PROSECUTORS TO SEEK DEATH PENALTY IN WESTERFIELD CASE

Union Tribune/KFMB ^ | April 25, 2002 | Harry Jones

[FresnoDA]

PROSECUTORS TO SEEK DEATH PENALTY IN WESTERFIELD CASE

( 04-24-2002 ) - There's a major development in the case against the man accused of killing 7-year-old Danielle van Dam.

Prosecutors have decided to seek the death penalty against David Westerfield, 50.

The District Attorney will make the final decision on whether to seek the death penalty, but only after he gets a recommendation from a panel of prosecutors that review death penalty cases.

Westerfield has been eligible for the death penalty ever since prosecutors filed a special circumstance charge against him for murder during the kidnapping of young Danielle.

The motion to seek the death penalty against Westerfield will be discussed at a court hearing Thursday morning.

Danielle's parents, Brenda and Damon, may have been a factor in the decision to seek the death penalty.

The District Attorney usually consults with the family of the victim to get their input on whether to file death penalty charges.

The District Attorney's decision to seek the death penalty does not eliminate the possibility of a plea bargain in the case down the road.

A hearing to discuss the prosecution's motion will begin Thursday at 9 a.m.

David Westerfield's trial is scheduled to begin on May 17 and pre-trial hearings will begin in a-week and a-half.

[Rodney King]

Good news!

[FresnoDA]

PING...John Walsh clapping.....!!!) ) )

[FresnoDA]

Westerfield: Will Lawyers Seek Death Penalty?

Westerfield Accused Of Kidnapping, Killing Danielle Van Dam

Posted: 7:31 a.m. PDT April 25, 2002
Updated: 7:42 a.m. PDT April 25, 2002

SAN DIEGO -- Prosecutors in the Danielle van Dam murder case are expected to announce Thursday whether they will seek the death penalty against her accused killer.

David Westerfield, a neighbor of the 7-year-old girl reported missing from her Sabre Springs home Feb. 2, is charged with murder and the special circumstance allegation of murder during a kidnapping.

Brenda and Damon van Dam's daughter was the subject of a wide-ranging search that lasted nearly a month before the second-grader's body was found among some trash along a rural Dehesa road on Feb. 27.

Westerfield, who lived two doors away from the van Dams, was questioned almost immediately in connection with the girl's disappearance. Police kept Westerfield under surveillance and initially arrested him Feb. 22 on suspicion of kidnapping.

He was charged with Danielle's murder a day before the body was found.

During a hearing last week, the judge reaffirmed the gag order placed on attorneys and witnesses in the days following Westerfield's arrest, and extended it until the trial, set for May 17.

Mudd broadened the order to include any county employee who may have anything to do with the case, including those who work in his courtroom.

Mudd ordered television crews to stay out of the north corridor on the third floor of the downtown county courthouse while pretrial proceedings are under way. An exception was granted for members of the news media covering other cases.

The judge has said he wants to work out a plan to allow for live pool television and radio coverage of the trial.

Westerfield's attorneys, who have suggested wrongdoing by police, were granted access to the names, addresses and phone numbers of people involved in two complaints against an unnamed San Diego police officer.

The attorneys allege San Diego police detectives improperly questioned their client and held him against his will when he was not technically under arrest.

The judge is expected to hear arguments on pretrial motions the week of May 6.

[FresnoDA]

Death penalty question looms in Westerfield case

KIMBERLY EPLER
Staff Writer

SAN DIEGO ---- The decision on whether David Westerfield will face life in prison or death if convicted of kidnapping and murdering 7-year-old Danielle van Dam could come as soon as today.

The decision rests in the hands of District Attorney Paul Pfingst.

Death penalty standards

The district attorney's office's Special Circumstance and Major Case Review Panel weigh and consider the following factors before making a recommendation in a potential death penalty case:

The circumstances of the crime.

 

• The presence of force or attempted use of force by the defendant, or an implied threat to use force or violence.

   

• Whether the defendant had any prior felony convictions.

   

• Whether the defendant acted under the influence of extreme mental or emotional disturbance.

   

• Whether the victim was a participant in the accused's homicidal conduct or consented to the homicidal act.

   

• Whether the crime was committed under circumstances the defendant reasonably believed to be a moral justification or an extenuation of his or her conduct.

   

• Whether the defendant acted under extreme duress or under the substantial domination of another person.

   

• Whether at the time of the offense, the capacity of the defendant to appreciate the criminality of his or her conduct, or to conform to the requirements of the law, was impaired as a result of mental illness or the effects of intoxication.

   

• The age of the defendant at the time of the crime.

   

• Whether the defendant was an accomplice to the offense and whether his or her participation in the commission of the offense was relatively minor.

   

• The defendant's character, background, history, mental and physical condition.

   

• Any other circumstance that mitigates the gravity of the crime even though it may not be a legal excuse for the crime.

   

• The impact of the crime on the community and those close to the victim.

   

  ---- Source: the San Diego County district attorney's office

   

  ---

Although the prosecution and Westerfield's defense team are under a court-imposed gag order not to discuss the case, there was mounting speculation that Pfingst will announce his decision today in a hearing in front of Superior Court Judge William Mudd.

Private attorneys said a timely decision is important because of the work involved in preparing for a death penalty case. State law reserves capital punishment for so-called special circumstance cases, such as when a murder victim is tortured or kidnapped for sexual purposes.

Prosecutors say Westerfield, 50, stole the Sabre Springs second-grader from her pink and purple bedroom and murdered her. Danielle's body was found nearly four weeks after her parents reported her missing Feb. 2.

Westerfield, a self-employed engineer and twice-divorced father of two, has pleaded not guilty to the charges. He lived two doors down from the van Dams. A trial is set for May 17.

Special circumstances

Before the district attorney decides whether to seek the death penalty, a panel of top prosecutors reviews the case and recommends a punishment. There are more than 30 special circumstances that can qualify a murder defendant for execution.

Many have to do with killing law enforcement officials, such as a police officer or a judge. Others cover the murders of witnesses and revenge killings. Multiple murders also qualify for the death penalty.

The panel will have looked at Westerfield's character, any prior criminal history and the impact Danielle's murder had on the community and her loved ones before making a recommendation. They also will consider the likelihood of a jury returning a death verdict.

Defense attorneys also can argue against death. Often they will submit statements from a defendant's family members, their colleagues and even their favorite grammar-school teacher.

"Basically, you're trying to depict your client in the best possible light," said David Bartick, a criminal defense attorney who has represented several clients who qualified for the death penalty.

Bartick said Pfingst also meets with defense attorneys before making a final decision.

"I can honestly say Paul Pfingst is very independent in that regard," Bartick said. "I've had cases where he's gone against the recommendation. He does what he thinks is proper."

A long process

In the end, Pfingst must balance the shocking nature of Danielle's murder against the strength of the case. How Danielle died and whether she was sexually assaulted has not been released and may never be known. Her body was badly decomposed.

While the crime may have struck a deep chord in the community, Westerfield apparently has nothing more than a misdemeanor drunken driving conviction in his past. He also is a father. Family and friends have described him as a gentle man.

If Pfingst decides to seek the death penalty, both sides will have to prepare for a two-prong trial.

In the first part, a jury will decide whether the prosecution has proven its case beyond a reasonable doubt and whether the special circumstance allegation of kidnapping is true. If Westerfield is found guilty on all counts, the jury will hear more testimony during the penalty phase before deciding whether he should be executed or spend the rest of his life in prison.

"Clearly, a decision to seek the death penalty significantly alters the way a case is prepared for trial," said Kerry Steigerwalt, a criminal defense attorney who has represent several murder defendants.

Steigerwalt said Westerfield's lack of a violent criminal record, drug use or weapons charges may give Pfingst pause in seeking the death penalty.

"I think they've already made the decision and the decision is they aren't going to seek death," he said.

The timeline for making the decision has been fast-forwarded in Westerfield's case ---- which is moving ahead at breakneck speed. Murder cases normally don't go to trial until one year or more after the alleged crime was committed.

A brief history

The state has been imposing the death penalty on and off for more than 150 years. There was a 25-year break in executions after 1967 due to various California Supreme Court and U.S. Supreme decisions.

The last inmate execution in a San Diego case was Robert Alton Harris in 1992, who was convicted of kidnapping and murdering two teen-age boys in 1979.

The process from sentencing to execution is long and involved. On average, the death row wait is more than 12 years.

Since 1994, the San Diego district attorney's office has sought the death penalty against 14 defendants. Eight were sent to death row. Those include Brandon Wilson, who slit the throat of 9-year-old Matthew Cecci in an Oceanside beach restroom, and Susan Eubanks, a San Marcos woman who murdered her four sons.

None of those eight inmates has been executed.

 

Contact staff writer Kimberly Epler at (760) 739-6644 or kepler@nctimes.com.

4/25/02

[DoughtyOne]

John Walsh has done a lot of good, but I saw a side of him I wish I hadn't when he tried to disassociate the VanDam lifestyle with what took place. I have no easy explanation for how Westerfield could have gotten Daniel out of that home late at night. Something does not ring true here, and I'm not writing off culpability on the VanDam's part.

[Amore]

I can't understand the many people here who have condemned the Van Dam's debauchery both in general and on that night and yet turn around and say they can't see how he got her out of house. Given Brenda's condition, and quite likely Damon's as well, I continue to think it would have been not very difficult at all. And most children ARE very heavy sleepers. Almost any parent who's lugged one of their children around a few times can attest to that.

[MizSterious]

From the previous thread:

"But the Jury better be 150% sure DW did it, and having to impose the Death Penalty will cause them to examine every spec of evidence with a microscope, so to speak."

Which brings up the phrase, "reasonable doubt." In death penalty cases, I believe it has to be proven beyond reasonable doubt? Amore, could you weigh in on this?

If so, you can read the transcripts and find plenty of cause for reasonable doubt--but let me add that if they have something irrefutable, such as DNA under her fingernails, that will likely trump these others.

One bit of reasonable doubt is any evidence found in the motor home. Even without my "Brenda and DW affair" theory, it appears Danielle could have entered the motor home:

Page 145 March 11th:Christina Hoeffs

18 Q. You wouldn't be there watching him the entire
19 time that the motorhome was there say for this two day
20 period before he left on his trip, though, would you?
21 A. No.
22 Q. You would just occasionally see the motorhome,
23 various items, and perhaps Mr. Westerfield?
24 A. Yes.
25 Q. And would you see the motorhome door open or
26 closed during this period of time?
27 A. Both.
28 Q. Both open and closed?

146

1 A. Yes.
2 Q. But you wouldn't see Mr. Westerfield going in and
3 out; is that correct?
4 A. Again, I cannot say that I've ever seen him step
5 foot into the motorhome or step foot out of. I couldn't
6 positively say that I had seen that. I may have. I can't
7 positively say I have.

If Mrs. Kravitz couldn't see Mr. Westerfield entering or departing the motor home, she would not have seen neighborhood children entering or leaving either--and the doors were often open.

Then there's the issue of sexual molestation. With the evidence revealed at the hearing, it cannot be proven:

Page 104 March 11th. Dr. Brian Blackbourne/Feldman

1 Q. Well, one of the things that you're trained to
2 do, and certainly there were lots of law enforcement that
3 were interested, as was the community, was to look to
4 determine whether or not there was any evidence of
5 sexual abuse; isn't that right?
6 A. Yes.
7 Q. And I think you told us on direct examination
8 that you had swabbed an area or some areas for later
9 forensic evaluation by law enforcement; is that correct,
10 sir?
11 A. That's correct.
12 Q. With regard to the areas that you swabbed, could
13 you please tell me what were those areas?
14 A. The rectum and another tubular structure which
15 either was a vagina or the bladder. Probably the bladder.
16 Q. And those swabs, did you look at them
17 microscopically?
18 A. No. I transferred those over to the criminalist
19 from the San Diego Police Department.
20 Q. And who was that?
21 A. Savage and Dulaney.
22 Q. In the ordinary course of business, would that be
23 something that you, sir, as a forensic pathologist just
24 would look at?
25 A. We normally make one set of slides for ourselves,
26 and then give one set of slides to the law enforcement.
27 Q. In this case you did not do that?
28 A. I did not do that.

105

1 Q. Why?
2 A. Because the tissue was so deteriorated we just
3 gave them all to the police.
4 Q. So all the tissue was --
5 A. Yes.
6 Q. Because in your view there wasn't really anything
7 that could -- inferences couldn't be drawn from what was
8 there because it was too deteriorated?
9 A. Yes.

Interesting. Q. Because in your view there wasn't really anything that could -- inferences couldn't be drawn from what was there because it was too deteriorated? A. Yes.

I would expect the defense, then, to challenge the "cause of death" conclusion. To us, it might seem more cut and dried, but in truth, they didn't have enough of the wee one left to even arrive at a verifiable cause of death. Even the cause of death is based on circumstantial evidence.

Then there's the much-vaunted porn issue. No child porn was actually found on his computer:

Q MR. ARMSTRONG TOLD YOU THAT HE FOUND NO
21 IMAGES DEPICTING CHILDREN ENGAGED IN SEXUAL ACTS?
22 A HE FOUND THAT HE DIDN'T BELIEVE THEY WERE
23 PREPUBESCENT PHOTOS OR DIGITAL IMAGES, WHICH
24 APPARENTLY IS WHAT HE GOES BY. HE SPENT ABOUT AN
25 HOUR-AND-A-HALF LOOKING THROUGH THE PHOTOS.
26 Q HOW DO YOU KNOW HOW LONG HE SPENT?
27 A I WAS IN THE OFFICE WITH HIM.
28 Q BUT DIDN'T YOU SAY THAT YOU DIDN'T WORK

282

1 WITH HIM?
2 A HE REQUESTED TO COME IN AND LOOK AT THE
3 IMAGES. HE SAID HE HAD BEEN REQUESTED TO LOOK AT IT
4 BY LIEUTENANT COLLINS. SO WE ALLOWED HIM TO EXAMINE
5 THE COMPUTER.
6 Q THIS WAS ALL 67-, 68,000 IMAGES FROM THESE
7 COMPUTERS; IS THAT RIGHT?
8 A THAT IS CORRECT.
9 Q AND SO YOU DISAGREE WITH MR. ARMSTRONG'S
10 CONCLUSIONS; IS THAT RIGHT?
11 A NOT AT ALL

So. A HE FOUND THAT HE DIDN'T BELIEVE THEY WEREPREPUBESCENT PHOTOS OR DIGITAL IMAGES, WHICH APPARENTLY IS WHAT HE GOES BY. HE SPENT ABOUT AN HOUR-AND-A-HALF LOOKING THROUGH THE PHOTOS. That's going to give reasonable doubt about the pedophile issue. Also expect to see witnesses talking about DW's interest in adult females, including some people who complained about being ogled by him on some of his camping trips. And remember Brenda's testimony that he wanted to be introduced to her friends (who happened to be adult females).

In re-reading the transcripts, I'm convinced that unless they've got DW's skin under Danielle's fingernails, this death penalty is going to be a hard sell.

[FresnoDA]

Miz....Bump to your transcript post....seems to pose a lot of questions, that go in complete contradiction to the guidelines spelled out in the NC Times article.....FDA

[spectre]

It could have been done.

It also is just as possible that the child was killed before Brenda came home.

Actually, any character in the house could have done it.

I don't understand people who dismiss this possiblility so easily.

sw

[Mrs.Liberty]

But Amore..Brenda stated she was clear-headed! ;-)

[DoughtyOne]

If it is established that Brenda and Westerfield were closer than is now known, we've got another problem. If Daniel is tied to that motorhome prior to that night, any DNA found there becomes suspect. I've seen pictures that lead me to think that Daniel was a young gangly kid who like other children, would be prone to occasional bleeds from minor injuries. There are all manner of explanations for Daniel's dna being found in his motorhome under certain circumstances. It remains to be seen how this is going to be explained. Is this an OJ case, or is it a Richard Jewel case? Stay tuned.

[Mrs.Liberty]

I am inclined to agree with you on this, Miz... If the prosecution is going to point to these arm scratches as evidence, and then cannot get a DNA match on fingernail scrapings, that can put the whole case in doubt. I wonder if they already have the DNA evidence back, and that is why they decided to go for the death penalty.

[MizSterious]

Correct, Mrs.Liberty! Not only was Brenda, by her account, clear headed, but remember Damon's restless night. Up, down, up, down, either to the bathroom or not, he couldn't recall--etc. So there was a lot going on in tht house that night. With all that activity, adults moving around, coming home from bars, burglar alarms blinking--well, ya do kind of have to go hmmmmmm....

[FresnoDA]

hhmmmmmmm!!!

[MizSterious]

Is anyone here listening to KFMB in San Diego? Apparently there's a hearing going on today. This was just reported on "another" board--

Dusek is seeking the death penalty, but refuses to turn over critical materials to the defense. Feldman has to go to the police station to view alleged porn..Dusek says he cannot legally copy this information for the defense. Other discovery is slow in coming to the defense, and it's being said that the DA is stalling for more time to build their "case".

Feldman refuses to ask for a continuance, death penalty or not, he said they're going to trial on May 17th.

This according to KFMB Ch. 8 here in San Diego.

Wow. Watch the news sites later today, looks like more news coming down the pike.

[Amore]

Since you've always been polite to me, and since you've nicely asked me this question twice, I went and researched it. Apparently, yes, it is beyond a reasonable doubt. Here’s a portion of the controlling statute:

§ 190.4. Special findings on truth of each alleged special circumstance; penalty hearing; application for modification

(a) Whenever special circumstances as enumerated in Section 190.2 are alleged and the trier of fact finds the defendant guilty of first degree murder, the trier of fact shall also make a special finding on the truth of each alleged special circumstance. The determination of the truth of any or all of the special circumstances shall be made by the trier of fact on the evidence presented at the trial or at the hearing held pursuant to Subdivision (b) of Section 190.1.

In case of a reasonable doubt as to whether a special circumstance is true, the defendant is entitled to a finding that it is not true. The trier of fact shall make a special finding that each special circumstance charged is either true or not true. Whenever a special circumstance requires proof of the commission or attempted commission of a crime, such crime shall be charged and proved pursuant to the general law applying to the trial and conviction of the crime.

Now, in his case if the special circumstance is "kidnapping" that would pretty much be definitive. If they find he murdered her, they've pretty much concluded he kidnapped her. OTOH, if the special circumstance is the sexual molestation, in this case THAT would be much harder to prove by what I call "BURP" (beyond a reasonable doubt).

[MizSterious]

Thank you so much for looking that up for us! I had thought it was "beyond reasonable doubt" but I think I got that knowledge from watching Perry Mason or something. Not exactly reliable.

[spectre]

Looks like the DA IS stalling? What else would you call it?

Westerfield deserves his day in court as quickly as possible.

sw

[Mrs.Liberty]

Yes, I noticed on the other board you have been two-timing us here. Just don't forget where your loyalites lie.