DA seeks death in Westerfield case
KIMBERLY EPLERStaff Writer
SAN DIEGO ---- David Westerfield will face the death penalty if convicted of kidnapping and murdering 7-year-old Danielle van Dam, the district attorney's office announced Thursday.
In a brief court hearing, prosecutor Jeff Dusek said District Attorney Paul Pfingst made the decision after "careful" consideration of a review panel's recommendation and after hearing from Westerfield's defense attorneys. The text of the recommendation was not released.
 Don Boomer/Staff Photographer |
| The district attorney's office announced Thursday that accused child murderer David Westerfield will face the death penalty if convicted of kidnapping and murdering 7-year-old Danielle van Dam. |
Westerfield, 50, is accused of stealing Danielle from her second-story bedroom sometime after her father tucked her into bed Feb. 1. Her body was found nearly four weeks later under an oak tree in the rural East County.
The self-employed engineer, who lived two doors down from Danielle, has pleaded not guilty.
Westerfield's attorney, Steven Feldman, unsuccessfully opposed the death-penalty filing. He said the prosecution was giving notice too close to the May 17 trial date, and he called the timing a strategic attempt to force Westerfield "to compromise his right to a speedy trial."
Feldman was adamant that the defense intends to move ahead with the case. He said delaying the trial was not an option.
During the hearing, Westerfield, dressed in a charcoal-gray suit, sat silently next to his attorneys.
A defendant has a right to trial with 60 days of an arraignment following a preliminary hearing. Death-penalty cases rarely move that quickly because of the enormous workload involved in preparing for a trial where a defendant's life is on the line. Most don't reach a jury until one year or more after the alleged crime was committed.
Superior Court Judge William Mudd expressed concerns about balancing Westerfield's right to a speedy trial and the realities of preparing a death-penalty case.
"I've never heard of a death-penalty case in this or any other community going to trial in 60 days," Mudd said.
Legal experts said a judge could delay a trial if he believes it is in the defendant's best interest, but such a move would be highly unusual.
Mudd noted that the district attorney's office immediately contacted the defense team when the death-penalty decision was made.
Since 1995, a panel of high-level prosecutors, including Pfingst's second-in-command, has reviewed all potential death-penalty cases in San Diego County before making a recommendation to Pfingst.
The panel looked at Westerfield's character, any previous criminal history, and the impact Danielle's murder has had on the community and her loved ones. And it considered the likelihood of a jury returning a death verdict.
The defense also had an opportunity to make its case. Dusek said Thursday that the district attorney's panel and Pfingst held multiple meetings with Westerfield's defense team. The most recent was last week.
Dusek said the decision should not come as a surprise to the defense.
"They knew in all probability this was going to be a death case," he said.
State law reserves capital punishment for so-called special circumstance cases, such as when a murder victim is tortured. In Westerfield's case, the special circumstance allegation is murder committed during a kidnapping.
Westerfield is the 23rd defendant in San Diego County to face the death penalty since Pfingst established the review panel.
In another development, Mudd declined a defense request to have copies of photographs retrieved from Westerfield's home computer. Instead, he ruled, Westerfield's attorneys will be given opportunities to privately look over the materials at either the district attorney's office or police headquarters.
Prosecutors argued that reproducing the images could potentially put the district attorney's office in the position of violating laws against copying and distributing pornography.
Besides kidnapping and murder, Westerfield also faces a misdemeanor charge of possessing materials depicting minors in sexual conduct. Westerfield's attorney, Robert Boyce, argued that the defense was entitled to have its own copies and he wanted an expert to review the material to determine whether any of the images could be legally classified as pornography.
Contact staff writer Kimberly Epler at (760) 739-6644 or kepler@nctimes.com.
4/26/02