Posted on 07/28/2002 8:56:21 PM PDT by FresnoDA
By Alex Roth
UNION-TRIBUNE STAFF WRITER
July 28, 2002
Expect to hear more evidence about insects as the David Westerfield trial enters what could be the final week of testimony before jury deliberations.
On Tuesday, prosecutors are scheduled to call Dr. M. Lee Goff of the University of Hawaii as their final rebuttal witness in a trial that has lasted 23 court days. Goff is a forensic entomologist and the author of "A Fly for the Prosecution: How Insect Evidence Helps Solve Crimes."
Whether Goff will be the final insect expert in the case jurors have already heard from three witnesses with expert opinions about the behavior of insects on human remains is unclear. Westerfield's lawyers have said they will take at least a day to present evidence to rebut the prosecution's rebuttal.
The trial will not be in session tomorrow because the lawyers and judge are scheduled to hash out the legal instructions that will be read to the jury after the close of testimony. The instructions guide jurors on the law to be applied in the case.
Given the time estimates of the lawyers, it seems likely that closing statements won't come until Thursday, or the following Monday at the earliest. So far there haven't been any Friday sessions in which the jury was present to hear testimony. The judge said the jury will deliberate Mondays through Fridays.
As the case winds down, the battle of the insect experts has emerged as perhaps the final arena in the murder trial. Westerfield's lawyers say the insects found on 7-year-old Danielle van Dam's body prove that it couldn't have been dumped until after Westerfield was under 24-hour police surveillance.
Danielle was reported missing from her home Feb. 2, and her body was found by volunteer searchers Feb. 27 in a remote area off Dehesa Road near the Singing Hills Golf Course in El Cajon.
The defense called two entomologists who testified about blowflies on the girl's body. Westerfield's lawyers say the experts' testimony proves that the remains couldn't have been dumped until mid-February. Westerfield was under constant police surveillance beginning Feb. 5.
The prosecution countered with a forensic anthropologist who said the body's extreme mummification might help explain why blowflies weren't able to access the remains immediately.
Westerfield, a self-employed design engineer who lived two doors from the van Dams in Sabre Springs, is accused of kidnapping and killing Danielle. He is also accused of possession of child pornography, which the prosecution claims shows that he had a sexual interest in girls.
Prosecutors said the pornography some of it depicting violent sexual attacks against young girls was found on Westerfield's computers and on computer disks stored on his office bookshelf.
In a trial of numerous shifts in momentum, legal experts say prosecutors scored a significant blow last week by calling Westerfield's son as a witness. Neal Westerfield, now 19, testified that the computer child pornography in the house was his father's, not his.
Earlier in the trial, the defense presented a computer expert who testified that Neal Westerfield might have been the person who downloaded some of the pornography.
"This is a young man who clearly cares about his dad and has a good relationship with him, so he has no reason to say anything bad," said Peter Liss, a Vista criminal defense lawyer. "He was just truthful."
In this respect, the defense's strategy of trying to blame the son for the child pornography in the house appears to have backfired. Criminal defense lawyer Robert Grimes said the jury is likely to view Neal Westerfield as "basically a nice young college kid" who testified honestly.
Westerfield's lawyers chose not to cross-examine his son. They will indicate this week whether they will call any witnesses to try to refute his testimony.
WHEN WAS DANIELLE VAN DAM KILLED?The time of the 7-year-old's death has become a crucial issue in the capital murder trial of her neighbor, David Westerfield. She was missing for 26 days before rescuers found her naked, badly decomposed body along a roadside. Prosecutors claim she was killed within the first couple days of her abduction when Westerfield says he was alone on a camping trip. But Westerfield's lawyers say the state of her remains indicates the defendant was already under police surveillance when she was killed and, therefore, he could not be the perpetrator. The defense called a pair of forensic entomologists who said bug evidence supported that theory. Prosecutors fought back with their own time-of-death experts. Here's a summary of the contradictory expert testimony. |
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Anatomy of a Murder |
The van Dams
Despite the reluctance of many in the media to explore the van Dams lifestyle choices, one thing is clear: The question of lifestyleboth the Van Dams and that of their neighbor, David Westerfieldis very likely to be a central issue in Westerfields murder trial. And it will be impossible for the media to ignore.
Looking back, Brenda van Dam called it a girls night out. Thats how she described an evening of drinking and dancing with her two girlfriends, on the same night her daughter disappeared. Brenda offered the following version of events that evening:
The three women met two men at a bar. Brady was one of them. They went back to the van Dam house about 2 a.m. Damon van Dam, who had remained home with Danielle and her two brothers, joined the group to eat leftover pizza. The pizza party broke up around 3 a.m., and the van Dams went to bed.
Later that morning, about 9 a.m., the van Dams discovered their daughter was missing.
In the days following Danielles disappearance, allegations about her parents lifestyle began to emerge. There was talk of spouse-swapping and drug use by the van Dams. It had the makings of a public relations nightmare.
At that time, attention was starting to get diverted to allegations of family lifestyle, says a spokeswoman for Fleishman Hillard, an international public relations and communications firm. A week after Danielle disappeared, four employees from the firms San Diego office started working with the van Dams as unpaid volunteers.
The spokeswoman says the van Dams needed help also because of the news crushthe sheer number of reporters now working the storyand the fear other news [stories] would begin to override the search for Danielle. At that point, there was still a child missing, she says. That was the concern.
The Fleishman Hillard employees worked with the van Dams for eight days, but the spokeswoman says the pair didnt need any coaching. In the media, there was a lot of second-guessing, a lot of speculation that the van Dams were heavily media trained. Frankly, thats not true. They knew what they wanted to say; they knew where they wanted the attention to stay focused. We just helped them along.
The spokeswoman has nothing but praise for the van Damsas people and as parents. I dont know that I could have been that strong. I think their strength came from the belief they were doing the right thing in trying to find their daughter. I dont think many people would have been as brave as the van Dams, she says. They were so selfless ... putting themselves through public scrutiny. They proved themselves to be ... good parents [who] do everything they can for their children. Thats exactly what they did.
The public saw another side of the van Dams during David Westerfields preliminary hearing in March. Thats when Brenda described a previous girls night outon January 25, a week before Danielle disappeared. On that night, Brenda testified, she saw Westerfield at Dads, a restaurant and bar in Poway, and he bought her alcohol. But she said she couldnt remember how many drinks she had.
A week later, on February 1, Brenda testified, she, her husband and her two girlfriends smoked marijuana in the van Dam garage. Then the three women went back to Dads for their second girls night out in eight days. Westerfield was back at the bar, too. Brenda testified she and her two girlfriends smoked marijuana again that night in the parking lot at Dadsmarijuana supplied by Rich Brady, the Little League coach.
Brenda acknowledged she told police her two girlfriends were dancing in a sexually provocative manner, rubbing their bodies together. One of the girlfriends, identified as Barbara Easton, tried to grab Brendas breasts, according to the statement Brenda gave investigators.
Westerfields attorney, Steven Feldman, pressed Brenda about her relationship with Easton. Would you characterize Barbara Easton as an intimate friend of yours? Feldman asked.
What do you mean by intimate? Brenda said.
Very close ... sexually very close, Feldman said.
The prosecution objected, and the judge ruled Brenda did not have to answer the question.
When Brenda and her friends came back to the van Dam house on February 1, Easton went upstairs to see Damon van Dam. Under questioning from Westerfields attorney, Damon admitted he initially withheld information from police about what he did with Easton. When he did provide details, he acknowledged telling investigators that Easton got in bed with him. Later during the same hearing, he testified he and Easton kissed and he rubbed her back while he lay in bedbut she was on top of the covers.
A murder trial currently underway in Southern California is proving that alternative sexual lifestyles practiced by consenting adults in the privacy of their own homes can have unforeseen consequences for society at large and in this case, may have cost the life of a little girl.
Seven-year-old Danielle van Dam was discovered missing from her bedroom on Saturday morning, February 2, by her parents Brenda and Damon van Dam. On February 27, her badly decomposed and nude body, minus a foot and reproductive organs, was discovered along a rural roadside in East San Diego County. Because of the bodys condition, the medical examiner was unable to determine the exact cause of death or if little Danielle had been sexually molested.
David Westerfield, a 50-year-old self-employed design engineer and van Dam neighbor, has been charged with Danielles kidnapping and murder. He is also charged with possession of child pornography after police found thousands of pornographic images on his computer.
In opening arguments last week, prosecutor Jeff Dusek told jurors that DNA evidence found in Westerfields motor home and on a jacket would conclusively link him to Danielle, and that his possession of child pornography would supply the motive needed to convict him of her murder.
However, the prosecutions case against Westerfield has been complicated by the van Dams' debauched lifestyle. Westerfields defense attorney Steven Feldman argued that Brenda and Damon van Dams risqué behavior including their promiscuous sexual relationships and marijuana and alcohol use opened their home to several people who could have abducted and killed their daughter.
SWINGING, DRUGS, AND ROCK-AND-ROLL
On February 1, the night Danielle vanished from her home in the upscale San Diego suburb of Sabre Springs, her mother and two female friends, Denise Kemal and Barbara Easton, partied at a local bar. Before leaving for the bar, the three women drank alcohol and smoked marijuana in the van Dams' garage, where a door leading into the house had been altered so that Danielle and her two brothers, then aged 5 and 9, could be locked out from inside the house. Damon van Dam also admitted drinking and smoking marijuana with the women before they left.
Damon stayed home with the children while Brenda, Barbara and Denise went to nearby Dads Café. There, according to court testimony, they continued drinking, danced provocatively, and went outside at one point to smoke more marijuana supplied by another family friend, Rich Brady. They also ran into Westerfield, whom Brenda and Danielle had visited earlier in the week to sell Girl Scout cookies.
When the bar closed, the women described as toasted by that time came back to the van Dam home with Brady and another male friend, Keith Stone, who had expressed a sexual interest in Easton. Upon arriving home, Brenda van Dam noticed that an alarm light was in the house. She and Kemal searched the house and found that the side garage door was open. While they did so, Easton went upstairs to the van Dam bedroom, where she got into bed with Damon van Dam, rubbed his back, and they kissed.
Noticing Eastons absence, Brenda van Dam went upstairs and found her with her husband. She told the two to come downstairs to join the others. Shortly thereafter, all four guests left, and Brenda and Damon went to bed. Sometime after 3:00 a.m., Damon van Dam awoke to find another alarm light blinking. Going downstairs, he discovered the kitchen sliding glass door open. He closed it and went back to bed without checking on the children. Hours later, when Danielle failed to emerge from her bedroom, the van Dams called 911 to report her disappearance.
SWAPPING OR SEX PARTY?
Initially, the van Dams lied to police detectives about their sexual activities and acquaintances. However, on the stand last week, Brenda and Damon confirmed that many of the rumors about their lifestyle which had circulated throughout San Diego since their daughter's disappearance were true.
In addition to his activities the night of Danielles disappearance, Damon van Dam testified that, on at least three occasions, he had sex or tried to have sex with Easton in the presence of his wife. He and Brenda also admitted having had sex with Kemal and her husband, Andy, at a Halloween party in October 2000.
When asked by the prosecuting attorney if she had had a sex party at her home the night of Danielles disappearance, Brenda van Dam denied it, saying, There has never been a sex party at my house. She subsequently admitted to the defense attorney during cross-examination that she and Damon had engaged in sex with the Kemals during the Halloween party but said, I dont consider that to be a sex party. Kemal similarly downplayed the Halloween party, saying it was more like a swap and adding that the van Dam children were not in the home that night.
To date, the remaining van Dam children have not been removed from the home.
MOLES: SWINGING MOCKS MARRIAGE
According to The San Diego Union-Tribune, the Westerfield trial is one of the most closely scrutinized trials in San Diego County history. Its aspects, including the van Dams sexual proclivities, have generated a raucous public discourse ranging from pedophilia to proper parenting.
The case also turns a spotlight on organizations like the National Coalition for Sexual Freedom (NCSF), based in Washington, D.C., that advocates alternative sexual expressions such as swinging (wife-swapping), polyamory (multiple simultaneous sexual relationships), and consensual sadomasochism. See the April 18, 2002 C&F Report article to learn more about the full agenda of the NCSF, which now works closely with major homosexual and transsexual activist groups such as the National Gay and Lesbian Task Force, GLAAD (Gay and Lesbian Alliance Against Defamation) and GenderPAC.
Cindy Moles, director of Concerned Women for America of San Diego and Imperial Counties, has followed the van Dam case and said: This lifestyle cheapens marriage and reduces it to nothing more than a contract between two people who share a house and a checkbook. The swingers movement makes a total mockery out of fidelity and marriage, and threatens the children who would normally find safe haven in a home with parents who are faithful to each other.
Moles said it is interesting that just as special interest groups worked to normalize and legalize homosexuality, organizations like the NCSF are advocating for this appalling swinging lifestyle.
Child advocate Douglas Howard Pierce warned on his Millennium Childrens Fund Web site: America needs to be aware about another type of hidden swingers called family affair. This is when the children are involved in family group sexual encounters. This type of underground activity is prevalent via the Internet and chat rooms titled family affair.
LIFESTYLES HAVE CONSEQUENCES
San Diego pro-family attorney Bill Trask offered the following analysis of the van Dam story: In a criminal case, the defense has to produce enough evidence that causes the jury to doubt that the defendant committed the crime. One way of doing that is to show that there is another reasonable explanation in this case, that the van Dams opened their doors to a variety of unsavory characters.
I think what this case boils down to is a principle that is generally applicable regardless of what the lifestyle is, and that is that even though in our society we are free to engage in any lifestyle we want, it doesnt mean that were free from the consequences of that lifestyle, Trask added.
Allyson Smith, a regular contributor to Culture & Family Report, is a freelance reporter based in San Diego, California.
MAYBE, JUST MAYBE it was a total stranger who abducted seven-year-old Danielle van Dam from her San Diego home almost two weeks ago. Some thug could have picked her parents house at random and snuck in during the middle of the night, evading detection despite the home-security system. Somehow, the intruder could have found his way up to Danielles bedroom and removed her against her willagain, without being noticed.
Then again, maybe not.
The practical realities and crime statisticsless than 1 percent of the 800,000 children reported missing in the U.S. last year were abducted by someone unconnected to the familysuggest otherwise. Yet to judge by the initial coverage of Danielles disappearance on national TV, one would think her kidnapping had to be the exception to the rule.
The story, as first told on The Today Show, Good Morning America, The Early Show, Larry King Live, and America's Most Wanted, mirrored the account of Danielles parents, Brenda and Damon: Brenda was out partying that Friday night with friends at a San Diego nightspot. Damon put the kids to bed around 10. Brenda and her pals showed up around 2:30 and joined Damon for some pizza. The friends then left, and Brenda and Damon went to bed without first checking in on their daughter. They didnt discover that she was missing until 9 a.m. Saturday morning.
As usual, the story behind the story has been available mostly outside the establishment mediaon the Internet and talk radio.
Last Friday, San Diego talk-show host Rick Roberts presented his listeners with an alternative scenario for what might have happened. According to his "reliable" source "high in law enforcement," the van Dams are "swingers," and not in the dancing sense. They engage in "lots of wife-swapping," and reportedly did so in their garage the night Danielle disappeared. According to rumors circulating like mad on local talk shows and Internet bulletin boards, the van Dams lock their garage from the inside during their swingers parties to make sure Danielle and her two brothers dont stumble in on the festivities.
That would explain why the van Dams might have failed to notice an intruder breaking into their home and walking off with their child. It also provides a motive for neighbor David Westerfield, the only suspect thus far identified by San Diego police. According to the rumorswhich are, it should be noted, only thatWesterfield was a frustrated, would-be swinger who wanted to attend the van Dams soirees, but was denied admission for lack of a partner.
Theres more to the Westerfield angle: He saw Mrs. van Dam at the bar earlier in the evening, where, he claims, they danced (which she denies). He also high-tailed it out of San Diego and into the desert the next morning, which was enough to make police suspicious. So far, they have searched his home, where they found child pornography, and seized two of his vehicles, but they havent sought his arrest.
Its easy to speculate by connecting the dots: At the nightclub, Westerfield might have learned about the orgy planned later in the evening. Mindful that Danielles parents would be distracted, he could have used the opportunity to sneak into their home and take her, thereby satisfying his perverted sexual appetites and exacting revenge against the van Dams for not including him in theirs.
Its just a theory, and its rooted purely in conjecture, but its also the best lead available so far, which raises a worthwhile question: Why have so many in the press, the national TV media in particular, been reluctant to pursue it?
Surely its not just that the stories are unsubstantiated. That, after all, never kept the media from investigating claims of Nicole Brown Simpsons drug use, the basis of O.J. defenders absurd charge that drug lords were "the real killer."
For their part, the van Dams have yet to deny the innuendos categorically. Asked about the alleged swinging on a San Diego TV station, Mrs. van Dam replied that "rumors are rumors," and "they have absolutely nothing to do with this investigation." Newsweek, one of few national media outlets thats questioned the van Dams telling of events, quotes their spokeswoman, Sara Fraunces, as issuing the classic non-denial denial: The van Dams "do not lead a perfect lifestyle," she said, but thats immaterial to the matter at hand.
Fraunces no doubt chose her words carefully. In the last 35 years, the term "lifestyle" has become not only the code word for any sort of sexual deviance, but also the quick way to claim a certain immunity from inconvenient questioning about it. This is the same logic Bill Clinton and his defenders used to rationalize perjury and lying to the American public, because it was "just about sex." For Gary Condit, it justified denying his affair to Washington police. His lifestyle took precedence over their duty to find Chandra Levy, dead or alive.
Like the "right to privacy" (a term invoked almost exclusively in sexual matters), the "lifestyle" claim is an appeal to the sexual revolution and its promise of an uninhibited sex life free of all responsibilities and moral judgment. It supersedes even laws, justice, or, in the case of Danielle van Dam and others, human life. To many of the reporters covering the van Dam story, the couples right to privacy similarly transcends the need for a complete and thorough investigation of their daughters disappearance.
But the couples "personal life" is a legitimate subject of inquiry, and not just for investigators. With their appeals to the press and calls for volunteers to help look for Danielle, the van Dams have made the investigation into their daughters kidnapping a very public affair. Privacy concerns should keep neither police nor reporters from pursuing all viable leads certainly not when theres a chance Danielle may still be alive.
It may be, as Mrs. van Dam claims, that Danielles abduction has nothing to do with her parents sexual predilections, but at this point, theres no way for the van Dams to know that for sure. If they are lying about that Friday nights events, then their credibility on all matters must be called into doubt. And even if they are telling the truth about that night, but they hosted sex parties in their home on others, that could yield a long list of potential suspects people with unhealthy sexual behaviors who know the lay of the house.
The fetishization of "privacy" shouldnt keep the van Dams from being forthright, or preclude the press from doing its job. The life of a little girl is at stake.
Maybe they can get a talkshow all their own to replace Rosie..it is good to have a broad overview (pun here) of preversion in your livingroom
"Kiss and????"
"Swap meet"
"The Boob Tube"
Come on fres..what will Brenda and demon call their show?
And the body became "extremely mummified" in just 2-3 days? I don't think so! If the body was extremely mummified, the blowflies wouldn't have been attracted to the body. The prosecution simply has no reasonable explanation for even the obvious discrepencies.
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