Van Dam Case May Slant Jury Against Westerfield: Pro-Capital-Punishment Jury Sought

By seeking the death penalty against David Westerfield, prosecutors have done more than just raise the stakes in the high-profile case. They've also helped shape the philosophical outlook of the jury.

Because the Westerfield trial is a capital case, all the jurors – whether they're CEOs or janitors, retirees or recent college grads – will have one thing in common: A stated belief that the death penalty is appropriate under certain circumstances.

Under state law, a jury in a capital case must be "death-qualified." That is, anyone who is morally opposed to capital punishment must be excused from a death-penalty case during jury selection.

"What you get is a jury full of people saying, 'Yeah, I can kill him,' " San Diego criminal defense lawyer Marc Carlos said. "Which is always a problem for the defense."

Westerfield is charged with kidnapping and murdering his Sabre Springs neighbor, 7-year-old Danielle van Dam. On Tuesday, a judge and lawyers in San Diego Superior Court are scheduled to begin interviewing prospective jurors in groups of 20, and among the issues the parties will be sure to probe are the potential jurors' feelings about capital punishment.

Because any juror in a capital case must agree that execution is sometimes an appropriate punishment, these juries are inevitably more conservative than they otherwise might be. It is a demographic, legal experts say, that usually benefits the prosecution.

Prosecutors in the Westerfield case will also be seeking jurors with several other basic characteristics, these legal experts predicted.

They'll look for people who hold positions of power and are good at making decisions – people who "tend to think linear," according to San Diego attorney Mike Still, a former prosecutor.

"You want people who are able to look at a set of facts, a set of circumstances, and make a decision," Still said.

The defense, on the other hand, wants people who look at life in shades of gray, who are suspicious of authority, who are comfortable holding a minority opinion – people who "have a different reference group," according to David Graeven of Trial Behavior Consulting Inc., a San Francisco firm that helps pick juries.

Opponents of capital punishment have long criticized the process of death-qualifying juries for capital cases, arguing that it tends to stack a jury with law-and-order types.

"The argument is that a death-qualified jury is a more conviction-prone jury," said Professor Gerald Uelmen of Santa Clara University School of Law.

The U.S. Supreme Court has twice rejected the argument that excluding death-penalty opponents from sitting as jurors in capital cases is unconstitutional, Uelmen said.

There are some benefits to the defense of having a death-qualified jury, some legal experts say. The process also weeds out pro-prosecution extremists who believe that all convicted murderers should be executed, regardless of the circumstances.

That's because in addition to being willing to impose the death penalty under appropriate circumstances, jurors in capital cases also must be open to the possibility of voting for life prison terms without parole.

San Diego attorney Dan Williams, a former prosecutor who won a death sentence against convicted killer David Lucas, said he thinks juries in death cases hold prosecutors to a higher standard than they otherwise might.

While they're willing to impose the death penalty if the facts call for it, these juries won't tolerate any sloppiness or ambiguity with the prosecution's case, Williams said.

It's unclear how long jury selection in the Westerfield case will take. On May 17, 263 jurors filled out questionnaires that asked a variety of questions about their personal lives and their attitudes about criminal justice.

The lawyers have spent the last week reviewing these responses. Tuesday will mark the beginning of what is known as voir dire, in which these potential jurors are brought into the courtroom to face direct questioning from the lawyers and Judge William Mudd.

In addition to removing potential jurors who oppose capital punishment, the judge can also remove them for a variety of legal reasons, such as the potential juror expresses or demonstrates an inability to be fair and impartial.

In capital cases, the prosecution and the defense each have 20 challenges they can use to remove any potential juror for almost any reason they want. It is unconstitutional to use these challenges to remove a juror based on race, gender or several other factors.

Williams, the former prosecutor, predicted that Westerfield's lawyers will be looking for people who are offended by the lifestyle of Danielle's parents, both of whom admitted smoking marijuana on the night in February that their daughter vanished. Westerfield's lawyers have also suggested the couple was involved in spouse-swapping.

The danger for the defense is that these same jurors might also be offended by Westerfield's alleged lifestyle. The 50-year-old twice-divorced design engineer, who lived two doors away, is also charged with possessing child pornography. Prosecutors said they believe he sexually assaulted Danielle before killing her.

The conventional wisdom is that accountants, engineers and retired military people tend to be good prosecution jurors, while social workers, college professors and artists are good for the defense.

But broad generalities are often misleading. When it comes to picking jurors, most lawyers simply trust their gut.

"In the end," said Carlos, the defense lawyer, "you look at these people straight up and say, 'Is this a person I can trust and is this a person I want sitting on my jury?' "

"...you'd be conned in paying $50.00 to see all this lurid stuff discussed in the shadows, hoping for that crumb that will satisfy your cravings. Slow for car accidents too?"

Ah, $50, eh? No one over here is hawking memberships at Jams. Some have been quite critical of Jams. And most of us pay many times that amount to help support Free Republic. You do financially support Free Republic, don't you?

"....if ya only knew the articles I've posted since 1997..."

Someone's blowing smoke here. On your profile page, you write:

I've been around since 1998 but had to get a new hat after I forgot my old password and couldn't retrieve it from JimRob via email. I had changed email addy's since then...ICAC.

Well, golly gee, wouldn't it be awfully difficult to post messages here a year before you were actually here? Now, I have to wonder if you're telling the truth about anything. Well, that's a little harsh. I believe you were telling the truth when you said you weren't here to contribute constructively to the collection of information about this case.

The question also is, does the prosecution (DA) only have 30 pieces, but due to upcoming REELECTION, is willing to tell everyone the puzzle is completed.

That really is the question, isn't it. Does Dusek have his ducks in a row? If he did why the need for all the hype from the media shills? Come on, Feldman's no idiot, he knows what he's doing. What purpose would it serve to trash his own reputation for expedience? He knows something.

I don't think the media hype came from Dusek, or was used by him. The media is it's own player with a vested monetary interest in hype. It sells.

And Feldman risks none of his reputation. If he loses this case due to an avalanche of evidence, the public perception will be "Wow!, He fought hard for that guy, and kept everyone guessing, even against those odds and that evidence". And if he wins, nuff said. His rep is secure.

MizSterious wrote: "Someone's blowing smoke here. On your profile page, you write:

I've been around since 1998 but had to get a new hat after I forgot my old password and couldn't retrieve it from JimRob via email. I had changed email addy's since then...ICAC.

402 posted on 5/31/02 9:04 AM Eastern by MizSterious"

You are trying way to hard here to cause me grief.

I never said I posted articles at FR. Try reading more closely. There is a big internet out there and I've been on it since 1997. I have been making my contributions to the cause of crime against children since that year.

Please discontinue your smear campaign against me. I don't want or need your endorsement. I was ignoring your baiting until you again tried to belittle me.

ALSO, do not contact be by FreepMail again. Moderator take note please.

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Pro-capital-punishment jury sought