After nine days of deliberations, a jury Wednesday convicted David Westerfield of the kidnapping and murder of 7-year-old Danielle van Dam in a case that gained nationwide notoriety when the defense blamed the girl’s murder on the “sex, drugs and rock ‘n’ roll” lifestyle of her grieving parents.
Superior Court Judge William Mudd set next Wednesday to begin the penalty phase of the trial. The jury of six men and six women will be asked to recommend to the judge either the death penalty or life in prison without parole for the 50-year-old, self-employed design engineer, who lived two doors from the Van Dams and had once bought Girl Scout cookies from Danielle.
Under state law, kidnapping is a special circumstance that makes a murderer eligible for execution. But the judge could reject a jury recommendation of death and instead impose a life sentence.
“Oh, my God!” Brenda van Dam, Danielle’s mother, said softly as the first guilty verdict was read aloud by a court clerk. She and her husband, Damon, wept and embraced as jurors were polled on the charges against their former neighbor.
Westerfield trembled slightly and stared directly at jurors. The jurors--two of whom were in tears--refused to look at Westerfield, his attorneys or the prosecutors.
Westerfield’s sister, brother-in-law and former brother-in-law left the court badly shaken.
“I am in shock. I am just in shock,” said David Neal, Westerfield’s ex-brother-in-law. “He thought he was going to get off.”
Until the jury decides what punishment to recommend, Mudd continued a gag order keeping jurors, lawyers and witnesses from discussing the case.
During the penalty phase, prosecutors are expected to present testimony from Danielle’s parents and family friends to explain the devastating impact her murder has had on them, their family and their suburban neighborhood. They also can present evidence that was not admissible during the first phase of the trial, which could show that Westerfield had a propensity to violence.
Defense attorney Steven Feldman told Mudd he has 10 out-of-state witnesses who are expected to beg the jury for mercy for Westerfield, who had no prior criminal history except for a drunk-driving conviction in 1995. Westerfield, who did not testify during the trial, could testify during the penalty phase.
The Feb. 2 kidnapping of Danielle, a light-haired girl with a quick laugh and a gap between her front teeth, proved to be the first in a series of crimes against children that has gripped the nation this year.
Two weeks ago, President Bush mentioned the Van Dam case and that of Samantha Runnion, 7, who was kidnapped from outside her Orange County home and murdered last month, in announcing a Sept. 24 conference to find ways to stem what he called “a wave of horrible violence” against children.
In San Diego, dozens of downtown workers assembled outside the courthouse and cheered when the verdict was announced. The San Diego Union-Tribune rushed an extra onto newsstands with a front-page headline reading: “GUILTY.”
Although San Diego has had other grisly murder cases, including cases involving children, the public was riveted on the Van Dam trial, which was broadcast on local television and the national Court TV channel.
“This case is different,” said Justin Brooks, a professor at California Western School of Law in San Diego. “It had sex, drugs, rock ‘n’ roll, mummification, entomology, everything that makes for a great media story.”
San Diego Police Chief David Bejarano told reporters that “we’re satisfied and relieved with the verdict.”
“This is a step for the city, the Police Department and the Van Dam family toward closure as we heal,” he said. “But we’ll always remember Danielle.”
While not required to prove a motive, prosecutors asserted that Westerfield kidnapped and murdered Danielle because he harbored sexual fantasies about young girls. The jury also convicted him of misdemeanor possession of child pornography for material found on his computers.
During the trial, prosecutors presented evidence that Danielle’s blood, fingerprints and hair were found in Westerfield’s home and recreational vehicle.
Feldman countered that there was no evidence that Westerfield was ever in the Van Dam home, two doors away from his home in the upscale Sabre Springs neighborhood. He also asserted that the Van Dams’ lifestyle left Danielle vulnerable to strangers having access to the family home.
Brenda van Dam, 39, who sold books to school libraries, and Damon, 37, a software engineer, testified that they had swapped sex partners with other couples and occasionally smoked marijuana--admissions that have led to a daily drumbeat of critical comment by callers to local radio talk-show programs.
Feldman, who described the couple’s lifestyle as “sex, drugs and rock ‘n’ roll,” told jurors in his closing arguments that “we don’t think they realized the dangers of the lifestyle they engaged in.”
“If you engage in a drug and risque sexual lifestyle, your children are endangered,” said Feldman, who, in addition to being one of the city’s top defense attorneys, also belongs to groups that support the legalization of marijuana.
On the night Danielle disappeared, Brenda van Dam and two female friends were at Dad’s Cafe & Steakhouse in nearby Poway for a “girls’ night out” of dancing, drinking, shooting pool and smoking marijuana. Westerfield, twice divorced and the father of two grown children, was also at Dad’s. He bought drinks for Van Dam and her friends, but left before them.
Prosecutors alleged that Westerfield, angry at not being able to strike up a relationship with Brenda van Dam’s friends, broke into the Van Dam home through a side door to the garage that Brenda had left open earlier that evening when she and her friends were smoking marijuana.
Damon van Dam, who also had smoked marijuana that night, had tucked Danielle into bed around 10 p.m. and gone to bed himself.
Arriving home with her friends after Dad’s closed around 2 a.m., Brenda van Dam did not check on Danielle. Prosecutors said Westerfield may have been hiding in Danielle’s bedroom when Brenda returned home and that he waited for her friends to leave and for her to go to bed before carrying Danielle out of the house.
Although they never pinpointed when they believed Westerfield killed the girl, prosecutors indicated they thought she was still alive when Westerfield took her from the home. The next morning, he took his recreational vehicle on a circuitous trip to the beach and desert, while other neighbors frantically searched for Danielle.
The Van Dams testified they initially had not told police about their drug use or sexual activities because they did not feel it was relevant to Danielle’s disappearance.
But Feldman asserted that by “lying” to police, the couple had kept police from looking for suspects among people who might have come to the Van Dam home.
Victims’ advocate Marc Klaas, who has befriended the Van Dams, called the defense strategy “slimy” and criticized radio talk-show hosts as “bottom-feeding disc jockeys.”
“They slammed these parents from Day One,” said Klaas, whose daughter, Polly, was kidnapped and killed by an intruder in 1993. “It just didn’t seem to stop.”
The case against Westerfield relied heavily on Danielle’s hair and fingerprints being found in his home and recreational vehicle and fibers on the girl’s body, found nude and decomposing on Feb. 27 along a rural road near a golf course 40 miles from the Van Dam home.
Feldman presented two insect experts who testified that, based on the bugs found on Danielle’s body, she must have been killed after Westerfield was being watched by police. The prosecution presented two insect experts to refute that theory.
Jurors heard a tape recording of an interview that police conducted with Westerfield on Feb. 5. In that interview, Westerfield said he was “pretty drunk” the night Danielle disappeared and did not remember how he got home after being at Dad’s.
Deputy Dist. Atty. Jeff Dusek told jurors they needed to remember only two facts: that Danielle disappeared the morning of Feb. 2, and on the morning of Feb. 4, Westerfield went to a dry cleaner with several items, including a jacket of his that contained traces of Danielle’s blood.
“The blood was a smoking gun,” said veteran defense attorney Gary Gibson. “The defense has no answer for that.”