Defense lawyers may be able to spare David Westerfield's life if they can evoke just enough sympathy or lingering doubt in jurors who convicted him of kidnapping and killing his 7-year-old neighbor, say attorneys who have followed the case.
Westerfield, who lived two doors from Danielle van Dam, was convicted on circumstantial evidence of kidnapping, murder and possession of child pornography. The jury reconvenes Aug. 28 to decide between execution and life in prison after testimony in the trial's penalty phase.
"I don't believe this is a slam dunk for the prosecution," said William F. Nimmo, a former prosecutor who is now a defense attorney in San Diego. "This is 12 people who are going to have to vote to kill somebody."
Danielle was last seen when her father put her to bed on Feb. 1. Her nude body was found along a rural road nearly a month later.
California juries have shown a willingness to recommend capital punishment for child killers. Perhaps the most notorious example is Richard Allen Davis, on death row for the 1993 murder of 12-year-old Polly Klaas in the San Francisco Bay area.
"In the minds of some jurors, this may be what the death penalty is for," said Marc X. Carlos, a defense attorney who has tried many capital cases.
But the differences are stark between Davis, a repeat felon before the 1993 attack, and Westerfield, an engineer with his own business and a drunk driving conviction.
"This man has no prior history of violence. He's clearly not the worst of the worst that we've seen out there," said Toni Blake, a lawyer and jury consultant.
The case against Westerfield was based on circumstantial physical evidence, including a spot of Danielle's blood on his jacket and the discovery of her hair, fingerprints and blood in his motor home.
Investigators never found anything to prove he was in the van Dam house. Because of the decomposition of the body, police weren't able to pinpoint the cause or time of the girl's death.
A gag order prohibits prosecutors and defense lawyers from discussing the case. But legal analysts speculate Westerfield's lawyers may emphasize any doubt about his guilt.
Under California law, a jury must be unanimous to recommend the death sentence. The judge can either reject or accept the recommendation at a later sentencing hearing.
The jury deliberated nearly 40 hours over 10 days before returning Aug. 21 with its guilty verdicts against Westerfield. That length of time suggests some on the panel might have had misgivings, said Justin Brooks, director of the California Innocence Project at California Western School of Law in San Diego.
"Lingering doubts can play a huge role," Brooks said. "If you sentence someone to life in prison and there's been a mistake, you can do something about it."
At the same time, the defense risks alienating jurors by stressing the possibility of innocence.
"You have to respect their verdict. You can't just tell them they are wrong," he said