Posted on 07/15/2002 6:55:50 AM PDT by MizSterious
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.
Thank you very much.
sw
OFFICIAL DW TRIAL THREAD GLOSSARY
ACQUAINTANCE - Someone you know and haven't considered having over for sex.
BARBED - Having reached the point of being too hot to handle for either the prosecution OR the defense.
BEETLEMANIA -
CAPED OUTFIT - An ensemble including, but not limited to black catsuit, invisible cloak and ruby slippers accessorized with dust rag and febreze. When donning this ensemble the wearer will have special powers which include the ability to be stealth, hide in extremely cluttered closets, levitate, and clean entire rooms in an amazingly short amount of time.
CONVERSATE, CONVERSATING - To speak with another person whether or not they are speaking to you.
DUSEKED - to have your fragile house of prosecutorial cards collapse when your witness is FELDMANIZED
FAULKERNIZED - a natural process whereby maggots destroy a month's worth of court testimony in two hours.
FELDMANIZED - Judicially castrated; having reduced a reasonably intelligent witness to a blithering blob with the coherence of Rain Man and the believability of x42; usually accompanied by rhythmic thumping of DA's head on table. See DUSEKED.
FIRECRACKERS - A bunch of noise and sparks, a little fire, but mostly smoke, and then after a while, they are gone.
FISHES-AND-LOAVES PIZZA - A seeming unending supply of pizza. Can be bought at NOON on a Friday, and it will feed a family of 5, then will feed the same family of 5 + 2 more guests until 8:30pm, then will feed Mom,Dad, and four guests around 2am Saturday Morning.
FRIEND- Someone you have or are considering inviting over for sex.
GRACEFULL - full of self-importance (as in Nancy Grace), much to the annoyance of others
HELLOCINATING - the Swing Set's delusional belief that everyone they met wanted to come home with them.
HTML CODE SHRIEKING/ CODE SHRIEK - repeated use of large, colorful fonts in posts. To the annoyance of some, the amusement of others, and the bafflement of newbies.
IMMACULATE ABDUCTION - The kidnapping of Danielle Van Dam by an unknown (alias STEALTH NINJA DAVE), who broke into a locked house, which had alarms, and a dog, and a father and three children inside. He kidnapped the young female, while drunk, carried her out of the house, flew her to his motorhome (see CAPED OUTFIT), and murdered her. While in the house, he left no prints, no DNA, no hairs, no fibers, not one piece of evidence he was ever there, and neither the dog, the father, nor the two other children ever noticed anyone had been in their house and walked past their open bedroom doors.
INSECTOPHILE - To be conversant in life cycles and mating of obscure insects, sprinkled with multi-syllabic terms from college-level biology and meteorology. Caused by prolonged exposure to a BUG GUY.
INTIMATE FRIEND - Someone you have had over for sex.
NEVER-ENDING JOINT - A rolled cigarette of marijuana (wackyweed) that can be smoked by four people at 8:30pm , then smoked by four or more people several times in the parking lot of a bar, then can still be smoked by six people in a garage , at 2 in the morning. (Save the roach!)
PIZZA-EATERS - Usually a group of five or more of guests and/or family members that is customarily needed to eat a never-ending pizza. See: FISHES-AND-LOAVES PIZZA
PIZZA PARTY - After coming home from the bar at 2am with friends, new friends, total strangers, you head to the garage for PIZZA. (PIZZA, a.k.a. drugs, sex)
PREMATURE ACCUSATION - An arrest by police of a suspect before they have done investigative work on all of the evidence which might indicate which suspect is the most likely perpetrator.
RECREATE - (1)To relax, rusticate.
(2)Visit Silver Strand Park
SCAPECOAT - the jacket owned by DW with a spot of Danielle's DNA on it.
STEALTH NINJA DAVE - (1)David A. Westerfield
(2)To possess the ability to drink large quantites of rum & Coke or other alcoholic beverage, do a shot, and then sneak into a house full of people and dog and abduct a child. See: IMMACULATE ABDUCTION.
SLUTJACKALS - (1)a bisexually aggressive female type species, without scruples, restraint, or moral fiber. Willing to settle for anything that satisfies basal desires and is in any way considered momentarily convenient.
(2)Masters of deceit, sinister, cold-hearted, savage creatures which prey upon ambushing unsuspecting neighbors.
SWING-SET - For those who don't like playing in the sand box. Usually a set of six, who share the set and enjoy highs and lows.
SWINGER-SIX a.k.a. PIZZA-EATERS - Brenda, Barbara, Denise, Larry, Mo and Curly
THREADHOUND - Someone who sits on the threads all day, and howls and yells at anyone that won’t agree with them.
VAN DAM DAMN VAN - a blue van used in Damon Van Dam's wild ride through all the probable dump sites for Danielle's body on the weekend of Feb 16th. Although Damon does not report having found the body that weekend, the flies did. Now missing in action.
VAN-DAMNED-IF-I-KNOW - A poster who joins mid-thread and mid-trial and has less than a thimbleful of information, but spouts off anyway.
Janie's Got A Gun - AerosmithDAMON'S GOT A GUN
|
| Dum, dum, dum, oh no what have I done? Dum, dum, dum gonna buy a big ole gun. Dum, dum, dum, just wanna have some fun? Dum, dum, dum swing is not for one!!!! Damon's got a gun Damon's got a gun Run away, Danny away from the pain yeah, yeah yeah yeah Damon's got a gun Run away, Danny away from the pain yeah, yeah yeah yeah Damon's got a gun Damon's got a gun THE END! |
Towards the end of Faulkner's testimony, there was no need to take notes because the unrefuted testimony of a witness hired by the prosecution stated with little or no reservations that the body could not have been disposed at the site where it was found prior to 2/16 or only a few days prior.
When asked if he knew of any possible explanation for the absence of particular insect activity that should have been present if the body was disposed at a time that could tie DW to the disposal, the answer was an unqualified "NO", and Dusek didn't even bother to recross at that point. In essence, Dusek conceeded the point that DW could not have disposed of the body.
At least some members of the jury must have seen this coming and at that point, there was no reason to additional notes.
What does the prosecution have for evidence at this point? One or two hairs in DW's house or motor home that can be identified as Danielle's, and a blood spot on DW's green jacket that apparently was not subjected to blood splatter evaluation and a very small blood spot in DW's motor home carpet. Could it be that Danielle had a bloody nose at DW's house when selling the GS cookies, dripped blood on the jacket undetected. Then there was the dog that scratched Danielle a day or two before the GS cookie selling trip. Danielle could have either accidentally or intentionally picked at the scab, causing blood to be deposited on the jacket.
Remember that the dry cleaner did not notice blood on the jacket when DW brought it in for cleaning, so why would anyone expect DW to notice. Certainly he would have checked for blood on it if he had worn it during a possible abduction, murder and disposal of Danielle's body. For that matter, one would think that he would have disposed of the jacket, because its absence would likely have not even been noticed. On the other hand, criminals do make mistakes and do stupid things; that's why many of them get caught.
Then there is the speculation that Danielle may have gone into the MH to play, with or without permission. The testimony of a neighbor about another child of the VDs playing in the street leaves the impression that the VDs did not closely supervise their children was likely offered to counteract the VDs testimony that they did watch their children as closely as they claimed.
DW may have killed Danielle, but there is presently so much doubt as to the theory of the prosecution or evidence to support that theory that a reasonable person could not say he is guilty beyond a reasonable doubt.
If DW actually murdered Danielle, I think the evidence could and should have been developed further before charging him and the blame for an incorrect 'not-guilty' would have to be laid squarely at the feet of a prosecutor desperate for re-election, a point Feldman may very effectively use in his closing argument.
....this is not a Sir Arthur Conan Doyle mystery in which you, the viewing public, get to have an "aha!" moment. This is a case in which the suspect was identified easily enough, and the initial suspicions confirmed through solid investigation and a mountain of evidence that developed from that investigation.
Here's another way to look at it--
Westerfield's guilt can be mathematically established way beyond a reasonable doubt. It's easy, really. Here's how:
Assign a numerical value to the chance that Westerfield, the anal neatnik, left the motorhome outside unlocked, unattended, and with the security system off. To be nice, say it's 1 in 3, even though we all know it's the kind of thing he would do maybe once every 500 visits. Now, what are the odds that Danielle Van Dam escaped, ran across the street unnoticed, and snuck into the motorhome at just the precise moment that it was unlocked, and unsecure. If you're one of the true believers here, like Dood, it's 25 percent, or 1 in 4. I say it's more like 1 in 200, but either one works.
Now, assign a numerical value to the chance that while she was in there, she somehow cut herself and bled. What are the odds of that? Again, I say 1 in 200, but go with Santee Dad's estimate, and use odds that are 1 in 3. Maybe there were a lot of sharp edges in there.
We'll assume that the hair in the motorhome, the fibers and the fingerprint were left behind on this visit, and so it does not increase the chance of Westerdoodie's guilt. We'll further assume, just to be nice, that the jacket was in the motorhome, or got contaminated from the blood dropped in the motorhome on this auspicious occasion.
Just with those facts, and way too generous odds, we're up to a 1 in 36 that there's an innocent explanation, pretty damn likely, and good enough for a conviction in any state in the union, but certainly not enough to sentence a man to death.
But that's not all. Because we have Danielle's hair in Westerfield's dryer lint and on his bedding. Now, we know the little scamp was in the house, but what are the odds she spread her hairs all over, they got on and in several different articles of laundry? Including on the bedspread DW just happened to take to the cleaners? Well, hell, go with 1 in 2.
But the dog, well, I'm sorry, I'm going to have to raise the odds. The chance that the Van Dams tracked that many dog hairs from their cookie visit into the Westerfield house is pretty small, even in Ms. Samantha's Santa Monica/Tom Hayden world. Give it 1 in 8, even though in the real world it's 1 in thousands.
However, there's the problem that the dog hairs don't positively identify the dog. That's simple to resolve. All the defense has to do to get rid of that 1 in 8 is come up with a dog, any dog, whose hair characteristics come close to the Van Dam dog's, and who has been in the house within the past few years. Do that, and the 1 in 8 is gone. Don't do it, and there's only one conclusion to be drawn: There is no such dog, and the only non-innocent explanation is transference, which, as we have examined, is unlikely.
Then, there's the carpet fibers that those darn Van Dams tracked into DW's house when they tried to force him to buy those disgusting Girl Scout cookies. The fibers then got in the laundry. Oh, hell, I'll give you a pass on those. I'm sure the Van Dams tracked those in on their shoes.
We're now up to 1 in 576, or slightly less than a 2/10 of 1 percent chance of innocence under very generous conditions. That's enough for capital punishment under all the official standards, although no one ever assigns a number to it. And, we haven't even gotten into all the lies, the porn, the odd behavior, the disappearing clothing, the cleaning and all the other things that point to Westerfield.
Using real world calculations, I put it more like 1 in 5000, not 1 in 576. But I gave overly high probabilities to prove that even doing so, the odds of there being an innocent explanation for Danielle's blood, the hair, fibers, and other evidence are miniscule.
The case has long been over, and it's incredible that there are so many arguing about so little. In fact, I think there is a far greater chance that Westerfield was framed than that there is an innocent explanation for the blood getting there. And the odds of that are pretty tiny, too.
If the defense can explain away the blood, I'll be happy to consider it. Call me when it happens, and I'm not holding my breath.
sw
ROTFLMAO! I love this one! It describes the exact mental picture in my head the first time I heard it used.
The method for determining the odds is described in the post. You want to go through and give your own odds?
You and P-Mom must be liberals. You argue the same way that Ann Coulter describes liberal arguments.
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