Posted on 03/28/2002 7:54:29 AM PST by FresnoDA
DAVID WESTERFIELD TO FACE JUDGE AGAIN
( 03-28-2002 ) - A Sabre Springs man accused of killing 7-year-old Danielle van Dam and leaving her body in the East County is scheduled to be arraigned Thursday on charges of murder, kidnapping and possession of child pornography.
Along with entering a plea, David A. Westerfield, 50, may get a trial date at the hearing and find out if prosecutors intend to seek the death penalty against him if he's convicted.
Most likely, the judge will set a trial date within a 60 day timeframe. Otherwise, Westerfield's right to a speedy trial will be violated.
Attorney Bill Nimmo says it's probable that Westerfield's attorney, Steven Feldman, will waive this right.
If that happens, it could be six months to a year before the Westerfield's case goes to trial.
There could also be a possible plea bargain by the self employed design engineer to avoid a possible death penalty charge.
"The way I read the state's evidence, it's very powerful. And rarely do they bargain unless they have problems with their evidence. If they had some problems with their evidence, like there was a faulty DNA test, or if one of the witnesses had actually more contact with Westerfield... watering down the presence of the DNA... and that brought a fear in the prosecution that they could lose this case, then they might try to plea bargain," explained Nimmo.
After a three-day preliminary hearing, Superior Court Judge H. Ronald Domnitz ruled back on March 14 that there was enough evidence for Westerfield to face the charges at trial.
Superior Court Judge Peter Deddeh may assign the case to another judge for all further hearings, including the trial.
Westerfield -- who lived two doors down and across the street from the van Dam family -- is currently held without bail.
Thursday's arraignment set for 2 p.m. Stay tuned to LOCAL 8 for live coverage.
By Alex Roth
STAFF WRITER
March 26, 2002
Sometime soon, David Westerfield's lawyers must answer two basic questions as they prepare to defend their client on murder charges: When do they want the trial, and where?
The lawyers for Westerfield – who is charged with kidnapping and killing 7-year-old Danielle van Dam – must make strategic decisions about whether they would benefit from an early trial and whether they want it in San Diego County or elsewhere, according to legal experts who have been following the case.
Each choice comes with advantages and disadvantages, and the decisions by Westerfield's legal team might offer clues about their strategy, these experts predicted.
The decisions will be made against the backdrop of a case that has received as much public attention as any in San Diego County. Given the amount of publicity, Westerfield's lawyers have a legitimate shot at convincing a judge that Westerfield can't get a fair trial in San Diego, according to these experts.
"Those motions are rarely granted, but I think this case might be a very close call," said lawyer Michael Still, a former San Diego deputy district attorney.
The next hearing is scheduled for Thursday, two weeks after a judge ruled that prosecutors had enough evidence to hold the Sabre Springs engineer for trial on charges of kidnapping and murdering Danielle, whose family lived two houses away.
The girl vanished from her bedroom the first weekend of February. Her nude body was found three weeks later in a rural roadside hollow east of El Cajon. Authorities said they seized child pornography from Westerfield's computers and told a judge they believe that he kidnapped the girl to sexually assault her.
At the Thursday hearing, Westerfield is expected to enter a plea of not guilty to the charges. Superior Court Judge Peter Deddeh – the criminal supervising judge – will likely assign the case to a judge who would handle all matters from that point forward, including the trial.
Deddeh is also expected to set a trial date.
And here Westerfield's legal team has a decision to make: Get to trial as quickly as possible, or seek a postponement.
Under state law, Westerfield has a right to a trial within 60 days of Thursday's hearing, assuming the arraignment goes forward.
Defendants in murder cases almost always waive that right to give their lawyers more time to prepare, but so far lead defense attorney Steven Feldman has given no indication he plans to seek a continuance.
Because a judge issued a gag order in the case, neither Feldman nor the District Attorney's Office can comment about the strategy or any other part of the case.
But legal observers say Westerfield might benefit from getting the case to a jury quickly. Any lengthy delays give police and prosecutors more time to hunt for evidence.
"My gut instinct tells me he's going to move ahead as quickly as possible."
Other observers, though, say the case is so complicated that Feldman might benefit from putting the trial off. They cite the enormous amount of work facing Westerfield's team.
Among other things, Westerfield's lawyers might want their own experts to review the forensic evidence in the case, including DNA that prosecutors said identifies Danielle's blood on one of Westerfield's jackets and in his motor home.
They also might want their own investigators to snoop around in hopes of supporting what Feldman suggested in court is the defense theory of the case: that Danielle was kidnapped by someone else who knew the van Dams well enough to be familiar with the inside of their house.
The defense will probably need some specific evidence before a judge will allow them to make this argument to the jury, according to former prosecutor Still.
"You can't just throw it up on the wall and see if it sticks," Still said.
What's more, the defense must also prepare for the possibility that prosecutors might eventually seek the death penalty against Westerfield.
Westerfield's lawyers also must decide whether they want to keep the trial in San Diego.
Most observers predicted that the defense will ask that it be moved to another county – although one legal expert suggested that keeping the case in San Diego might have some advantages for the defense.
In the past two decades, only two cases have been moved out of San Diego as a result of pretrial publicity.
Under state law, a judge can grant a defense request to move a case to another part of the state upon finding "a reasonable likelihood that a fair and impartial trial cannot be had in the county."
If the judge grants a change-of-venue motion, the state Administrative Office of the Courts in San Francisco would come up with a list of alternative counties, one of which is selected by the trial judge.
In 1988, Carlsbad attorney Brad Patton succeeded in getting a change of venue in a high-profile case in which his client, a former Marine, was accused of helping Laura Troiani and four other Marines murder Troiani's husband, also a Marine, in a deserted area near Oceanside.
The case was moved to Ventura County and Patton's client, Kevin Watkins, was acquitted. Laura Troiani and the others were convicted.
Before requesting the move, Patton hired a jury-consulting firm to poll San Diego County residents. The poll found that most of the people in the county had heard of the case and formed opinions about it.
Patton predicted that finding an unbiased local jury would be "an extremely difficult task."
Williams cited numerous talk-radio rants by callers upset about the behavior of the van Dams, who admitted smoking marijuana and have been questioned in court about whether they have an unconventional sexual lifestyle.
"There is a significant crowd of potential jurors that don't appreciate the way the parents handled this," he said. "In some strange way, they somehow hold the parents partially responsible."
Williams added: "You only need one or two jurors in a case like this to turn things around."
Whether the pool of prospective jurors across the county has been tainted by the media blitz – most local television stations pre-empted regular programming to broadcast Westerfield's preliminary hearing – is not known.
But the publicity has stimulated public response that shows there may be confusion and misconceptions about the justice system.
Several letters to the editor of this newspaper, for instance, questioned the comments Judge H. Ronald Domnitz made in finding sufficient evidence to order Westerfield tried on the charges.
Domnitz said he found reasonable cause to believe that Westerfield was "guilty" of the offenses.
Judges and other experts say Domnitz's use of the word "guilty" was appropriate because he was simply noting that prosecutors met their legal burden under the law at a preliminary hearing.
At a trial, by contrast, prosecutors must meet the higher standard of proof beyond a reasonable doubt.
SAN DIEGO -- A San Diego man accused of murdering a little girl who lived two doors away from him and dumping her body in East County is set to be arraigned Thursday afternoon on charges of murder, kidnapping and possession of child pornography. David Westerfield, 50, is accused of murdering 7-year-old Danielle van Dam. At the hearing, he is expected to enter a plea to the charges against him. In addition, attorneys for the prosecution and defense could present motions including a request for a speedy trial or a change of venue because of the publicity the case has generated in San Diego. The district attorney's office could also announce a decision on whether it will seek the death penalty if Westerfield is convicted.
Westerfield, who is being held without bail, was arrested in late March after police received the results of DNA analysis from blood stains found on Westerfield's clothing and inside his motor home. Investigators said that the tests showed the blood was Danielle's.
Brenda and Damon van Dam reported their second-grader missing from the second-floor bedroom of their Sabre Springs home the morning of Feb. 2. Her nude body was found off a rural two-lane road east of El Cajon on Feb. 27 by volunteer searchers. The San Diego County medical examiner was unable to determine the cause of death because the body was too decomposed. Police identified Westerfield after they learned that he left the neighborhood for a weekend outing that included a journey to the beach, the desert and back to the beach. During a three-day preliminary hearing earlier this month, detectives testified that Westerfield's explanation of the trip had a number of inconsistencies and he was unusually cooperative during searches of his home and vehicles.
A San Diego police fingerprint examiner testified that a fingerprint lifted from a cabinet above a bed in Westerfield's motorhome matched prints he took from the dead girl's hands. But the technician admitted to Westerfield's attorney that he could not say when the print had been made.
The child pornography charges stem from images that police found while searching the computer drives and disks from Westerfield's computers. While that charge is a misdemeanor, Assistant District Attorney Jeff Dusek said that it would support the prosecution theory that Westerfield kidnapped Danielle for sexual purposes.
To plea or not to plea? And thereby settle old and raise new doubts on FR. This is the question all mortal posters want to know.
And could you pretty please put me on your code shrieking ping list?
I don't know if this will matter at all, but whenever I would leave my travel trailer unlocked, somehow some neighbor kids would know and they would get in it and check it out, open cabinets, jump on the beds, see if any water would come out of the faucet.
See you all back here around 2pm (forum time, Kimmie:~) Have my fire extinguisher locked and loaded.
sw
But what does puzzle me is how anyone could make a decision to abduct a small girl for sexual purposes knowing that he would have to kill her from a house not familiar to him? Even if there was a swinging session going on that would not reduce the risk of someone seeing him enter or leave or in the house.
"The way I read the state's evidence, it's very powerful. And rarely do they bargain unless they have problems with their evidence. If they had some problems with their evidence, like there was a faulty DNA test, or if one of the witnesses had actually more contact with Westerfield... watering down the presence of the DNA... and that brought a fear in the prosecution that they could lose this case, then they might try to plea bargain," explained Nimmo.
Dimbulb question ON: So, is Nimmo saying that (if) Westerfield requests to plea bargain, it's likely to be denied? Dimbulb OFF
We could write a book!
sw
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