Jurors in the penalty phase of the David Westerfield trial will begin their third day of deliberations today by hearing the voice of someone who did not testify: Westerfield himself.
Before adjourning Friday for the weekend, jurors sent a note to Superior Court Judge William Mudd asking to hear the entire 40-minute taped interview between Westerfield and a police interrogation specialist on Feb. 5, three days after 7-year-old Danielle van Dam disappeared.
While the guilt phase of the trial dealt largely with matters of science--with testimony about DNA, autopsies, fingerprints and fiber analysis--the penalty phase may hinge on what jurors think about Westerfield’s character.
One of the imponderables is what impact Westerfield’s polite and unthreatening demeanor during the trial will have on jurors.
Slump-shouldered and given to mild trembling, Westerfield sat impassively during most of the trial, remaining attentive but showing little emotion.
He wept when his sister, son and daughter told jurors of their love for him.
“I’m not sure how much good it will do him, but the best thing Westerfield has going for him is that he looks so pitiful, that he doesn’t ‘look’ like a killer,” said former prosecutor Colin Murray.
Bill Nimmo, a longtime defense attorney, said jurors cannot help but be influenced by having watched Westerfield at the defense table for weeks.
“Only two groups of people are ever asked to make a conscious decision to kill people: soldiers in war and jurors in a death-penalty case,” Nimmo said.
“The difference,” he said, “is that jurors get to know the person they’re asked to kill.”
Prosecutors have sought to contradict Westerfield’s sympathy-invoking image by introducing evidence that he lied about Danielle’s disappearance and that he may have made an illicit physical advance 12 years earlier on a young niece.
The jury, which convicted Westerfield of kidnapping and killing Danielle, must now recommend whether he should be executed or sent to prison without the possibility of parole.
Along with the police interview, jurors also want to review the tape of a brief interview Westerfield gave to TV reporters after he returned home from a two-day meandering trip to the beach and desert while other neighbors were frantically searching for Danielle.
Westerfield laughed nervously and asked if his thinning hair would look good on television, but never expressed any concern over the disappearance of a neighbor child--a fact that Deputy Dist. Atty. Jeff Dusek stressed as he asked jurors to recommend that the 50-year-old design engineer be given “what he deserves, not what he wants.”
Dusek said the TV interview shows Westerfield’s innate cruelty and arrogance, and contradicts the testimony of numerous defense witnesses who said Westerfield was a generous and helpful friend and co-worker.
Dusek portrayed Westerfield as a cunning killer who harbored sexual desires for young children and who tried to destroy evidence by cleaning his recreational vehicle and home, and then lied repeatedly to police.
During the police interview, Westerfield said he did not remember Danielle van Dam, whose family lived two doors away from his home in the upscale Sabre Springs subdivision.
“If you brought her in right now, I would not be able to tell her from 10 other kids,” Westerfield told police interrogation specialist Paul Redden.
Jurors on Thursday asked to examine testimony during the penalty phase from a former niece who said that Westerfield had come into her bedroom when she was seven years old, stuck his finger in her mouth, and massaged her teeth. She testified that he stopped only after she bit his finger.