Westerfield Trial’s Last Round

If defending David Westerfield was difficult, his defense attorneys now face an equally daunting challenge: persuading the jury that convicted him of kidnapping and murdering 7-year-old Danielle van Dam that he does not deserve to die.

In the last eight years, San Diego prosecutors have asked juries to sentence four child-killers to be executed. In all four cases, the juries voted for death, including for a mother who killed her four children and a couple who scalded their niece to death.

Lawyers in the Westerfield case have been ordered by the judge not to make any public comment about the penalty phase set to begin Wednesday.

Defense attorneys, former prosecutors and law professors watching from afar, however, predict that Westerfield attorney Steven Feldman will use a two-pronged strategy of calling character witnesses and telling jurors that if they have any “lingering” doubt about Westerfield’s guilt they should vote in favor of life imprisonment instead of death.

But Feldman will be up against testimony that former prosecutor Colin Murray predicts will be “gut-wrenching.”

Prosecutors are expected to call to the stand grieving parents and other family members and friends to explain how special and loving Danielle was and how tormented they are by her murder.

“The prosecutor will need to introduce the jury to Danielle, the kind of girl she was, what her hobbies were, what she would be doing today if she hadn’t been murdered,” Murray said.

And lead prosecutor Deputy Dist. Atty. Jeff Dusek will also be able to ask the jury to imagine the pain and terror that Danielle must have felt in her final hours as Westerfield kidnapped her from her bed, took her to his house and waited several hours before killing her.

Facts about Westerfield’s background--possibly including abusive treatment of a former live-in girlfriend--will also be introduced as the jury is asked to weigh mitigating factors against aggravating factors in deciding between death and life imprisonment.

The most powerful factor leaning toward a recommendation for death may be Danielle herself: a young, white, upper-middle-class child.

“She fits the profile of victims where the defendant is most likely to be sentenced to death,” said Justin Brooks, executive director of the California Innocence Project at the California Western School of Law in San Diego.

Then again, Westerfield fits the profile of killer least likely to be sentenced to death: white and upper-middle class.

In the 19 death-penalty cases in the eight-year tenure of San Diego County Dist. Atty. Paul Pfingst, juries have chosen death in 10, life imprisonment without parole in two, and deadlocked in three. Four cases, including Westerfield’s, are pending.

All 12 of the Westerfield jurors, while being questioned before the trial, said they would be willing to impose the death penalty. Some cried during the trial while being shown child pornography seized from Westerfield’s computer.

Surveys have shown that even people who oppose the death penalty say that a case involving someone who kills a child might make them change their mind.

“It’s going to be incredibly hard for Feldman to get up there and say, ‘OK, you didn’t believe me before that he wasn’t guilty, but now believe me about my client not deserving to die,’ ” Brooks said.

UC Santa Cruz professor Craig Haney, a psychologist and lawyer, has written that during a penalty phase, a defense lawyer needs to strip away the “demonic qualities” that the prosecution and media have attributed to the defendant and show him as a more complex individual, one deserving of pity or, at least, mercy.

Defense attorney Bradley Patton said Feldman is likely to argue that the death penalty should be reserved for the “worst of the worst,” criminals with long records and no redeeming value, and that Westerfield--who appears to have only a drunk-driving arrest on his record--”clearly does not fit” that description.

Under California law, once a jury in a murder case has found that a “special circumstance” exists--in this case because the killing followed the kidnapping of Danielle--the trial shifts into the penalty phase.

Many of the rules are the same as the original trial except that both sides are given more latitude to present evidence, and the defense, not the prosecution, is allowed the final argument to the jury.

If the jury decides on life imprisonment without parole or if the panel is deadlocked, the defendant receives life imprisonment. If the jury decides on death, the judge can reject that penalty in favor of prison, although it rarely happens.

In San Diego County, that last happened in 1996, when a judge rejected the jury’s recommendation of death for a 19-year-old convicted of the torture and murder of a transient. The judge said he felt the defendant was no more culpable than two defendants for whom the jury had recommended prison.

The Westerfield penalty phase could be seen as Round 2 of the courtroom battle between Feldman, the bearded, hyperkinetic liberal from UC Berkeley, and Dusek, the clenched-teeth, former minor league baseball pitcher from Brigham Young University.

Dusek has sent defendants to death row; Feldman has won some cases, lost others.

Feldman is likely to call Westerfield’s two ex-wives, his ex-in-laws, his two grown children and people helped by the injury-rehabilitation devices Westerfield designed and patented. They could testify about his kindness and his law-abiding temperament.

The defense is also expected to ask Superior Court Judge William Mudd to give the “lingering doubt” instruction to the jury.

Gary Gibson, a veteran public defender, said the jury’s lengthy deliberation--nearly 40 hours over nine days--suggests that one or more members needed to be persuaded before voting for guilt. Those jurors, he said, might be reluctant to vote for death on evidence that they believe has left at least a glimmer of doubt.

During the trial, Feldman presented two entomologists who suggested that Danielle’s body was dumped on the rural road sometime after Westerfield began being watched continuously by police and therefore he could not be the killer. The prosecution offered two experts to dispute that theory.

Although the rules of evidence are more flexible in penalty phases, there are limits.

Opposing attorneys are set to meet today with Mudd in a closed session to discuss what evidence will be allowed.