Physical evidence shows Westerfield committed 'evil, evil crime,' prosecutor says
By Jeff Dillon
SIGNONSANDIEGO
August 6, 2002
Hairs, fibers, DNA and other physical evidence clearly point to David Westerfield as the man who committed the "evil, evil crime" of kidnapping and killing 7-year-old Danielle van Dam, the lead prosecutor contended today.
A hidden collection of cartoons that depict old men forcing themselves on screaming young girls shows Westerfield's 'primal needs' and his motive for the crime, prosecutor Jeff Dusek told jurors during his closing argument.
"If you can tell me why a normal 50-year-old man would collect that kind of stuff, I will tell you why a 50-year-old man will kidnap and rape, excuse me, kidnap and kill a 7-year-old girl," Dusek said.
But lead defense attorney Steven Feldman retorted during the start of his closing argument that all the evidence against his client was circumstantial and that Westerfield deserved the presumption of innocence.
"They're speculating. They're throwing up pornography and pictures as a motive," Feldman told the jury. "The speculation that you heard from counsel regarding those photographs was an outrage."
Westerfield is accused of kidnapping Danielle from her Sabre Springs home on Feb. 2 and killing her. He is charged with kidnapping, murder with special circumstances and possession of child pornography.
Westerfield, who lived two doors down from the van Dams, was an early suspect in the case and came under police surveillance on Feb. 5.
After a massive community search that drew national attention, Danielle's naked and decomposing body was found dumped off rural Dehesa Road near El Cajon on Feb. 27.
Jurors have heard 24 days of testimony and have seen 199 exhibits since the trial began on June 5.
Today's session began with Superior Court Judge William Mudd reading legal instructions to the jury for about an hour. Dusek then spent about 3 1/2 hours presenting his closing argument. Feldman spoke for a little more than an hour and will resume Wednesday morning.
Dusek will then get to make a final rebuttal.
'A simple case'
In his closing argument, Dusek argued that the case against Westerfield was straightforward.
About 55 hours after 7-year-old Danielle van Dam was reported missing from her bedroom, David Westerfield showed up at a dry cleaners with a jacket, a comforter and some other laundry.
On Westerfield's comforter were hairs from the van Dam family dog, prosecutor Jeff Dusek told jurors. And on the jacket were splotches of Danielle's blood.
"That, in and of itself, tells you he's guilty beyond a reasonable doubt. That alone," Dusek said during closing arguments expected to last well into the afternoon. "But it doesn't stop there."
Westerfield also is implicated by DNA evidence, fiber evidence and lies he told to police about his whereabouts the weekend of Danielle's disappearance, Dusek said.
"This case, if you step back and look at it all, is a simple case," Dusek told the jurors. "This is not a complex case, though at times it may have seemed that way with the DNA and all that scientific evidence."
Police first encountered Westerfield on the morning of Monday, Feb. 4, two days after Danielle was reported missing. Westerfield was returning home after spending the weekend driving in his motor home and was the last neighbor to be interviewed.
When Westerfield's initial story showed some holes, police dug deeper, Dusek said, interviewing neighbors, searching his house and finding the laundry left at the dry cleaners.
Eventually, DNA tests confirmed that Westerfield had spots of Danielle's blood on his jacket and on the floor of his motor home, Dusek said. Orange acrylic fibers found on Danielle's body matched those found in Westerfield's laundry and on his bed. Other fibers linked Danielle to Westerfield's SUV.
"It's a simple case. There's more. There's more to this horrible crime, this evil, evil crime because of his conduct and what he did afterwards to get away with it," Dusek said.
And that was to dump Danielle's body in Dehesa, to try to launder away the hair and fiber evidence and for his lawyers to eventually blame his son, David Neal Westerfield, for the disks full of pornographic images found in his office.
'How it was done'
There are some questions in the case that no one can answer, Dusek said. How did Westerfield get into the van Dam house and get Danielle out? How was Danielle killed? When was Danielle killed?
"I do not have to prove, and you do not have to decide, how it was done, just that it was done," Dusek said.
But he offered two possibilities for the abduction, the "best" way that most closely fits the evidence and another way.
Under the "best" way, Westerfield entered the house through the side door to the garage, a door that a visitor testified she had left unlocked that evening, Dusek said. And because the van Dam parents had reversed the lock on the door between the house and the garage so they could lock the kids out of the garage while they smoke marijuana, anyone who got into the garage could then get into the house.
Dusek speculated that Westerfield walked up to Danielle's second-floor bedroom while she, her father and her two brothers were sleeping and her mother was out with the friends.
But then the mother and the friends came home, waking father Damon van Dam and forcing Westerfield to hide in Danielle's bedroom while the van Dams searched for the source of a blinking light on their silent alarm panel.
And after the friends left and the van Dams went to bed, Westerfield slipped downstairs with Danielle and left through a sliding glass door that Damon van Dam later found open.
"He got lucky. He got desperate, but he got lucky," Dusek said. "The bottom line, though, is he did it, he got away with it."
Physical evidence
Dusek dismissed much of the so-called bug evidence that became the focus of the final days of the trial.
Feldman had argued in his opening statement that scientific evidence would prove it was impossible for his client to have killed Danielle. During the trial he called forensic entomologists who calculated that the oldest fly larvae found growing on Danielle's body could not have been laid any earlier than mid-February, long after Westerfield came under police surveillance.
Though one of the defense experts had originally been called into the case by police and Dusek had called his own witnesses to counter the bug evidence point by point, he argued today that forensic entomology was not an exact science.
"This is not DNA. This is not radiology. This may not even come close to psychology," he said.
And the defense was using the bug evidence in the wrong day, Dusek argued. It could prove that a victim was killed before a defendant had the opportunity – but it only provided a minimum amount of time since time of death, not a maximum.
Dusek walked the jury through all of the physical evidence presented during the case, focusing on hairs from Danielle found in the motor home and Westerfield's laundry, the orange and blue fibers and the traces of Danielle's blood.
He repeatedly reminded jurors about their field trip to Westerfield's motor home, pointing out they had to step over the spot on the floor where her blood samples had been removed.
"We know this wasn't all transferred. We know she didn't just walk through his motorhome and drop hairs here and fibers there," Dusek said. "Why was all the evidence found in one spot, in the bed in the motor home, in his bed?"
He also dismissed an anticipated defense argument that an as-yet-unknown individual had actually kidnapped Danielle.
"You have to make your decision on the evidence. On the testimony that comes in," Dusek said. "The bogeyman didn't do this crime either, as much as they want you to believe that."
Burden of proof
Feldman began his closing argument by focusing on procedural issues and reminding jurors that his client deserved the presumption of innocence and that the burden was on the prosecution to prove its case to them beyond a reasonable doubt.
"You are what separate us from the Taliban," Feldman said.
The case against Westerfield is "entirely" based on circumstantial evidence, Feldman said. He repeatedly restated one of the judge's legal instructions to the jury: that when there were two reasonable interpretations of circumstantial evidence they must accept the interpretation that supports the defendant's innocence.
For example, when jurors were presented with two reasonable interpretations for why hairs from Danielle were found in Westerfield's motor home with the roots still attached – that they came out while she was playing in the motor home or that they came out while Westerfield was assaulting her – they were obligated to assume Danielle had been playing in the motor home, Feldman said.
"When two contested interpretations arise, (evidence) must be construed in favor of the defense," Feldman said.
That also applies to the defense suggestion that the orange acrylic fibers found on Danielle's body and in Westerfield's laundry came from an orange acrylic sweater worn by Brenda van Dam when she reportedly engaged in "huggy-huggy dirty dancing" with Westerfield at Dad's Café, Feldman said.
Dusek objected to Feldman's fiber claim and Mudd, in a rare interjection, said that Brenda van Dam's sweater was red.
Feldman turned to the jurors and told them it would be up to them to judge the evidence.
Feldman also said he was outraged by Dusek's characterization of his case, saying it was the prosecution, not the defense, that first questioned the van Dams about their sexual proclivities and that he had never suggested that Westerfield's son, 19-year-old David Neal Westerfield, was involved in Danielle's kidnapping.
"Never, except for those whose cup is half-empty, with sulfuric acid at that, is the inference drawn that the defense pointed a finger at Neal Westerfield," Feldman said.
And as Dusek had anticipated, Feldman said Danielle must have been kidnapped by someone familiar with the van Dams' home and van Dams' dog, someone who had been invited there before to party with the parents, someone who was not his client.
"There is evidence that I'm going to show you that someone was in that evidence other than David Westerfield," Feldman said.
He made a comment about the elaborate exhibits prepared by the prosecution, then held up a blank poster.
"This is the evidence of David Westerfield being in the van Dam residence," Feldman said.
Feldman said he would elaborate during the remainder of his closing argument on Wednesday.
Jury instructions
Dusek began his closing arguments after Mudd spent nearly an hour reading instructions to the jury on issues such as what sorts of evidence they can consider and what facts must be proved to convict Westerfield of various charges.
Mudd warned jurors that the instructions could come across as convoluted, but said they would able to review them in writing during their deliberations.
"Sit back, relax and absorb as much of this material as you can," Mudd said.
Among the points:
- Jurors need not find that Westerfield intended to kill Danielle in order to convict him with a "special circumstance" that could lead to the death penalty if they conclude he killed her unintentionally during a kidnapping or while in flight.
They must determine that Danielle was still alive when she was moved to convict Westerfield of kidnapping.
- Mere possession of "straightforward nude photographs" of minor children is not prohibited. The jury must agree that Westerfield knowingly possessed specific prohibited images depicting minors under the age of 18 engaging in or simulating sexual conduct. "Virtual" images such as computer animations are not prohibited under California law.
- Because Westerfield's attorney presented evidence that suggested he was driving around San Diego County when Danielle was killed, the jurors must find him not guilty if they have a reasonable doubt that he was at the scene.
- Voluntary intoxication is not a defense for committing a crime, but can be considered in determining whether the defendant had a "specific intent" to commit the crime.
- What penalty or punishment might be imposed on Westerfield if he's convicted cannot be considered during the deliberations.