Death Penalty for Westerfield Still Uncertain

NEW YORK – After 10 days of deliberations, a California jury on Wednesday unanimously found David Westerfield guilty of kidnapping and murdering 7-year-old Danielle Van Dam. Experts, however, are split on whether the same panel will send him to death row.

The jury returns next Wednesday to begin debating the appropriate sentence for Westerfield, who also was found guilty of possessing child pornography. Prosecutors are seeking the death penalty, while the defense will argue for life without parole.

"The facts are so horrible, we almost seem to be witnessing an epidemic of [killings of] young girls by sexual perverts in this country," said Fox News senior judicial analyst Andrew Napolitano. "If this isn't a death-penalty appropriate case, it's hard to think of one that is."

Other experts counter that despite Westerfield's conviction on all counts, a death sentence is far from certain, particularly as several jurors seemed to be unsure of their decision.

"This is a whole different ballgame. You're now selling death to a jury," former San Diego prosecutor Mike Still said outside the courthouse.

Renowned defense lawyer Geoffrey Feiger said that based on the tone of the voices of some of the jurors, "there was a holdout of at least one and perhaps two, during the last nine days, that weren't convinced beyond a reasonable doubt of his guilt."

Westerfield's defense are likely to target those seemingly unconvinced jurors. As with a guilty or not-guilty verdict, a unanimous decision is necessary to sentence Westerfield to death.

"Those jurors may sway the rest," Feiger said.

Larry Kobilinksy, a forensic-science professor at John Jay College, said the result could be a hung jury.

"Going that extra step is so finite," Kobilinksy said.

Westerfield's legal team is expected to paint him as a family man with no prior criminal record as they fight for life without parole.

"This guy just doesn't look the part" of a child killer, Feiger said.

The defense still has ammunition in storage. Still commented that Westerfield's son, friends and neighbors could still be brought in to testify.

Experts said defense lawyers should argue that life in prison would be more punishment than a death sentence, particularly as most condemned criminals spend 20 years on Death Row.

Westerfield's legal team may also focus next week's arguments on the lifestyle of Danielle's parents, which included drug use and spouse-swapping.

But Danielle's family is also expected to take the stand, which undoubtedly will stir emotions in the jury.

"It's going to be very interesting to see how both sides handle this," Still said.

In case Westerfield does get the death penalty, the case could be appealed all the way up to the United States Supreme Court.