WESTERFIELD TRIAL DECISIONS LOOM
His attorneys face basic questions on timing and venue
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.
'Gut instinct'
"It's possible that evidence might develop the more time passes and I think Steve is mindful of that," said attorney Daniel Williams, a former San Diego deputy district attorney who once prosecuted a death-penalty case in which Feldman was the opposing lawyer."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.
Time required
"You need time to put together psychological evidence (of the defendant), interviews with family and friends and church members and things," said San Diego defense lawyer Robert Grimes, who has handled several high-profile cases.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."
Talk-radio rants
But former deputy DA Williams, who won his 1989 murder case against Feldman, noted that Feldman might have tactical reasons to want to keep the case here.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.