Plea deal 'minutes away' when body found

Minutes before Danielle van Dam's remains were found Feb. 27, David Westerfield's lawyers were brokering a deal with prosecutors:

He would tell police where he dumped the 7-year-old girl's body; they would not seek the death penalty.

Law enforcement sources told The San Diego Union-Tribune yesterday defense lawyers Steven Feldman and Robert Boyce were negotiating for a life sentence for the 50-year-old design engineer, a neighbor of the van Dams in Sabre Springs.

The deal they were discussing would have allowed Westerfield to plead guilty to murder and be sentenced to life in prison without the possibility of parole, said the officials, who spoke on condition they not be identified.

Prosecutors were seriously considering the bargain when Danielle's body was discovered off Dehesa Road that afternoon, nearly four weeks after she disappeared from her bedroom.

It was aborted, but details were confirmed yesterday soon after a San Diego Superior Court jury recommended the death penalty for Westerfield.

Feldman and Boyce were at the downtown San Diego jail discussing the final arrangements with Westerfield when volunteer searchers found Danielle's remains beneath trees along Dehesa Road east of El Cajon.

When the lawyers left to meet with prosecutors, they noticed members of the news media gathering in the street and asked what was happening.

After being told a body had been found, they went directly to the nearby Hall of Justice and met with prosecutors. The defense lawyers were handed a copy of a Thomas Guide map of the Dehesa area on which a circle had been drawn indicating the location of the body.

Feldman and Boyce took the map back to Westerfield and later telephoned to say they no longer "had anything to discuss regarding a plea bargain."

Danielle was reported missing from her home the morning of Feb. 2, and Westerfield, who lived two doors away, quickly became the primary suspect. He was watched closely by police for weeks as authorities and volunteers searched from the Sabre Springs neighborhood to the Imperial County desert.

After DNA results linked Westerfield to the crime, he was arrested Feb. 22 and charged with kidnapping and burglary.

Three days later, even though Danielle's body had not been found, District Attorney Paul Pfingst announced murder and kidnapping charges would be filed that could carry the death penalty.

Many law enforcement officials feared Danielle's body might never be found. Then, on Feb. 27, volunteer searchers combing the Dehesa area, far from where police had focused, found Danielle's badly decomposed remains.

At that point, the official sources said yesterday, any opportunity Westerfield and his lawyers had to win a plea bargain evaporated.

STAFF WRITER

September 17, 2002

A jury decided David Westerfield should die for the kidnapping and murder of 7-year-old Danielle van Dam, bringing a dramatic end to what probably was the most notorious criminal trial in San Diego County history.

Westerfield showed no reaction yesterday as the court clerk announced at 1:45 p.m. that the jury's recommendation was execution.

The verdict came after a bizarre sequence of events in which the jury first declared itself deadlocked, then said it needed more time and finally announced that it had reached a unanimous decision.

The young victim's mother gasped slightly at the verdict and clutched her husband's hand. Minutes later, a juror began fanning herself and mouthed the words "I'm sick" to a bailiff. Superior Court Judge William Mudd called a quick break to let the juror leave the courtroom and compose herself.

None of the other jurors had any visible reaction. Most avoided looking at Westerfield, although one woman made a point of staring at him.

Mudd scheduled sentencing for Nov. 22. Despite the jury's recommendation, the judge has the authority to reduce Westerfield's sentence to life without parole, a move that would be rare but not unprecedented for a San Diego judge.

Danielle's parents – Damon van Dam, 37, a software engineer, and Brenda, 39, a homemaker – left the downtown San Diego courthouse without commenting. Later, outside their home, Brenda van Dam described the couple as "relieved." They have scheduled a news conference this morning at La Jolla Shores beach.

"There's certainly no excitement, no joy, no glee," Deputy District Attorney Jeff Dusek, the lead prosecutor, told reporters later. "Those words wouldn't be appropriate in this case."

In a brief statement, Westerfield's lead attorney said the death penalty is morally wrong.

"Tragically, two killings will never justify one," attorney Steven Feldman said.

Westerfield's mother, who is 70 and lives in Clairemont, began shaking and was escorted from the courtroom shortly after the death verdict was announced. She didn't speak to reporters.

Forensic evidence cited

In interviews after their decision, two jurors said the horrible details of the crime persuaded them to recommend the death penalty for Westerfield.

The two men said the forensic evidence in the case – including blood from Danielle found on a jacket that Westerfield took to a dry cleaner – convinced them he was guilty of the girl's abduction and murder. They said that was perhaps the single most powerful piece of evidence in the trial.

The six-man, six-women jury convicted Westerfield on Aug. 21 of murder, kidnapping and possession of child pornography. In the second phase of the trial, they had to choose between the death penalty and life in prison without parole.

The jury's death recommendation comes 32 weeks after Danielle was discovered missing from the bedroom of her suburban Sabre Springs home the morning of Feb. 2. Her disappearance launched one of the largest volunteer search efforts in county history, a search that ended with the discovery of the girl's nude body off Dehesa Road east of El Cajon on Feb. 27.

Westerfield, who lived two doors from the van Dams, became a suspect in the girl's disappearance within days. He gave several interviews to police, telling them he went on a meandering 550-mile journey in his motor home that weekend. Police quickly suspected he was lying.

The 50-year-old twice-divorced design engineer had no criminal record aside from a drunken-driving conviction, and once bought Girl Scout cookies from Danielle and her mother.

At trial, prosecutors suggested he was a pedophile who collected child pornography and sneaked into the girl's house in the middle of the night to snatch her from her bed.

Police conducted an exhaustive forensic examination of Westerfield's house, Toyota 4Runner and 35-foot Southwind motor home. They found Danielle's blood, hair and fingerprints – as well as dog hairs and fibers consistent with the girl and the family dog. They also discovered a number of inconsistencies with his alibi for that weekend.

Unusual sequence

The sequence of events that unfolded yesterday before the verdict was so unusual that District Attorney Paul Pfingst and the prosecutors on the case said they had never seen anything like it.

The day began with the jury resuming its deliberations after a four-day break due to one juror's illness and another juror's scheduling conflict. Before yesterday, the jurors had been deliberating Westerfield's punishment for parts of four days.

At 11:45 a.m., the panel sent a note to Mudd stating, "We are unable to reach a unanimous verdict at this time and would like further guidance."

The judge scheduled a hearing for 1:30 p.m. Five minutes before the scheduled start of the hearing, the jurors sent another note saying they needed more time to deliberate. Ten minutes later, they sent a third note announcing, "We have reached a unanimous verdict."

Both jurors who chose to be interviewed by the media declined to discuss the chain of events. Prosecutor Dusek and his co-counsel, George "Woody" Clarke, who spoke to seven of the jurors in a private room along with Westerfield's defense team, said the panel didn't reveal how the jury seemingly went from being deadlocked to reaching consensus.

Before the verdict was announced, Feldman asked the judge for a mistrial, arguing that the sequence of notes indicated the jurors had improperly debated the case during the lunch hour, when they were supposed to be in recess. The judge denied the motion.

The jury verdict brought a conclusion to a trial that attracted a level of publicity never seen before in a San Diego criminal case.

In the days and weeks after the second-grader vanished, the case became a media maelstrom, especially after revelations about the lifestyle of Danielle's parents, who admitted they smoked marijuana and sometimes swapped sex partners with their friends. Brenda van Dam was partying with friends at a local bar the night before her daughter was reported missing.

Within weeks, the case gave rise to public debate about proper parenting and prompted concerns about whether children can feel safe in their own bedrooms, even in the relatively crime-free suburbs of San Diego.

One of the jurors yesterday said details of the parents' private lives had virtually no impact on his deliberations. The juror, a claims adjuster who gave his first name as Jeffrey, said he considered that information irrelevant to the question of who killed Danielle.

Message to child killers

At the prosecution's news conference, Dusek, the lead prosecutor, said he was "absolutely convinced the jury made the right decision."

District Attorney Paul Pfingst said the jury's verdict proves that anyone who commits such a crime must "understand that a San Diego jury is likely to ensure that you get no mercy."

"No greater harm can happen to a community than to have a child taken from the safety of her own bedroom – taken, abused and killed," Pfingst said.

At trial, the defense portrayed Westerfield as a successful professional and a normal man with two college-age children and a loyal group of friends.

Many of his friends, including an ex-girlfriend who lived with him after his divorce from his second wife, testified on his behalf at the guilt and penalty phases of the case. Many of them have continued to express disbelief that he had anything to do with the crime.

"Do I think the man got a truly fair trial? No," said Dave Laspisa, a camping buddy and former neighbor. " . . . I'm quite surprised they sentenced him to death with so many questions left unanswered."

Laspisa noted that police never found any physical evidence placing Westerfield inside the van Dams' house.

Another longtime friend said he spoke to Westerfield in jail two weeks ago and that Westerfield continued to maintain his innocence. The friend, Wesley Hill of Utah, said he and his wife spoke to Westerfield shortly before testifying on Westerfield's behalf in the penalty phase of the case.

"He didn't do it – either that or he's the coolest liar I've ever seen," said Hill, a former co-worker of Westerfield's and the best man at Westerfield's second wedding.

"He said there were things that didn't come out at the trial and when they did, maybe then we could find out who did it."

Hill said Westerfield also told him county jail inmates wanted to kill him at first but later changed their minds as the trial unfolded.

"As they watched the trial and saw what was going on, they were on his side," Hill said. "They didn't think he did it, either."

Child pornography

Although his friends and lawyers insist that Westerfield isn't capable of such a horrible crime, the prosecution presented evidence during the penalty phase of the trial that Westerfield's conduct with a child had been questioned before.

A niece recounted how she awoke one night a decade ago to find Westerfield rubbing her teeth with his finger. She reported the incident to her mother, saying she was disturbed by it. The mother confronted Westerfield, who later told police he had been accused of molesting the girl.

Prosecutors said the incident provided an early hint of Westerfield's sexual attraction to young girls. During the guilt phase of the trial, jurors saw child pornography found on computer disks in Westerfield's house, including several graphic videos depicting young girls being raped.

In California, a judge has the authority to impose a life sentence even if the jury recommends death.

Since Pfingst took office in 1995, San Diego juries have returned 10 other death recommendations. In only one of those cases did the judge impose a life sentence instead. (In another case, the defendant has yet to be sentenced by the judge.)

In 1996, Judge John Thompson rejected the death penalty and opted for life without parole in the case of Antonio Madrid, who was convicted of setting fire to a transient, Tracy Foose. Thompson cited Madrid's youth – he was 20 – and lack of criminal record in rejecting the death recommendation.

Alex Roth: (619) 542-4558;

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