Skip to comments.San Diego Swings: Van Dam trial brings "swinging" into the spotlight!
Posted on 08/03/2002 6:32:12 AM PDT by FresnoDA
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Not to be picky, but "median" and "average" are not the same thing (although, coincidentally, they might have been the same thing in this case). It just depends on what you are looking for. "Median" vs. "mean" can often have very different results; it's one of those "lie with statistics" type of things.
By Alex Roth
August 4, 2002
During eight weeks of testimony in the David Westerfield trial, jurors have heard from grieving parents, cops, barflies, forensic analysts, bug experts and people who drive dune buggies around the desert wearing video cameras on their heads.
But there's one person whose silence has been conspicuous Westerfield himself. Closing statements in the kidnap-murder trial are scheduled for this week, and it's now clear that Westerfield won't be testifying on his own behalf.
As a legal matter, it shouldn't make any difference. He has a constitutional right to remain silent, and the jury is forbidden by law from holding his silence against him.
But what about as a practical matter? Jurors are human, and most people might find it hard to understand why Westerfield, if he's innocent of killing 7-year-old Danielle van Dam, wouldn't demand the opportunity to say so on the witness stand.
In this respect, the Westerfield trial highlights one of the ironies of the criminal justice system: A defendant's decision to remain silent can be both totally meaningless and, at least arguably, one of the most telling details of all.
"It's the elephant in the middle of the room," said San Diego defense lawyer Dan Williams, who has been providing media commentary on the trial.
In interviews last week, several legal experts expressed opinions on whether Westerfield's decision to stay off the witness stand would have any effect on the verdict. The self-employed design engineer is accused of abducting and killing his Sabre Springs neighbor the first weekend in February.
Jurors will be given a standard instruction not to consider that Westerfield didn't take the stand. Jurors can usually be trusted to follow the law, the legal experts say.
Alameda County prosecutor Jim Anderson has tried 15 death penalty cases, and in every case but one the defendant opted not to testify. In general, jurors have always assured Anderson after their verdicts that they didn't hold the defendant's silence against him, he said.
"From my experience, they do follow the court's instructions and give it no weight whatsoever," he said.
Other experts predicted that Westerfield's silence would almost certainly have some effect on the jury, even if only on a subconscious level. Given the damning physical evidence, there are some questions only Westerfield himself can answer.
How did the girl's blood, hair and fingerprints get inside his motor home? Why did his jacket have her blood on it, and why did he take that jacket to a dry cleaner? Why didn't he bother to tell police about his trip to the cleaner with the bloodstained jacket on the morning of Feb. 4?
While it's unlikely that the jury will openly discuss Westerfield's silence during deliberations that would be a direct violation of law it might affect the jurors in ways they don't even realize.
"It's very difficult for them not to be affected by him not getting up there and answering some of these questions," said Williams, a former San Diego deputy district attorney. "It'll be down inside of them. It's got to be. It's just human nature."
Although the public might be tempted to infer guilt from silence, several defense lawyers said there are valid strategic reasons for keeping a client off the witness stand, even if he's innocent.
Many defense lawyers say they don't want a stupid or inarticulate client to testify, even if he's not guilty. The risk is too great that the client will be obliterated on cross-examination.
"Some people make terrible witnesses, including innocent defendants," said Vista criminal defense lawyer Peter Liss.
What's more, even if a defendant is innocent, he may have engaged in behavior that's unseemly, suspicious or simply doesn't make any sense. In those situations, a defendant might sink himself by trying to explain his conduct to the jury.
If Westerfield were to testify, for instance, he would have to explain the child pornography found on computer disks in his home office. Liss said he could imagine prosecutors spending an hour or two asking Westerfield about each and every image.
By taking the stand, Westerfield would give prosecutors the chance to "twist the focus of the case onto an unfavorable aspect of his personality," Liss said.
"Undue attention is paid to the child porn, and it diverts the jury's attention away from the truth," he added.
By testifying, a defendant may also give prosecutors the opportunity to present evidence that otherwise might not be admissible. For instance, when a defendant testifies, prosecutors can attack his credibility by telling the jury about certain criminal convictions in the defendant's background.
Westerfield's criminal record consists of a drunken-driving conviction. It's unclear whether he has anything else in his background that could have been used against him on the witness stand. The judge has held a number of hearings to discuss what evidence will be admitted in the case, but those hearings have been closed to the public.
Despite all the pitfalls in a defendant's testifying, some defense lawyers said they would have recommended that Westerfield take the stand. There's simply too much evidence that needs to be explained, they said.
"This isn't a stupid guy who can't speak for himself," Carlsbad criminal defense lawyer Dave Thompson said. "And we've got this mountain of physical evidence."
The risk, of course, is that Westerfield might offer such an unconvincing explanation that his credibility is destroyed.
"If the guy gets up there and can't explain away the physical evidence," Thompson said, "you now have eliminated all doubt."
Alex Roth: (619) 542-4558;
Developmental Rates and Thresholds
Insects are cold-blooded, mammals are warm-blooded. We mammals generate heat and control our own temparature. Insects do not generate body heat and control their own temparature, they remain at the same temperature as their environment. At a certain temperature an insect's biochemical reactions cannot proceed and development stops. This temperature is known as the insect's developmental threshold or developmental base and it varies among species.
Charting the ambient temperature makes it possible to track insect development, which is directly proportional to the amount temparature accumulated above the developmental threshold temperature. This accumulation of temperature over a day's time is a heat unit known as degree-days (DD).
Degree-Day Calculation Methods
There are different ways to determine the quantity of degree day heat units. We calculate them by calculating the area under a temperature versus time graph on a given day. The methods are listed below in order of precision in measuring small changes during the day or departures from idealized heating and cooling trends (see figure).
Average or Max/Min Method - This method is the simplest and least precise. It assumes that the daily temperature graph is linear and that the area beneath it is triangular.
DD = [Daily max temp + Daily min temp*]/2 - Devel. Threshold (* If Daily min temp < Devel. Threshold, substitute Devel. Threshold)
Sine Wave (Baskerville-Emin) Method - This method is more precise and assumes that the daily temperature cycle takes the form of a sine wave. This method makes the same use of daily maximum and minimum temperatures and developmental threshold as does the Average Method. Using the Sine Wave Method tends to accumulate more DDs than the Average Method, particularly during the early part of the season.
Continuous Integration Method - This method is the most precise and requires multiple temperature readings hourly or more frequently throughout the day to obtain a temperature versus time graph that is truly representative of a field situation.
Relating Degree-Days to Life Cycle and Development These methods are attempts to correlate a pest event or activity with another event that can be measured more precisely. Events in an insect's life cycle often occur after the same heat units have accumulated each generation, but many generations' observations must be collected to measure this precisely. Degree-days can be used to predict events wherever weather data are available.
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