Criminal
Aug. 9, 2002
Defender Says Westerfield Couldn't Have Taken Girl
SAN DIEGO - A defense attorney argued Wednesday that David A. Westerfield couldn't have sneaked into the bedroom of Danielle van Dam, the 7-year-old he is charged with kidnapping and murdering.
Westerfield's attorney, Steven E. Feldman, told the jury that police found no fingerprints, hairs or fibers linked to Westerfield in the van Dam house.
The entry theorized by prosecutors, Feldman argued, could have been made only by someone familiar with the layout of the darkened home.
Feldman, imitating a young girl's high-pitched voice and saying "help me, help me," insisted that, if Danielle had screamed, she would have awakened her parents.
"The only thing that makes any sense is that the little girl knew who was in there," he said.
Feldman was responding to a theory advanced Tuesday by Deputy District Attorney Jeff B. Dusek in his closing argument. Dusek said Westerfield must have sneaked in after Danielle's father went to sleep but before the girl's mother returned with friends from a nearby bar for a pizza snack.
Dusek theorized that Westerfield hid in Danielle's room until the friends left and the parents were asleep. Then he carried Danielle to his house two doors away, Dusek said.
Feldman ended his closing argument Wednesday, and Dusek began his rebuttal.
The verbal duel between the attorneys began Tuesday after two months of testimony. The trial itself started four months after Danielle's parents discovered Feb. 2 that she had vanished from a second-floor bedroom of their Sabre Springs home in suburban San Diego. Volunteer searchers found her body Feb. 27 on a dirt road 18 miles from her home.
Westerfield had already been charged with her death. He faces the death penalty if convicted.
Feldman emphasized that the prosecution case was built on circumstantial evidence. If the jurors found more than one reasonable explanation for a set of facts, the defense attorney argued, they must decide in favor of Westerfield.
Attempting to explain how carpet fibers from the young girl's room could have ended up in Westerfield's home, Feldman said Danielle, her mother and her brother were at his client's home selling Girl Scout cookies a few days before Danielle vanished.
Westerfield told police that the children had gone upstairs. During her testimony, Brenda van Dam, the mother, denied that the children went upstairs.
Westerfield did not testify.
Witnesses for the defense also said Brenda van Dam and Westerfield danced together the night of Feb. 1 at Dad's Cafe and Steak House in Poway. Hair and fibers could have been transferred then to Westerfield and from him to his house, Feldman argued.
The prosecution's emphasis on pornography found in Westerfield's home was not so much an effort to show motive as a move to "inflame" the jury against Westerfield, Feldman told jurors.
"The argument is one of prejudice, not logic," he said.
Feldman denied that Westerfield's pornography videos showed a motive for kidnapping and slaying.
"Because we possess these things, we're going out and committing crimes?" Feldman asked.
Though prosecutors "speculated" that Danielle had been suffocated, Feldman reminded jurors that the medical examiner had been unable to determine the cause of Danielle's death.
"We don't want you to speculate," Feldman said.
He added that the examiner found no evidence of strangulation or blunt-force injury.
The defense attorney also reminded jurors that the two sides had presented conflicting scientific evidence about the time of Danielle van Dam's death.
Forensic entomologists who testified for the defense said the girl's body first was exposed to insect activity about two weeks after Danielle vanished, Feldman said. Westerfield had been under police surveillance since Feb. 5 and couldn't have dumped the body then, he said.
"This is absolute certainty, folks," he said.
Claude Walbert
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