Sex Focus of Speculation, Not Evidence, in Van Dam Trial

The murder trial of David Westerfield has been replete with scientific testimony about topics ranging from computers to DNA to the lifecycle of bugs, but there has been a surprising dearth of testimony about an issue at the heart of the case: sex.

From Day 1, the prosecution and defense have sought to use accusations about sex to persuade jurors.

Deputy Dist. Atty. Jeff Dusek, in his opening statement, said the fact that Westerfield kept child pornography on his computer shows that he harbors sexual obsessions about young girls. Westerfield is accused of the kidnapping and murder of 7-year-old Danielle van Dam.

Defense attorney Steven Feldman responded by suggesting that police bungled the case by not investigating people who may have been drawn to Danielle’s home to partake in her parents’ sexually adventurous lifestyle.

Feldman later quizzed Damon and Brenda van Dam about their sex lives and called witnesses to show that Brenda propositioned people at a local bar to come back to the couple’s home in tidy, upscale Sabre Springs.

But neither side has called any scientists or researchers to support their contrasting assertions: that possession of child pornography indicates a dangerous fetish, or that sexual “swingers” are potential murder suspects.

“The reason we haven’t seen evidence like that is that none exists,” said Gary Gibson, adjunct professor of law at California Western School of Law in San Diego and a veteran criminal defense attorney.

UCLA psychology professor Neil M. Malamuth, an expert on the relationship between pornography and violence, said that possession of pornography, taken as an isolated fact about someone, cannot be said to be proof of a tendency toward fetishes or antisocial behavior.

Dr. Ansar Haroun, a clinical professor at UC San Diego and supervising psychiatrist for San Diego Superior Court, agreed with Malamuth. Without the presence of risk factors such as a history of hostility toward women or childhood traumas, pornography is not a sign that a person is capable of sexual violence, Haroun said.

“Looking at pornographic pictures does not give you fetishes, any more than looking at pictures of goats gives you a fetish about goats,” said Haroun, who is not involved in the Westerfield case.

As for Feldman’s assertion about “swingers” being murder suspects, sexuality researchers say that an appetite for recreational adult sex does not indicate a potential for violence.

A leading defense attorney in San Diego said it is unfortunate that Dusek and Feldman have needlessly made sex an issue in an already gut-wrenching trial.

“Both sides would say, ‘No, no, no, we’re just arguing the logic of our position,’ ” Eugene Iredale said. “But both are using sex to play on the emotions of jurors. The prosecution is saying, ‘He’s guilty because only pedophiles look at child pornography,’ and the defense says, ‘The parents are so kinky their friends must have done it.’ That’s the undertone of the trial.”

Defense attorney Bob Grimes said sex is a legitimate issue in the trial, but added that both attorneys are running the risk of diverting attention away from more important issues, such as the DNA evidence and the dispute about when Danielle was killed.

Samples of the dead girl’s hair, blood and fingerprints, found in Westerfield’s home and recreational vehicle, may establish a link between Westerfield and the crime. Yet one expert witness’ estimate of the time of Danielle’s death seems to undercut the prosecution by suggesting that Danielle was killed after Westerfield was being watched 24 hours a day by police. The expert, an entomologist, based his theory of the time of death on the number and age of bugs found on the body.

Grimes said that such complex testimony could be overshadowed by the emphasis on sex. “Sex is dangerous at trial,” he said. “It can distract the jury by showing them things that are more interesting but less [relevant].”

And Grimes said that if Westerfield is convicted, one possible basis for appeal will be that the pornography, especially the child pornography, unfairly biased the jury against Westerfield and that Superior Court Judge William Mudd should never have allowed the jury to see it.

The law says material that is unrelated to the criminal charges should be excluded from the jury if it would have a prejudicial affect on the defendant’s right to a fair trial. But the determination of what is prejudicial is a subjective one. The judge has permitted testimony that Westerfield drank to excess and became sullen and hostile when he was drinking, but he would not allow jurors to be told that Westerfield, 50, a design engineer, was convicted of drunk driving in 1996.

Westerfield told police he was “pretty drunk” the night before Danielle’s disappearance.

Before the trial, defense attorney Feldman argued that the misdemeanor charge of possession of child pornography should be separated from the murder and kidnapping charges because it would unfairly prejudice the jury against Westerfield.

Mudd rejected Feldman’s request, but ruled that only a fraction of the pornographic images kept in computers in Westerfield’s home would be shown to the jury.

But that small number of images had an apparently powerful effect. When jurors were shown a video that seemed to simulate a young girl being raped, two jurors began to weep and others averted their eyes.

After failing to block the introduction of the material, Feldman countered with testimony from a computer expert who suggested that the pornography had been downloaded not by Westerfield but by his teenage son.

In using allegations about sexual conduct that are unsupported by scientific evidence, Gibson said, both sides are benefiting from the so-called Victims’ Bill of Rights measure that in 1982 amended the state Constitution. It permitted the introduction of any trial evidence that has “any tendency in reason to prove or disprove any disputed fact.”

Even if an appellate court determines that Mudd was wrong in permitting the pornography as evidence, it could rule that it was a “harmless error” that did not influence the verdict, Gibson said.

When the trial resumes July 22, Feldman will have the opportunity to introduce expert testimony that questions the relevance of the child pornography.

But, as Gibson has pointed out, that would give the prosecution a second chance to show jurors the shocking images downloaded onto Westerfield’s computer.