Judge’s Instruction Benefits Westerfield

The judge in the David Westerfield trial decided Tuesday to give an instruction that would provide jurors greater latitude to spare the life of the man convicted of killing 7-year-old Danielle van Dam.

Prosecutors and defense attorneys argued about an instruction commonly given in death penalty cases. Superior Court Judge William Mudd sided with the defense.

The clash between prosecutors and defense attorneys came as jurors were given the afternoon off from hearing testimony in the penalty portion of Westerfield’s trial for Van Dam’s abduction and slaying.

At issue is a jury instruction that says that jurors should weigh mitigating factors--in this case, the 50-year-old Westerfield’s lack of a criminal record and his history of being a good employee and loyal friend--against the aggravating ones, such as the cruelty of killing a child and the emotional devastation suffered by her parents and others.

As written, the instruction says that if jurors find the aggravating factors “so substantial,” then such a finding “warrants” the death penalty. Prosecutors routinely ask judges to modify that instruction to tell jurors that they “shall” impose death if the aggravating factors greatly outweigh the mitigating ones.

Defense attorney Rebecca P. Jones told Mudd that, as written, the instruction will allow the jurors to vote for life in imprisonment “for any reason at all,” including mercy. That brought a protest from Deputy Dist. Atty. Jeff Dusek.

“That’s not the law and that’s not fair,” Dusek said.

In two recent high-profile murder cases in San Diego County, judges have granted prosecutors motions to change “warrants” to “shall”--and in both cases juries have voted unanimously for death. One case involved the scalding murder of a young girl by her aunt and uncle.

Under the law, a jury in a death penalty case is asked to recommend either death or life in prison without parole. If the jury votes for death, the judge can reduce that sentence to life in prison. If the jury deadlocks, the prosecution can seek a retrial on the penalty phase.

During jury selection, all the jurors said they would be capable of imposing the death penalty in a murder case. But they also said they would not automatically vote for death.

Also Tuesday, several friends and relatives testified in favor of Westerfield, telling jurors about his kindness and helpfulness.