Skip to comments.Silence on part of defendant may be hard to ignore
Posted on 08/05/2002 6:54:33 AM PDT by Jaded
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."
No witnesses today.
They'll finalize jury instruction.
If Feldman's forensic anthropologist is going to testify, Feldman will turn over his report to the prosecution.
She started out the program with Feldman asking the Judge for the Jury to be sequestered..."pointing the FINGER DIRECTLY AT ME!!"...more to come.
Oh Nancy, you are sooo predictable.
Still waiting for Nancy "kimmiegrace" to speak about Feldman charging CTV with being "less than objectiionable toward DW".
Nan did mention she is waiting for the Jury to bring in their verdict to serve JUSTICE for Danielle.
Wonder what she means by that?
Rodger Cossack said that over 31% of those polled on CTV think that DW is not guilty, and said that is quite a hefty figure against the ususal "prosecution" case. Interesting.
Kimmiegrace, here we go...she's talking about the sequestration. "Buckle your seat belts, buddie"..
"As flatered as I am, that even a "comment" I have made, could even sway the outcome of this trial"..."Is it enough to boil over into a sequestration order?".
Now, she and her guest are claiming they have NOT been one-sided!!!
Of course you don't want them to be sequestered, Nancy...more time to spill your venom against Westerfield, you hypocritical pig, you!
Considering they are biased against DW, this is a significant number. Could signal a hung Jury if the not-guilty Juror's have a stubborn streak!
Focus on that..she's one messed up personality.
Do not think for one second, as you have tried to imply, that some of us trial watchers are making light of the child porn. For the millionth time..we deploy child porn. How many times do we have to print it out..how many, Kim?
If YOU think that DW should be put to death, because of it...and that would be the State's case against him, the child porn..then it is between you and your conscience.
Not ONE Forensic psychiatrist would dare testify that it was a Motive, or an indicator. NOT ONE.
That's all I'm going to say, without losing it, Kim.
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