New physical evidence about Danielle van Dam's disappearance and salacious details about her parents' sex life came out during the first week of David Westerfield's capital murder trial. Posted on 06/10/2002 10:17:56 PM PDT by FresnoDA
By Kristen Green
UNION-TRIBUNE STAFF WRITER
June 9, 2002
New physical evidence about Danielle van Dam's disappearance and salacious details about her parents' sex life came out during the first week of David Westerfield's capital murder trial.
Legal experts say it's too early to determine the significance those facts will have on the outcome of the case.
The trial moved along fairly quickly, as both Brenda and Damon van Dam took the stand to testify about the events leading up to their 7-year-old daughter's disappearance. Attorneys have said the trial could last as long as 11 more weeks.
"I think there's an enormous amount to learn in this case, and we're not going to know it all until the end," said San Diego criminal defense attorney Knut Johnson, who is not involved in the trial.
The San Diego Superior Court testimony hinted at, but didn't fully explain, the prosecution's theory of how Westerfield, 50, might have entered the van Dam home and kidnapped Danielle.
Westerfield's lead attorney, meanwhile, told the jury that scientific evidence would prove his client's innocence.
In his opening statements, Steven Feldman suggested Danielle could have been kidnapped by any number of people her parents invited into their home to engage in "risque behavior." His strategy, experts say, is to raise questions in jurors' minds about whether someone other than Westerfield could have kidnapped the girl.
But Deputy District Attorney Jeff Dusek told the jury he has physical evidence that connects Westerfield to Danielle's death. He said the second-grader's blood, hair and fingerprints were found in Westerfield's motor home, which he occasionally parked in front of his Sabre Springs residence. When Danielle was taken from her bed, Westerfield lived two houses from the van Dams.
Dusek told the jury that Danielle's hair was also found in the trash in Westerfield's garage and that fibers similar to those in her bedroom were discovered in the motor home. The prosecutor said fibers found inside the bag in which authorities placed Danielle's body before the autopsy matched fibers in Westerfield's laundry room. Dusek didn't elaborate on what kind of fibers were found.
Danielle's nude body was discovered Feb. 27 under a tree on Dehesa Road, 25 days after her mother went to wake her for breakfast and realized she wasn't in her bed. Westerfield was arrested Feb. 22.
Throughout the first week of the trial, the attorneys showcased two completely different styles, which experts say were indicative of their personalities. Feldman is an animated performer, gesturing wildly during his opening statement and questioning of witnesses. Dusek, meanwhile, projects an image of somber dignity with his deep voice, subdued delivery and chiseled looks.
But it's hard to say whether the men's styles will have much impact on the jury deliberations.
"They're both very competent, very able in the courtroom, and they both know their case," said San Diego criminal defense lawyer Michael Pancer. "One might be more interesting to listen to than the other, but in the end, I don't think that's what matters."
Legal experts said the prosecution put Damon and Brenda van Dam on the witness stand early on to establish the sequence of events the night before Danielle disappeared.
"That's the most compelling emotional testimony in the case," Johnson said.
Damon van Dam testified that he stayed home Feb. 1 to baby-sit the couple's three children while Brenda went out to a Poway bar with two friends.
She testified that David Westerfield was at the bar when she and her friends got there, and that he bought them drinks. She said she doesn't know what time he left the bar.
Damon van Dam testified that he put the kids to bed at 10 p.m. and fell asleep before 11 p.m. He awoke at 1:45 a.m. because his dog, Layla, a Weimaraner, was whimpering. The dog doesn't bark because she grew up on a farm where the dogs had been rendered mute.
He said he let Layla into the back yard to relieve herself and then brought the dog back inside a few minutes later.
When Brenda van Dam returned about 2 a.m. with two girlfriends and two male friends who were also partying at the bar, she noticed a red light flashing on the home security system.
She searched for an open door or window and found a side garage door open. The door had been opened earlier in the evening when she and her friends were smoking marijuana in the garage.
When the couple's friends left about 2:30 p.m., after snacking on cookies and reheated pizza, Damon and Brenda van Dam went to bed.
About 3:15 or 3:30 a.m., Damon van Dam awoke and noticed a red light flashing on the security system. He went downstairs and found a sliding glass door leading to the back yard open 6 to 10 inches. He closed it and went to bed.
Experts said those details will be vital for the jury to understand how and when someone might have slipped in and out of the house.
After testifying about the sequence of events leading up to Danielle's kidnapping, the couple also answered Feldman's questions about their sex lives. Television viewers across the nation learned about Damon and Brenda van Dam's extramarital activities, as Court TV broadcast the trial live.
Brenda van Dam admitted to having sex with her two girlfriends and their partners, and Damon van Dam admitted he had sex with both of Brenda's girlfriends. He also said he didn't tell police that he smoked marijuana the night before Danielle disappeared because he didn't want to get into trouble.
Damon van Dam completed his testimony Wednesday; his wife completed hers Thursday.
It will be the jury's responsibility to decide whether any of the details of their personal life are relevant to the issue of who killed Danielle.
The couple's appearance on the witness stand drew dozens of curious San Diegans to the courthouse to vie for a seat in a courtroom filled with spectators each day.
The van Dams' testimony also was broadcast live by most local television stations, which pre-empted normal programming.
This week could be less interesting for onlookers, as experts believe the prosecution will begin presenting scientific evidence about DNA.
A gag order in the case prevents the attorneys from commenting on the case or releasing a list of the 75 witnesses they plan to call.
Garry, DW's friend is on...he is a mature, nice-looking, well-spoken guy. Dave hangs with better people than the van Dams...
sw
June 6, 2002
Oh, to be a juror ordered by Judge William Mudd not to watch, hear, read, say or publish anything about the Westerfield trial.
Just think: outside the courtroom, your time all your own, free and clear.
But for those of us fully exposed to the media Maelstrom, the trial never adjourns. Running commentary, much of it feverish or demented, is heard 24/7.
For example, here's what I received at 3 a.m. in the metal fillings of my molars:
CALLER 1: I've been thinking about this all night. I started out believing Westerfield did it – I mean, I was ready to convict, quite frankly – but after Steven Feldman's energetic, entertaining opening statement for the defense, I'm beginning to have my doubts. I mean, prosecutor Jeff Dusek was so flat in comparison, and he messed up names, and, I don't know, it just seems to me that the tide has turned. Feldman was as animated as Robin Williams doing stand-up. And I loved the way he sucked the air as if he was dragging on a joint. And snapping his fingers like a hipster. Very persuasive!
RADIO HOST (deep, resonant voice): So you believe the defense won the crucial opening day. A very perceptive, a very honest, a very emotionally genuine, a very well-reasoned response. Thank you, sir, and call again.
CALLER 2: I know the blood and hair look bad for Westerfield – I'm not one of those alien-conspiracy kooks! – but those van Dams are so creepy. And why did Damon reject Peter as his given name? It's weird. And what was he wearing? He looked like a gas-station attendant or an ice-cream vendor. Don't grown men wear ties and coats when testifying in their daughter's murder trial? I don't know, it just makes me sit up in bed and worry all night.
HOST: (deep, resonant voice): Thank you for your astute observations. Now try to get some sleep.
I know, I know.
Only judges – and sober ones at that – are allowed to poke fun at criminal trials.
Mudd's tension-relieving cracks about his hairline, phone calls from wackos, the hapless Padres, inaccurate county clocks and semiannual Nordstrom sales aside, a capital trial is somber business.
It's also true, however, that this TV event holds us in thrall because so much of it involves squirmy admissions.
Though outwardly your typical young suburban parents, much of the van Dams' behavior, real and rumored, would be thrown out by trailer trash.
Could at least one juror – and that's all it takes to hang a jury – perceive the van Dams as unwitting accomplices in their child's death?
Could the prosecution win the battle of the DNA evidence but lose the case against Westerfield because the jury dislikes and/or distrusts the van Dams and their circle of sex partners?
I submit to the million-member public jury that that's why we can't turn our gaze away.
This is our O.J. Our trial of the new century.
From the vantage point of the distant future, we'll recall that the case moved at dizzying warp speed.
The defense failed to request customary delays. The jury selection was completed in overdrive. The trial was not moved out of the county, though conventional wisdom said it could have been. The jury was not sequestered, at least in its early stages.
We'll remember that we became experts on insect breeding in a decomposing body, measuring DNA probabilities in the quadrillions-to-one, rehydrating mummified skin and other esoterica of forensic investigation.
But I suspect we'll never forget what the jury thought about the van Dams and what role that estimation played in its deliberations over the guilt or innocence of David Westerfield.
That's why we can't look away.
SAN DIEGO ---- David Westerfield, the man accused of killing Danielle van Dam, was described Monday as "creepy" by a friend of the girl's parents who saw him at a bar hours before the 7-year-old disappeared.
"He was very quiet and weird," Denise Kemal, one of two women who went out drinking with Brenda van Dam, testified of Westerfield, the self-employed engineer standing trial for the crime.
The 28-year-old flight attendant said Brenda van Dam introduced her to Westerfield on Feb. 1 when they arrived at a Poway bar for a girl's night out.
Kemal said she thought it was "creepy" the way Westerfield stood watching her, the other two women and some of his friends play pool without saying anything. Judge William Mudd ordered the remarks stricken from the record after Westerfield's attorney, Steven Feldman, objected to the characterization.
Kemal also testified she saw Westerfield outside of his house the next afternoon when she went to the nearby van Dam home to speak with police about Danielle's disappearance.
Kemal was one of five witnesses on Day Four of Westerfield's trial on charges he kidnapped Danielle from her bedroom the first weekend of February and murdered her. Westerfield lived two houses down from the Sabre Springs second-grader.
Westerfield, a twice-divorced father of two, faces the death penalty if convicted. He also is charged with a misdemeanor count of child pornography. Prosecutor Jeff Dusek said that he expects to wrap up his side of the case by the end of June.
Danielle's parents, Brenda and Damon van Dam, did not attend Monday's proceedings. Judge Mudd told the couple last week that they would be notified when they could sit in on the trial. Each spent several hours on the witness stand last week, answering questions about their drug use, giving intimate details about their marriage, and describing the events leading up to their daughter's disappearance. The couple also has two sons.
Other witnesses on the stand Monday were Rich Brady, a friend of the van Dams; Keith Stone, Brady's friend and ex-brother-in-law; Garry Harvey, a friend of Westerfield's who met him at Dad's Cafe and Steakhouse on Feb. 1; and Yvette Wetli, Garry's friend, who also was at Dad's.
Most of the witnesses gave the same basic details about the events at Dad's the night Danielle was last seen alive. There were some variations. When questioned by attorneys, some of the witnesses denied making statements contained in police reports or conversations assigned to them by previous witnesses.
Kemal, a petite brunette dressed in a purple sweater and black pants, spent much of her testimony talking about the night Danielle disappeared. She testified she smoked marijuana in the van Dams' garage with Brenda van Dam and another friend, Barbara Easton, before they went out.
Kemal also said she got a phone call while in the garage and went out the side door to try and get better reception. When she came back in, Kemal said she closed the door, but didn't lock it. She testified the door was wide open at about 2 a.m. when she and Brenda van Dam went to check it after finding a warning light blinking on the home alarm system.
Kemal said she found out about Danielle's disappearance on Saturday, Feb. 2, when Damon van Dam made a brief phone call to say police wanted to talk to her about the side door.
"He told me quickly that they couldn't find her," Kemal said. "That she was missing."
When asked by Feldman, Kemal insisted she never had a conversation with Brenda or Damon van Dam about withholding from police their previous sexual relationship. Kemal testified about having a sexual encounter with Damon van Dam nearly three years ago while Brenda van Dam was with Kemal's then-husband.
The van Dams each admitted to having a sexual relationship with the two women Brenda went out with the night Danielle vanished and their male partners. Westerfield's defense team has attacked the credibility of Danielle's parents, questioning their integrity and the company they kept.
The defense attorneys have implied that the van Dams' lifestyle put their children at risk. The prosecution, meanwhile, has argued Westerfield stole Danielle from her home to satisfy his sexual fantasies for young girls.
Kemal testified the couples "swapped" their spouses after a Halloween party. Kemal testified the van Dam children were staying somewhere else that night.
She said the Halloween gatherings were not "risque," but simply costume parties complete with prizes for first, second and third place. Kemal said she briefly talked to Westerfield the morning Danielle was discovered missing after seeing him on the street.
"He said, 'I can't believe what happened,'" Kemal said, adding Westerfield told her he left by 9 p.m.
Also on the stand were Brady ---- a van Dam family friend ---- who admitted he supplied the marijuana the three women smoked that night. He said he and Stone ran into Brenda van Dam and her friends at the bar. Brady and Stone each testified they went back to the van Dam house to eat pizza about 2 a.m.
When asked by Feldman, they each said they didn't remember Brenda van Dam or Kemal talking about a side garage door being opened after they arrived at the van Dam house. Stone said Damon van Dam looked "surprised" to see him and Brady at his kitchen table when he came downstairs.
Under questioning from the prosecutor, Dusek, Stone and Brady said they did not take Danielle out of the house. Kemal also said that neither she nor Barbara took Danielle.
Later in the afternoon, Westerfield's friend, Harvey, took the stand. He said police searched his residence twice after Danielle disappeared, once with police dogs and a helicopter. A Fallbrook resident and a truck driver, Harvey said he has known Westerfield for about four years after meeting him at another Poway bar.
Harvey didn't look at Westerfield during his testimony. He said he went to a barbecue at Westerfield's house about three weeks before Danielle disappeared and he was meeting with Westerfield at the bar that night because he was helping Westerfield work out some business deals with his roommate.
He said Westerfield introduced him to Brenda van Dam and her two friends. He said he remembered the way Denise had been dancing the previous weekend.
Harvey said he didn't stay with Westerfield the whole evening . The last time he saw Westerfield was about 11:30 or 12:30 when he went to meet Wetli. When Harvey and Wetli returned to Dad's around 1 a.m., Westerfield was no longer in the bar, they each testified.
Wetli testified she had an "uncomfortable" interaction with Kemal and Brenda van Dam's other female friend, Barbara, that night. She said Barbara was sexually aggressive toward her.
Testimony in the trial continues today.
People can rail all they want about the "sleazy defense team" (that's what they always call defense attorneys), but in this trial, Feldman is simply allowing the witnesses to be themselves, in all their prevaricating wonder. And they've been all too willing to assist the defense, as lie after lie is presented, knocked down, and replaced with yet another lie. Not a one of these granola bars can be trusted to truthfully recite the grocery list, let alone facts important to the case.
And so, it comes down to this--where's the evidence? Perhaps the evidence can overcome the unholy stench of this motley crew--but lest we think we've seen the last of them, "forgedaboudit" as they say--they're going to be recalled, so the jury will get one last glance at the prosecution's star witnesses before starting to deliberate.
And what's with the police statements? Most of these witnesses have claimed that the police changed their statements--not in small ways, but large ways. Ok, I know errors happen, maybe once or twice something gets changed. But all of them?? Or is it that these fine, upstanding, trustworthy (try not to laugh too hard) witnesses regretted their statements in hindsight, and adopted the "changed statement" stance--enmasse?
Surely the jury is wondering about this too. One or two--maybe. All? Unlikely.
She obviously had her eye on women that night (eg., Welty, BVD) not DW OR Keith Stone.
She had access to the upstairs of VD home.
BVD was uncomfortable having Barb around Danielle.
She knew the dog.
She had her car that night.
She and DVD had a "previous" relationship.
Never forget, that all may not be as it seems.
I am sorry to ask so many questions, but I am only catching bits and pieces of the trial.
I don't know if anyone answered you. Brenda sells books to school libraries.
Nancy Grace on Court TV is finally getting a snapshot into reality, and says the parents lifestyle doesn't look good at all...for the Prosecution. I think the more she hears, the more the possibility someone in the Swinging Pizza Party Crowd could have just as easily committed this crime...if not more...will click with her!
Trial getting ready to resume..
sw
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