Sex Exploited in Van Dam Trial, Attorneys Say

As the trial of the man accused of killing 7-year-old Danielle van Dam moved within a day of going to the jury, opposing attorneys Wednesday exchanged bitter accusations about which side is exploiting the issue of sex.

Deputy Dist. Atty. Jeff Dusek is slated to finish his rebuttal argument today, and the case against David Westerfield should then be presented to the six-man, six-woman jury after 27 days of courtroom activity, testimony by 116 witnesses, and more media coverage than any criminal case in San Diego County history.

Despite the dueling accusations about sexual activity, the case may be decided by which set of scientific experts the jury believes. Dusek presented criminalists and DNA experts who say blood, hair and fibers link Westerfield to the crime, while defense attorney Steven Feldman called two insect experts who asserted that the bugs found on Danielle’s body show she was killed after Westerfield was being watched continuously by police.

In his closing argument, Feldman lashed out at Dusek for allegedly trying to bias the jurors against Westerfield by showing them pornographic pictures of children and then claiming that the pictures prove that Westerfield harbored sexual fantasies about young girls.

Several jurors began to weep Tuesday when Dusek showed them the pictures, just as they had done when the pictures were presented as evidence by a police computer expert.

Feldman said the question is not whether the pictures are repugnant but whether--without any corroborating evidence--they prove that Westerfield had sexual fantasies that led him to sneak into his neighbors’ home and kidnap their child.

He noted that the vast bulk of the pornographic pictures on Westerfield’s computers were of adults, not children.

“Gross? OK. Disgusting? OK. Inappropriate? OK. Enough to shock you? OK. Enough to bias you against Mr. Westerfield? Definitely,” Feldman said. “That was [the prosecutors’] plan. What they did was take two or three images out of thousands and say this is a true and accurate portrayal of Mr. Westerfield.”

But Dusek, in his rebuttal, said it was Feldman who was exploiting sex as an issue in an untruthful way.

He noted that in his opening statement weeks ago, Feldman mentioned that Danielle’s parents, Brenda and Damon, had used the family garage to drink, smoke marijuana and engage in “risque sexual behavior” and that their lifestyle contributed to Danielle’s disappearance and murder because it created an atmosphere in which strangers could come and go.

“He was feeding off whatever media you may have seen before this trial began,” Dusek said.

Feldman, apologizing for his loud voice and emotional style, told jurors not to be afraid to tell Superior Court Judge William Mudd if they become deadlocked at 11 to 1 or 10 to 2. The sanctity of the jury system is in your hands, Feldman said.

“You’re all that separates us from the Taliban,” he said.

Dusek called Feldman’s strategy “desperation, exaggeration, ‘let me hook one juror--just one.’ ”

Along with murder and kidnapping charges, Westerfield also is charged with misdemeanor possession of child pornography. Feldman had sought to have that charge separated from the murder and kidnapping case.

Westerfield, 50, a self-employed design engineer, did not testify during the trial and sat impassively during the closing arguments, occasionally taking notes. If he is convicted, the jury will then be required to decide whether he should be executed or sentenced to life in prison without parole.

Danielle disappeared Feb. 2 from her parents’ home. Her nude, decomposing body was found Feb. 27 in a rural area.

Westerfield had been arrested Feb. 22 based on the discovery of Danielle’s blood, hair and fingerprints in his recreational vehicle.