What Lies Ahead for David Westerfield?

This is a partial transcript from The O'Reilly Factor, August 21, 2002. Click here to order the complete transcript.

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JOHN KASICH, GUEST HOST: On Wednesday, a jury found David Westerfield guilty of kidnapping and killing the little girl, and they will soon decide what his punishment will be.

Joining us from outside the courthouse in San Diego is Fox News legal analyst Dan Goldman. In Los Angeles jury consultant Jo-Ellan Dimitrius and in New York, Marc Klaas, child advocate and CEO of the KlaasKids Foundation. Marc has been in close contact with Danielle's parents, Damon and Brenda van Dam. He also happens to be a hero of mine.

Jo-Ellan, when they polled the jury and you heard the voices, Yes, yes, yes, and they got to, I think, the ninth juror, and you could barely hear that juror. Is that a tip off in terms of who on that jury had such a difficult time reaching a conclusion?

JO-ELLAN DIMITRIUS, JURY CONSULTANT: Oh, not necessarily. I mean, they recognize, all of those jurors, that this is the first time at which they were going to be under extreme scrutiny to watch what the inflection of their tone was, how they reacted, did they look at Westerfield, did they not look at Westerfield?

So, I don't think we can take that as a particular clue as to that may have been the one person that may have been reticent. What I know from yesterday is that two of the older female jurors were actually at lunch together, and they were in a very, very heated discussion. So, you know, perhaps it was those two women who were the initial holdouts.

I mean, obviously we'll never know, at least until after the penalty phase is over. But I don't think that's necessarily an indication that that may have been a holdout.

KASICH: Marc, I could imagine the emotion that the family must go through, the sense that there is going to be justice. At the same time, the cascading effect and the blackness that comes with the loss of their daughter because no decision is going to bring her back. Could you tell us how the family is doing?

MARC KLAAS, CHILD ADVOCATE: Well, the last time I spoke to Brenda was last Thursday and at that time, she was wondering if that jury had sat through the same trial that she had sat through, because she, like Bill and like myself and so many other people felt that it was a total slam-dunk.

But, you know, the jury has to be very deliberate, particularly in the post-O.J. era. There have been so many crimes against children lately and they knew they were being scrutinized, maybe are the most scrutinized jury since the O.J. jury, and they have to live with themselves after this as well.

So, you know, they were very, very careful in what they did. You know, John, when we had our trial, it took four days for the jury to come back and they had a confession, and in fact the killer had led them to her body. So I think these people take themselves extremely seriously as well they should and, you know what? They are deliberating about the life of an individual. They are giving much more consideration to David Westerfield than he ever gave to his victim, and I think that speaks to the difference between good and evil by itself.

KASICH: Stan, what is the word there? I understand when the verdict was announced, there was cheering outside the courtroom. What is the speculation in terms of why it took so long?

STAN GOLDMAN, FOX NEWS LEGAL ANALYST: Well, nobody really knows. But you're absolutely right. Right out here, directly behind me, there was a huge crowd that was built up and they all cheered when the guilty verdict came in. It could be anything. It could be a couple of jurors were in doubt. It could be simply that this jury just decided to meticulously go through the evidence and argue each single point.

You got to remember, although these jurors were out for almost 10 days, the reality is they just didn't deliberate that much each day. We had a total of about 36 hours of deliberation, we thought. I think that is a soft 36. I'm not entirely certain we included breaks in that. I think it was closer to 32 hours. Which means if you worked an eight-hour day, we're talking about four days of deliberations here.

It was just not as much time as I think people believed.

KASICH: Some people say the length of the trial was 60 days, and that the jury considerations really weren't out of line with the duration of the trial.

Joining our panel from San Diego are former prosecutor Mike Still and criminal defense attorney Kerry Steigerwalt.

Kerry and Mike, what do we expect will happen? Will the defense try to appeal this verdict today? Let's start with you, Kerry.

KERRY STEIGERWALT, CRIMINAL DEFENSE ATTORNEY: I can answer that. There will ultimately be an appeal. In California, once special circumstances are found, there is automatic triggering of appellate process. We have an another stage to go before that occurs, and that is the penalty phase. The question is, what's the appropriate penalty for Westerfield now? Is it to put him to death or merely, merely, life without possibility of parole in prison? That's what's to be decided in the next stage.

KASICH: Mike, what is your take? Is it likely there'll be an appeal? I heard earlier today that it was just very unlikely because of the deliberation for this decision to be overturned.

MIKE STILL, FORMER PROSECUTOR: well, we move on to the next stage now, which is the penalty phase. If the jury recommends the death penalty and Judge Mudd, who takes that recommendation, decides to impose death, or he can overrule the jury, basically, and impose life without parole.

But if there is a death verdict and Judge Mudd takes that recommendation and goes along with it and imposes the death penalty, then the case is automatically appealed up to the California Supreme Court, and they look at all phases of the trial at that point in time, guilt and penalty, the evidence that was admitted, what was kept out.

All the appellate issues come up before the California Supreme Court. Are there any appellate issues? It's hard to say at this point in time. I think both sides did a good job to give Mr. Westerfield a very fair trial, and now we move on to what is a whole new ballgame on the death penalty phase.

KASICH: Marc, throughout the trial, there was an effort, Marc Klaas, to attack the family, attack their lifestyle, the fact that they apparently had been swapped partners, that there was reports of marijuana use. Obviously that defense didn't work. How did you feel about that, how does the family view this?

KLAAS: Well, they're just trying to get through this thing. You know, they're much less considerate of that than they were of making sure that Westerfield was convicted for the crime that he committed against their daughter.

The prosecutors and the police discounted that information almost immediately. The only ones who carried it through were some low-riding disc jockeys and the defense attorneys. So hopefully this will never be brought up again.

But, you know, John, I'd like to say something quickly about this appeals process. In California, where the crime was committed against my daughter, he was convicted and sentenced to death in 1996, in September of 1996. And yet he has not yet been assigned a death penalty appeals lawyer.

So nobody is ever going to execute this guy Westerfield. All we're going to do is put another layer of protection between us and him.

KASICH: Marc, when he parents were killed by a drunk driver, I was invited to the courtroom to give my testimony. I was not convinced the judge ever heard me. Do you think their testimony will be critical in terms of what happens in this next phase?

KLAAS: Oh, absolutely. And the world will hear them. Everybody is paying attention to this trial. I just hope that they direct their testimony towards the judge and towards the jury because, quite frankly, Westerfield doesn't care what they have to say. He's shown them no consideration from the beginning.

So, as long as they maintain some dignity, address the judge, address the jury, everything should be just fine.

KASICH: Jo-Ellan, inside that jury, obviously a couple of people were just holding out. What are the dynamics? For the person that's never been on a jury or in a case like this, what goes on behind closed doors?

DIMITRIUS: Well, my goodness, there are a lot of things that go on. Obviously the foreperson's job is to keep peace with the entire group, to go through the process in a very regimented fashion. Certainly this person, I understand, had an accounting background, so it certainly makes sense that they went through this very methodically.

They may have taken straw votes. They may have talked about it, taken votes at different points...

KASICH: And they may have yelled at one another and said, Let's get on with it.

DIMITRIUS: Absolutely, absolutely.

KASICH: Let me, do you think this next phase, the penalty phase, will be easier for them to decide or more difficult than this decision we had today?

DIMITRIUS: This I think will be, I think, even more difficult in dealing with issues about life or death. It's one thing for anyone to say in theory they believe in the death penalty. It's another thing when they are called upon to actually basically look at a person across the room and say, You're going to die.

So, it is going to be a very difficult decision. And one of the things that I wanted to say that will be fascinating to see what happens in the penalty phase is usually on the defense side, what they do is they bring in the family members.

KASICH: Stan, give us the sequence now of what we can expect in this penalty phase.

GOLDMAN: Well, what will happen now is, starting next Wednesday, we'll start to hear witnesses, both for the prosecution and the defense. The prosecution will talk about the gruesome, horrible nature of this crime, what Bill O'Reilly referred to as the monster nature of a person who could do this thing. And once again, he's been proven guilty already, so he can't really claim he didn't do it.

The defense, on the other hand, will argue there's a man who's never had any criminal record whatsoever, except maybe a drunk driving a few years back. He's a man who perhaps should not be put in the category, they will argue, of those who should be executed.

They may also play on the fact that since the jurors were out for 10 days, perhaps the defense believes there was some consideration of the evidence, perhaps some people who have some doubts. If so, remember, all they have to do once again is to convince a juror or two that, in fact, there may be a reasonable doubt as to whether he should be executed. And, if so, this particular jury could hang.

KASICH: Stan, in light of the fact that there are aggravating circumstances, in other words, kidnapping, murder, and possession of child pornography, the mitigating circumstances would be beyond the fact that he didn't have a record. You know, he was a war hero or something like that. Do you expect that this jury could come back and not give him the death penalty?

GOLDMAN: Yeah, I think it's harder to give somebody the death penalty than to find somebody guilty. In the last five years or so in San Diego County here, 16 people have faced the death penalty. Nine of them have received death. The other seven, the jurors either returned life or were hung and were unable to reach a determination.

So, I think it is a more difficult proposition.

Let me say one quick thing, though. I think David Westerfield was given an extraordinarily fair trial in the courtroom. I think the only possible issue his lawyers might have on appeal is demonstrated by what we see today. You know, this is the kind of 84-point type usually reserved for the Second Coming.

That is the kind of publicity that the David Westerfield trial has been getting in San Diego.

KASICH: Got you, got you, Stan.

GOLDMAN: That may be an issue for appeal.

KASICH: Mike and Kerry, obviously the issue was so much of the evidence, which is why we think it took so long, the issue of the fibers found in Westerfield's home, the fibers, the DNA found in his RV. Mike, let me start with you. Obviously it was a complicated case. Do you think there was a smoking gun? Some people said it was the clot of blood from Danielle that was on his jacket that was the smoking gun.

Why don't you talk a little bit about the evidence?

STILL: Well, we first start off with her blood on his jacket, which he took to the dry cleaner's that is Monday morning. He showed up in his motor home, he was wearing boxer shorts, a real thin T-shirt, he looked very disheveled, wouldn't make eye contact with the lady at the dry cleaners, and turns in this jacket, a couple comforters and a couple pillow cases.

And lo and behold, the police, through good police work, get that jacket, because they found his dry cleaner ticket in his belongings when they searched his home, found that jacket that had her blood on it. So we start with that piece of evidence.

Then there's the drops of blood in the motor home that came back to Danielle, her blood. There's her fingerprints on cabinet above a bed in back of the motor home that came back to Danielle. There's a piece of hair in the sink of the motor home. Comes back, it's her hair.

KASICH: Kerry, when you look at hair from the dog inside of the van Dam house, the fibers from the carpet in side Danielle's room, the blood on Westerfield's jacket, the fingerprints in his house, the hair, the hair on Westerfield's bed, the fibers from the little necklace that was around her neck that matched the fibers in Westerfield's RV -- it seems as though that's pretty conclusive evidence.

What do you think the defense tried to do, and is that evidence just so compelling that there is no way around that?

STEIGERWALT: The evidence sure seemed compelling to me, and the prosecutors still eloquently put everything together in the closing argument, which I thought he'd have a difficult time doing. But he spun a tale that just added up to proof beyond a reasonable doubt to many people. What kept the jury out so long was the defense argument, saying from the very beginning of the trial, the opening statement, it is impossible, ladies and gentlemen, impossible for Westerfield to have done this because science tells us so. And then he spent four or five or six days on entomological evidence, with bug experts talking about when they had access to the body, what generation it was. And if believed, that evidence could have, in fact, exonerated Westerfield because there's no way he had the opportunity to dump the body, literally dump Danielle's body, in the area it was located if that science evidence was believed.

KASICH: Kerry, let me help our viewers with that a little bit. The idea was that the body -- we assumed it was dumped shortly after the kidnapping. But it appeared as though by the evidence involving bug deterioration attacking the body, it was about two weeks old. And they said how could the guy have gone and dumped this when he was under 24-hour surveillance?

I think the counter to that was the body was probably in a mummified state, and that the bugs -- you know, the bugs did not attack it early. Mike, do you think the prosecutor -- I think it's obvious they did a very good job in being able to refute what is really theoretical entomological evidence.

STILL: I think the prosecution did a very good job with that. I thought the defense did a good job in raising that point by calling one of the prosecution's own experts to the stand, in their case, who was the entomologist called by the San Diego Police Department homicide detectives to the scene to collect the bugs. He actually testified for the defense.

The prosecution was forced to, in rebuttal, call an entomologist of their own, one of the preeminent entomologists. And I think he did a very good job of showing the jury that this is a very inprecise, inexact science. The dry weather conditions here in San Diego, the lack of insect population, the mummification of the body, all affected the opinions these experts gave. There was four entomologists who testified during this trial. They all gave differing opinions and obviously the jury considered that in their deliberations.

KASICH: It appears though, that the prosecution were really on top of their game when they were able to refute the defense arguments. Jo-Ellan, the motive that Westerfield collected pornography, child pornography, there is a report that in that was cartoon evidence of a child being attacked. Do you think it was this mode of tying it all together that was so important in terms of getting this verdict today?

DIMITRIUS: Oh, absolutely. In looking at all of the pornography that he had, the type that it was, the variety of media that he had collected, I think that that certainly went a great distance in convincing this jury that he did have a motive. I mean, no one ultimately knows why a pedophile ultimately ends up murdering. But certainly, it lays a pretty good foundation that this was a real sick puppy.

KASICH: Jo-Ellan, a lot of discussion about television in the courtroom. Is this helping Americans to understand the legal system better or is this becoming a hindrance, over and over again, and we may have to go back and consider that -- those types of opportunities to put cameras in the courtroom?

DIMITRIUS: Well, I certainly applaud Judge Mudd's decision to have cameras in the courtroom. I think he wanted to rectify the beliefs that people have about the judicial system resulting from the O.J. Simpson case. I think if you were to ask him again, he may change his mind. But I think it has brought into people's homes what actually happens in a case.

KASICH: Jo-Ellan, we have got to run. I want to thank all of you on the panel. It was a very good and thoughtful analysis.

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