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.

[Freedom2specul8]

my question was
I'm wondering what evidence they have that shows he planned it ahead of time..--

RS's answer

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

My new reply to RS's answer.. Maybe they have no evidence of premeditation..it gives them the ability to drop it to a lesser charge if necessary.

[Freedom2specul8]

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...:)

LOL~~, good one! Just remember, less planning allows for more mistakes. :)

[Jaded]

Heck Kim, I still do it. Oops my secret is out. Sometimes it's just hard to be entertained...TV is so boring anyway.

[Freedom2specul8]

Flowers for you

{V|

[Jaded]

Does the hour or two in the closet go toward premeditation time or execution time? There would have to have been a lot of planning.

[Freedom2specul8]

LOL (I'm almost afraid to ask) Do what Jaded?

[Freedom2specul8]

Good question..one could say if he did hide in the closet, he didn't intend to kill her, maybe drug her, rendering her unconscious...having his way and then leaving... ???

[Freedom2specul8]

Ooops, gotta go. will catchup when I get back. :) Here's a candle to keep the light goes out. '

[Jaded]

Pile stuff up on the bed. Well, but then I have 3 cats. One of them thinks she's a goddess. No rude cat comments please.

[rolling_stone]

CALIFORNIA CODES PENAL CODE SECTION 187-199

187. (a) Murder is the unlawful killing of a human being, or a fetus, with malice aforethought.

(b) This section shall not apply to any person who commits an act that results in the death of a fetus if any of the following apply:

(1) The act complied with the Therapeutic Abortion Act, Article 2 (commencing with Section 123400) of Chapter 2 of Part 2 of Division 106 of the Health and Safety Code.

(2) The act was committed by a holder of a physician's and surgeon' s certificate, as defined in the Business and Professions Code, in a case where, to a medical certainty, the result of childbirth would be death of the mother of the fetus or where her death from childbirth, although not medically certain, would be substantially certain or more likely than not.

(3) The act was solicited, aided, abetted, or consented to by the mother of the fetus.

(c) Subdivision (b) shall not be construed to prohibit the prosecution of any person under any other provision of law.

188. Such malice may be express or implied. It is express when there is manifested a deliberate intention unlawfully to take away the life of a fellow creature. It is implied, when no considerable provocation appears, or when the circumstances attending the killing show an abandoned and malignant heart.

When it is shown that the killing resulted from the intentional doing of an act with express or implied malice as defined above, no other mental state need be shown to establish the mental state of malice aforethought. Neither an awareness of the obligation to act within the general body of laws regulating society nor acting despite such awareness is included within the definition of malice.

189. All murder which is perpetrated by means of a destructive device or explosive, knowing use of ammunition designed primarily to penetrate metal or armor, poison, lying in wait, torture, or by any other kind of willful, deliberate, and premeditated killing, or which is committed in the perpetration of, or attempt to perpetrate, arson, rape, carjacking, robbery, burglary, mayhem, kidnapping, train wrecking, or any act punishable under Section 206, 286, 288, 288a, or 289, or any murder which is perpetrated by means of discharging a firearm from a motor vehicle, intentionally at another person outside of the vehicle with the intent to inflict death, is murder of the first degree. All other kinds of murders are of the second degree. As used in this section, "destructive device" means any destructive device as defined in Section 12301, and "explosive" means any explosive as defined in Section 12000 of the Health and Safety Code.

To prove the killing was "deliberate and premeditated," it shall not be necessary to prove the defendant maturely and meaningfully reflected upon the gravity of his or her act.

[wonders]

I hate to resort to quoting myself, but from my post #484 "As for the theory that DW entered through the garage side door at 1:45, then hid in Danielle's closet from until 3:00 when he exited with her through the sliding door: wouldn't a guy who sweats so much when he's nervous and has been drinking rum and coke really smell up that closet? Peeyooowweee!"

Wouldn't the dogs have gone nuts over this? Why did the FBI have to go to so much trouble to bring in their best dog if that was the case?

[MizSterious]

Seems he would have sweated all over the clothing in the closet, too. He should have dropped hair (from arms, legs, beard, etc.), and left highly-scented sweat on the items in the closet. I wonder if the dogs even looked for his scent? I know they looked for Danielle's.

[MizSterious]

None from here. My 2 goddess-wannabes won't let me.

[Freedom2specul8]

Yeah, if he was hiding in the closet, those smells would HAVE to linger! EEW, you are right!

[Freedom2specul8]

Hey, cats rule, dogs drool...

[Freedom2specul8]

Thanks for finding that!

To prove the killing was "deliberate and premeditated," it shall not be necessary to prove the defendant maturely and meaningfully reflected upon the gravity of his or her act. Ah, impulsive and premeditated??

[Jaded]

#631 and 632- I wondered the same thing considering SDPD took dogs there and to DW's twice. The second time they were blood hounds, better dogs....maybe he used Febreeze

Also the in the closet, my problem is after drinking, and standing there for at least an hour? Was the dog the one that peed? Sorry, but that was actually my first thought, what'd he do sneak across the hall to the bathroom? Maybe guys function differently? Heaven knows they function differently in so many other areas....

Ya know there are sooooooo many places we could go with this...just have to wait and see what shakes out.

[Mrs.Liberty]

The second time they were blood hounds, better dogs....maybe he used Febreeze

LOL!

He wouldn't need to hide in the closet since no one even checked on the poor thing. All he had to do was stand behind the closed/semi-closed door.

[rolling_stone]

Is this a clue of things to come at the trial?

And then the dog...

add your captions...

[fnord]

... just have to wait and see what shakes out.

bad choice of words when talking about guys peeing, rofl