years after his divorce from his second wife. (Her last name is not being published to guard the identity of her daughter, who also testified.)

Her affection for Westerfield seemed genuine, although she admitted on cross-examination that he changed when he drank alcohol, that he once became "forceful" when drunk, and that he once waited outside her house.

In some ways she was a terrific witness for both the defense and the prosecution. For the defense, she made the point that Westerfield is a man who can attract a woman who seems sweet and normal. For the prosecution, she illustrated that Westerfield might have a dark side that goes beyond his alleged habit of collecting child pornography.

In addition to showing the jury that Westerfield has friends who care about him, his legal team has succeeded in raising questions about some of the prosecution's theories in the case, some legal experts say.

For instance:

 Prosecutors say Westerfield engaged in suspicious behavior by embarking on a meandering, two-day journey in his motor home on the weekend Danielle disappeared. He went from Coronado to the Imperial County desert and back again, traveling back roads and getting stuck in the sand twice along the way, he said.

But several defense witnesses testified that within the esoteric subculture of San Diego County motor-home enthusiasts, Westerfield's behavior wasn't necessarily that weird. It's not uncommon to drive back roads as a way of taking in the scenery and avoiding high winds on Interstate 8, they said.

 Prosecutors noted that Westerfield, who is compulsively neat and organized, took off that weekend without putting away his garden hose, which was uncoiled on the lawn. This shows he was in a hurry, they say.

But Westerfield's former girlfriend said it wasn't unusual for him to toss down the hose in the front yard before leaving on a motor-home trip. She also said the motor home got stuck in the sand during several camping trips she took with him.

 Prosecutors called a volunteer who testified that his cadaver-sniffing dog reacted to a side compartment of Westerfield's motor home during a search at a police impound lot.

Under questioning by the defense, he revealed that he never told police about his dog's behavior and that he was much less definitive about his dog's reaction in an e-mail he sent to the dog's breeder several weeks later.

 Prosecutors say child pornography found on computer disks in Westerfield's office prove he has a sexual affinity for young girls.

But a computer expert hired for the defense suggested that at least some of the pornographic images might have been downloaded by Westerfield's 18-year-old son.

Meanwhile, the prosecution ? which has succeeded in presenting a powerful body of forensic evidence linking fibers, blood and hair from the girl to Westerfield's house, motor home and sport utility vehicle ? stumbled once or twice in the past week.

Prosecutor Jeff Dusek leaned on several defense witnesses in a way that might cost him some credibility with the jury, legal observers say. And he may have come across as unnecessarily mean-spirited when confronting witnesses whose testimony conflicted with the prosecution's theory of the case.

"Prosecutors wear the white hat," said Still, the former prosecutor. "Don't beat up on witnesses you don't need to beat up on."

But Dusek had his stellar moments, too. His questioning of the defense's star witnesses ? insect expert David Faulkner ? was one of the most effective, and important, cross-examinations of the entire trial.

On direct examination, Faulkner, an entomologist with the Museum of Natural History, said flies on the girl's body indicated it was dumped at a time when Westerfield was already under 24-hour police surveillance.

But on cross-examination by Dusek, Faulkner appeared to contradict himself, admitting that strange weather patterns in February ? as well as the imprecision of the science ? made it impossible to know precisely how early the flies had infested the girl's body.

At the start of the trial, lead defense attorney Steven Feldman promised that the insect expert's testimony would exonerate Westerfield.

"Science is going to come to Mr. Westerfield's rescue," Feldman told the jury.

But by the time Faulkner left the witness stand, many of the jurors had stopped taking notes. They will be the final arbiters of whether Faulkner's testimony was relevant, and whether it made any sense at all.

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Alex Roth: (619) 542-4558;

[John Jamieson]

We didn't calculate any odds in LES, or KATE, or MATE. There are another 30 papers or so out there.

I knew Von Braun, he was was everywhere during the Moon program, often at KSC. Man, that was a project! Von Braun is probably rollin in his grave over the Shuttle (hated solids) and the Space Station.

[John Jamieson]

I think he did. Feldman is a master at stopping at the right question and coming back to it later on his own terms. He said he would prove that Westerfield didn't do with the prosecution's own witnesses and evidence. I expect him to do it too.

[agrandis]

I suspect bad journalism here. One thing I know: forensic entomology is hardly an "imprecise science."

[Greg Weston]

Getting a little personal there. Why do you want to know?

[Greg Weston]

I believe Ted K. went to Harvard for a time.

[John Jamieson]

Got in at 16 and appearently graduated, but he could have gone anywhere. I don't think bomb making is required at most schools.