Defense attorneys for David Westerfield are attempting to keep alleged child pornography seized at his home from being introduced as evidence in his upcoming trial on charges of kidnapping and killing 7-year-old Danielle van Dam, motions unsealed Monday indicate.
The pornography is irrelevant to the kidnapping and murder charges and liable to unfairly turn the jury against Westerfield because it portrays children in “offensive” sexual activity, attorneys Robert E. Boyce and Steven Feldman argued.
But Deputy Dist. Atty. Jeff Dusek, in asking Superior Court Judge William Mudd to reject the defense motion, said the child pornography “is strong evidence of defendant’s motive to kidnap, sexually abuse and ultimately murder” Danielle.
A pretrial hearing is set to begin today on a series of motions by both sides. The trial has been scheduled for May 17.
Boyce and Feldman said the pornography is irrelevant because there is no evidence yet presented that Westerfield, 50, a self-employed design engineer, ever looked at the images found on computer discs in his garage. Also, they noted that Westerfield is not accused of sexually molesting Danielle, whose family lived two doors away from Westerfield in the upscale Sabre Springs neighborhood.
At an earlier hearing, the county medical examiner testified that Danielle’s body, found Feb. 28, 21 days after her parents reported her missing, was too badly decomposed to allow him to determine how she had been killed or whether she had been molested.
At that hearing, prosecutors presented evidence that Danielle’s blood was found on Westerfield’s jacket and that her fingerprints were found in his recreational vehicle.
Boyce and Feldman are asking Mudd to keep the pornography from being shown to the jury and also to order a separate trial on the misdemeanor charge facing Westerfield of possession of child pornography.
Prosecutors have alleged that pictures, cartoons and digital images on discs found in Westerfield’s garage show underage females in sexual acts, in bondage and, in one case, crying for help.
The defense attorneys conceded that the “cartoons and the pornography depict extremely offensive sexual and nonsexual subjects” and thus should be kept from the jury.
“The subject of [Westerfield’s] lifestyle is irrelevant on the issue of guilt” on murder and kidnapping charges, Boyce and Feldman wrote.
The defense also wants Mudd to exclude the tape-recording of the tearful, panicky voice of Brenda van Dam calling 911 to report her daughter missing.
Prosecutors want Mudd to exclude evidence about drug use by Brenda van Dam and her husband, Damon.