Feldman's Questions Show Defense Strategy: Dig into Damon and Brenda van Dam's Private Lives!

KNSD NBC ^ | March 19, 2002 | Lynn Stuart

[FresnoDA]

Experts say attorney Steven Feldman's questioning of the van Dams gives clues to the strategy he will pursue during the trial.

Feldman's questions show defense strategy by Lynn Stuart

SAN DIEGO, March 15 –    When the parents of Danielle van Dam testified Thursday at a hearing to decide if the murder case should go to trial, it gave the suspect's attorney, Steven Feldman, an opportunity to grill them.

Much of the questioning may have seemed like needless digging into the couple's private lives, but experts say Feldman was laying groundwork for his defense.

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At times during the long day of questioning, Brenda and Damon van Dam appeared openly exasperated by the tough questioning dished out by Feldman. The attorney for murder defendant David Westerfield focused on the couple's drug use, their alleged "swinging lifestyle," and lies they told to police early in the investigation into Danielle van Dam's disappearance. Many of his questions were ruled irrelevant, and at times it appeared to the untrained observer that the attorney was asking the same questions over and over as he tried to find a wording that satisfied the judge. But legal experts gave Feldman's savvy courtroom performance high marks.

"It may just look like not much was happening, but Steve Feldman really got in there, he did his homework and he got the answers to the questions he needed to get," criminal defense lawyer Gretchen von Helms said.

Some of the questioning was an attempt to catch the van Dams in inconsistencies. If Feldman can show that Brenda or Damon answered Thursday in ways that contradict or were inconsistent with their past statements or the testimony of others, it could hurt the prosecution's case when it goes before the future jury.

One example is when Feldman questioned Brenda about her night out at Dad's Cafe.

"You just told me you don't recall dancing with David Westerfield. Is that true?" Feldman asked.

"Yes," Brenda answered.

Feldman claims that he has witnesses who will testify that they saw Brenda dancing with Westerfield the night before Danielle was discovered missing. That could raise doubts about the mother among jurors, legal observers said.

"He wasn't asking those questions for anything but preparing a transcript so that he can use that for impeaching those witnesses at trial and he did that very effectively.," von Helms said. Feldman peppered both parents with questions about their drug use.

"How often did you smoke marijuana?' he asked.

During the preliminary hearing, the judge ruled that many of Feldman's questions about the van Dams' lifestyle were irrelevant. But during the trial, the defense will be permitted more latitude, and von Helms expects Feldman to bring up the subject again.

"It opens up to the defense to go in an say not only were they doing drugs and having sex and all these other things, which in one side of it, but also that it affected their ability to be parents," von Helms said.

The questioning also gave Feldman a chance to see how the van Dam's react to his questions. How the van Dams appear to a jury could plant seeds of doubt that affect their deliberations on Westerfield's guilt. Legal experts say if the parent's don't show any more emotion in trial than they did in court today, that factor alone could hurt them with a jury.

[Mrs.Liberty]

exactly!

[MizSterious]

" Some people are fixated on using 'sex sex sex' to marginalize all questions about the info available."

I seem to recall similar tactics for...oh...about eight years.

[fnord]

hmmm, good point. and effective too.

[fivecatsandadog]

ok, suppose Danielle ran away. Being only seven years old, would she stop to pack a bag, write a note? Most kids I know are afraid of the dark, especially being out alone at night. Heck, it's creepy to a lot of adults! Go back to when you were 7. Ok, let's suppose Danielle was "tough". She packs a bag, leaves a note, changes out of her PJs into her chinos and sparkly shirt. She opens the door, steps out in the yard. There's the gate. The latch is too high for her to reach. She heaves her pack back over the 6 ft. fence (um, she's tough) and shinnies over the fence. She's in the drive now. Picks up the pack and walks down the street. It's between 10:30 and 1:30. And it's cold. And she's getting scared. DW comes home from Dad's, sees Danielle walking along the street, and stops. Rolls down his window and offers her a ride. She accepts.

Ok. Wheres the pack? Where are her clothes? Same scenario, but stop where DW drives up. Instead DW is miles away. Danielle walks down the street. Heck, I grew up in S. Cal. and I remember February can be miserable during the day. And if this neighborhood is up in the hills, there's canyons and ravines, and coyotes and rattlers, possums, fox, you name it.

Maybe she rode her bike. But no one has said her bike is missing.

I just don't think Danielle was gutsy enough to run away.

[mommya]

I think she would have had the guts to do it - she was probably too young to think about the real dangers there are to running away - she probably just had a romanticized notion of it - not a real view of it at that age. I think she has been described as stong-willed (?) and wanting to change the world (?). She may not have had the time to get scared and head back home - if a predator got to her right away.

[MizSterious]

HJ, one thing we don't yet know for sure is just how well Mrs. VD knew Westerfield. She claims she didn't even know his name until just before Danielle disappeared. She also claimed she never danced with him at the bar. Now we all know that was patently untrue: she danced with him many times that night. On the stand, she referred to him as "Dave." Not "Mr. Westerfield," not "my daughter's killer"--but DAVE.

Now, a funny thing occurred a few weeks back. An Aussie paper claimed to have spoken to neighbors and friends (doubtless before the gag order) and reported that the missus was having an affair with Westerfield over a time span of about 9 months. Some folks immediately shouted "tabloid trash", but the word "tabloid" holds a different meaning in countries other than ours. Here, we think of them as yellow journalism. Over there, it refers to the size of the publication.

Nevertheless, we don't know yet whether this is the truth or someone's fantasy. If it should prove true, then the woman obviously spent a good deal of time with DW. It's possible he even took her for day trips in the m.h., perhaps even with the daughter. All of those are "ifs." BUT, "if" all of the above, there would be no need to "plant" blood (and for the life of me, I can't imagine this being done, far too difficult for the amateurs at hand) or dna or anything else. It would have already been there.

And also consider that the hand prints found included those of one of Danielle's little playmates. This seems to imply children playing in the m.h.--seems--but again, we really don't know yet.

Meanwhile, we're all looking at the facts. Some of them don't add up to the official story. Some do. I've been told that few cases have all the loose ends tied, so it's possible there will always be some mystery(s) about this case.

[MizSterious]

"It takes only minutes to premeditate as compared to in the heat of passion..."

There ya go, Kim. You really should have held onto those old textbooks from your Criminal Justice classes at college. They would be really helpful in this case, I bet!

[fivecatsandadog]

she was probably too young to think about the real dangers there are to running away -

Possibly. I guess I've forgotten how it was to be that young, innocent and trusting. It's been many many years.

[MizSterious]

"I find the gardner story hard to swallow as I would think BVD would know about it and so would the police by now, and her testimony would have been different.."

I would too, were it not for watching her lie on the stand at the hearing, even though she had to know she would be soundly impeached on the issue of dancing with Westerfield. I think the vds would float any ol' lie, just in case they could get away with it--after that performance.

[MizSterious]

Or someone else might have piled things on Danielle's bed, to explain why it was no one noticed her missing.

[Freedom2specul8]

Good questions mommya.. Personally speaking, or my relation to this .. when our kids were little, friday nights were the funnest nights of the weeks for them. They could stay up late watching movies, playing or whatever..I had this big 4' x 4' feather pillow, and they each had their own beanbag chairs.. I can remember the kids stacking the stuff on their beds to be silly/read, play, sleep or watch tv when then got older.. *they were 12 before I let them get a tv* btw. :) So it's not weird to me...to know she might have down that. Your question still stands, was it normal for her to do it..and I know I didn't help at all. LOL

[Mrs.Liberty]

I think the vds would float any ol' lie, just in case they could get away with it--after that performance.

But why lie? If, as she stated, she did not care what was said about them, that they could rip her to shreds (on AMW), then why would she lie to the cops, to the community, and on the stand?

[Freedom2specul8]

Well, hey....tell us what ya really think. How long does it take to make it pre-meditated? What is YOUR legal definition for premeditation?

[MizSterious]

Huh? Why me? RS gave you a pretty good reply, and I honestly thought you would know from your school days.

[Freedom2specul8]

Oh gosh, let me help you...

PREMEDITATION - With planning or deliberation. The amount of time needed for premeditation regarding an act depends on the person and the circumstances. It must be long enough, after forming the intent to act, for the person to have been fully conscious of the intent and to have considered the act. A design formed to commit a crime or to do some other thing before it is done. Premeditation differs essentially from will, which constitutes the crime, because it supposes besides an actual will, a deliberation and a continued persistance which indicate more perversity. The preparation of arms or other instruments required for the execution of the crime, are indications of a premeditation, but are not absolute proof of it, as these preparations may have been intended for other purposes, and then suddenly changed to the performance of the criminal act. Murder by poisoning must of necessity be done with premeditation.

[MizSterious]

That's the question I've been asking myself since the hearing. I could not believe she would sit there and lie like that--we all thought she was being less than truthful with the police and the media (and AMW), but then when the witnesses statements were entered, we also knew she'd lied under oath. So what could possibly be of such enormity that, after all that had already been revealed, she still felt the need to cover up? Or is she just a ditz who doesn't know what day it is? Baffling.

[Freedom2specul8]

More

Important to have this element too

malice aforethought

n. 1) the conscious intent to cause death or great bodily harm to another person before a person commits the crime. Such malice is a required element to prove first degree murder. 2) a general evil and depraved state of mind in which the person is unconcerned for the lives of others. Thus, if a person uses a gun to hold up a bank and an innocent bystander is killed in a shoot-out with police, there is malice aforethought.

http://dictionary.law.com/

[Freedom2specul8]

first degree murder n. although it varies from state to state, it is generally a killing which is deliberate and premeditated (planned, after lying in wait, by poison or as part of a scheme), in conjunction with felonies such as rape, burglary, arson, or involving multiple deaths, the killing of certain types of people (such as a child, a police officer, a prison guard, a fellow prisoner), or certain weapons, particularly a gun. The specific criteria for first degree murder, are established by statute in each state and by the U.S. Code in federal prosecutions. It is distinguished from second degree murder in which premeditation is usually absent, and from manslaughter, which lacks premeditation and suggests that at most there was intent to harm rather than to kill.

[MizSterious]

Kim, you're the one who asked the question. Not me. Rolling_Stone's answer was good enough for a casual discussion.

[rolling_stone]

Ok KIm, it would take me a matter of minutes to pre meditate a murder, it might take you hours or days, ..how's that? LOL...:)