SDUT on Feb. 4, 2019 Supreme Court Opinion
The most recent case summary is this one by Greg Moran of the SD Union Tribune, on the occasion of the California Supreme Court Opinion published on Feb. 4, 2019.
www.sandiegouniontribune.com/news/courts/sd-me-westerfield-death-sentence-20190204-story.html
www.sandiegouniontribune.com/news/courts/sd-me-westerfield-death-sentence-20190204-story.html
WESTERFIELD AND VAN DAM CASE SUMMARIES, 2002
AP photo: Danielle van Dam, D.Westerfield
There are actually two separate cases here:
(1) the disappearance of Danielle van Dam, on February 1, 2002,
never correctly solved by local authorities; and
(2) the flawed investigation, subsequent trial (two phases), and
wrongful conviction of David Westerfield in the spring, summer and fall of 2002.
The media view of this "case," the public discussion of law enforcement's solution to the original crime, has appeared ad nauseam in the media. I feel no urge to re-invent that particular wheel.
There are many "case" summaries, each with their own spin, and errors; short ones and long ones, take your pick. They invariably mix the two cases together.
1. Encyclopedic, exhaustively detailed study: Rush to Judgement: A critical examination of the David Westerfield, Danielle van Dam child kidnapping and murder case (c. 2007-2011).
2. An abbreviated, neutral version: Wikipedia article: David Westerfield; see also "Locard transfer."
3. An attorney's reasonably detailed (longer) summary: Appellant's Opening Brief
4. A snide and sneering, shorter version: Respondent's Brief
5. Close but no cigar: C. Wecht & D. Kaufman, A Question of Murder
(I have not listed Wecht on the Books page because it contains major errors in the Westerfield section and a grossly biased remark about Westerfield by Ann Rule in the Foreword. I do not "support" this book. One wonders if Dr. Wecht ever saw it.)
6. A comprehensive Law Enforcement version, with photos, by co-counsel Geo. 'Woody' Clarke, Law Enforcement Quarterly, Winter 2002, p. 9-15. (Judge Geo. Clarke died in 2012.)
7. A supporter's web site: Don't Tell the Jury (DTTJ) - multiple categories and articles.
8. Comprehensive opinion site, with well-organized trial transcripts. Unposted.com
Another way to get all the "case" info is to consult the San Diego Union-Tribune (UT) archives. Here you will find complete transcripts of all public trial sessions; hearings on pre-trial Motions; selected video clips; photos and maps; UT articles on the case throughout most of the year 2002, and through the final sentencing in January 2003.
The only common factor in all the above reports is that they mix the two cases together. Eventually, you will see something different here. Why? It is my opinion that if the Danielle Disappearance case had
been solved correctly, there would have been no "Westerfield case."
The REAL WESTERFIELD CASE SUMMARY:
At the beginning of this story, there was no "taking" of the victim. Westerfield was never in the victim's house. There was NO EVIDENCE of that.
At the end of the story there was no "dumping" the body at Dehesa, the location where it was found. There is NO EVIDENCE to support that. David Westerfield was never there.
Later, entomologists proved that he could not have been there when the body was placed there and first exposed to insect activity.
If he doesn't obtain the victim at the beginning, and he doesn't get rid of the victim at the end of the story, then how can anyone reasonably say that he "had her" in the middle of the story?
It so happens that this necessary Beginning - this "taking" - and the End - the carrying or "transport" - are the required basic legal elements of any Kidnapping. There was no evidence whatsoever to support the conviction of David Westerfield on this charge.
California Penal Code 207. (a) Every person who forcibly, or by any other means of instilling fear, steals or takes
... any person in this state, and carries the person .... into another part of the same county, is guilty of kidnapping.
(The original text was slightly different back in 2002; above is the 2013 version of the law).
It is ridiculous to argue about the manner of the taking, the 'consent' or the 'force' used, or even the purpose or 'motive,' for an event that never occurred. The "taking" part did not happen.
There is clearly something wrong with the DA's "evidence." It is in direct conflict with known facts.
All that he presented was the "middle" of a story that had no beginning and no end supported by any evidence whatsoever. (It was a Ferry Tale, lost in fog, under that bridge pictured above).
The four main bits of evidence presented (besides being simply weak) are in direct conflict with known and established facts. The evidence tries to place the victim in a place where she COULD NOT have been on Feb. 2-3-4. "Something wrong," as Dr. Henry Lee would say.
Some evidence was probably identified correctly, but it had no weight; it proved nothing.
Some was probably mis-identified; the "finger" print was literally a stretch; and
Some was either misinterpreted or the result of lab error, which would have to include --
-- gasp! could it happen? - blood stain(s) being planted by overzealous investigators.
There is "something wrong" with those bits of evidence. The ever-popular "DNA" gives us only identity, which was not challenged here. Scroll down on the Blog page to: "DNA isn't Everything"
The DA should never have accepted this case without better evidence. Even the late Geo. Woody Clarke seemed to have had his doubts about it (see LEQ 2002, p 9-15). Note that Clarke's article sticks to forensic investigation and barely mentions the horrific and highly prejudicial porn-rape video display allowed
into the case by this judge. (It is mentioned in post-trial comments as one of the first reasons for the conviction.)
But the DA chose to introduce the rape-videos and then resort to outright propaganda (i.e. fiction and lurid fantasy) and undisguised appeals to juror's emotions, rather than to calm reason and following of the law, in order to cover for the weakness of his evidence.
He had only the "middle" of a story which did not match the facts at the beginning or at the end. And his "evidence" was in conflict with those basic facts which represented the elements of the crime.
I used to think that Westerfield was simply "Not Guilty, for legal reasons - because the DA failed to prove the case and the jury somehow missed the enormous amount of Reasonable Doubt that was staring them in the face. A retrial would eventually repair the damage, I thought. Many people, including attorneys, continue to believe this. That is, that he might have done the crime but he was technically not guilty because the case was not proven properly by the DA. (Like OJ). I used to distrust people who said they "knew" he was actually, really innocent - just as others claimed they "knew" he was guilty. No one could "know" such things except Westerfield and the perpetrator! But, after over ten years of studying and discussing this case with others, I conclude that Westerfield has |
Unraveling the
Difficult Knot |
what they call actual innocence: He had absolutely nothing to do with Danielle's disappearance; he knew nothing about what happened. He simply wasn't there. He had the simple misfortune of being out of the neighborhood at a time when something bad happened. The community and the nation just wanted to find the missing child alive. The police wanted a kidnapper.
But he wasn't there at the beginning of her story (in her home) and he wasn't there at the end (at Dehesa, the recovery site). So how could he possibly, reasonably, logically have possession of the victim in the middle of the story?
It was unreasonable, illogical to see him as the "kidnapper." It defied all common sense. Both the police and the DA should have recognized this big problem with their theory. Yet they continued to collect and investigate what they could get on him. They put lots of stuff in "evidence" bags - in hopes all this laundry lint would make something "evident."
But there's something wrong with the DA's evidence. It's a bridge to nowhere, from nowhere. It floats on air; it wallows in the fog of fantasy; it's impossible.
There had to be other explanations for that so-called "evidence." (Defense showed us at least one, and there are other equally reasonable alternatives.)
Westerfield did not meet the elements of a kidnap: the "taking" and the "transporting," and in addition, dumping the body at Dehesa. Dr. Blackbourne, the Medical Examiner said the person who placed the body did the crime. Westerfield was clearly not that person. He did none of the acts alleged; there was not an ounce of evidence to support the elements of the crime charged.
How then could they convict him? On wrong evidence or on NO evidence. But they did.
How could this miscarriage of justice have happened to an ordinary citizen, minding his
own business, having no criminal history and not a threat to anyone? His kindnesses to friends and family are forgotten, his life's work and reputation, destroyed. He was never the "sadistic pedophile" portrayed in the media. He did nothing to deserve this.
Is it a conspiracy? No, just a series of errors piling up. Knots were tied into the fabric of truth and justice, one by one. Let's count them:
First, some unknown event happened to Danielle. She went missing.
The mother called 911 to report a missing child, while the father drove around nearby.
Police hauled out their mighty Polygraph, applied it mostly to the wrong people, got
the wrong answers, and let the machine make all the important decisions.
The earliest Police errors over the credibility of witnesses misled the
Judge who signed the warrants, allowing police to collect flotsam and jetsam into "evidence bags."
What they collected was finally examined, analyzed and deemed acceptable by the
District Attorney, who taught his version of the story to
the Press and media, and everyone saw it in print for 4-5 full months.
The Prosecutors assigned by the DA then repeated his propaganda to the
Jury, with the full blessings of the
Judge, who pronounced the final sentence nearly a year later. This travesty became the
Mistrial of the Century, never declared by the Judge, who allowed it to happen.
This jury ignored and threw out: basic unavoidable facts, elements of the crime, rules of evidence, the defense arguments, the science of the entomologists, admonitions and jury instructions. They were badgered, bamboozled and abused. The judge drove them to tears and the video-rapes drove them crazy. They ran amok. They became unreasonable. This case was a mistrial just waiting to happen.
The judge did not protect the jurors or the defendant from any of this nonsense. He topped it off by failing to sequester the jury when they needed protection most, from the public pressure to convict.
The resulting "jury error," their failure to weigh all the evidence correctly under the law, and their failure to follow instructions, produced a wrongful conviction and sent Westerfield to prison to await execution.
This series of knots is now being unraveled at the Appellate level. After all the Briefs and their responses have been filed, the California Supreme Court will next hear the case in Oral Arguments.
The seven Supreme Court justices are a different "jury" entirely. Perhaps they'll get it right.
It ain't over till it's over.
But he wasn't there at the beginning of her story (in her home) and he wasn't there at the end (at Dehesa, the recovery site). So how could he possibly, reasonably, logically have possession of the victim in the middle of the story?
It was unreasonable, illogical to see him as the "kidnapper." It defied all common sense. Both the police and the DA should have recognized this big problem with their theory. Yet they continued to collect and investigate what they could get on him. They put lots of stuff in "evidence" bags - in hopes all this laundry lint would make something "evident."
But there's something wrong with the DA's evidence. It's a bridge to nowhere, from nowhere. It floats on air; it wallows in the fog of fantasy; it's impossible.
There had to be other explanations for that so-called "evidence." (Defense showed us at least one, and there are other equally reasonable alternatives.)
Westerfield did not meet the elements of a kidnap: the "taking" and the "transporting," and in addition, dumping the body at Dehesa. Dr. Blackbourne, the Medical Examiner said the person who placed the body did the crime. Westerfield was clearly not that person. He did none of the acts alleged; there was not an ounce of evidence to support the elements of the crime charged.
How then could they convict him? On wrong evidence or on NO evidence. But they did.
How could this miscarriage of justice have happened to an ordinary citizen, minding his
own business, having no criminal history and not a threat to anyone? His kindnesses to friends and family are forgotten, his life's work and reputation, destroyed. He was never the "sadistic pedophile" portrayed in the media. He did nothing to deserve this.
Is it a conspiracy? No, just a series of errors piling up. Knots were tied into the fabric of truth and justice, one by one. Let's count them:
First, some unknown event happened to Danielle. She went missing.
The mother called 911 to report a missing child, while the father drove around nearby.
Police hauled out their mighty Polygraph, applied it mostly to the wrong people, got
the wrong answers, and let the machine make all the important decisions.
The earliest Police errors over the credibility of witnesses misled the
Judge who signed the warrants, allowing police to collect flotsam and jetsam into "evidence bags."
What they collected was finally examined, analyzed and deemed acceptable by the
District Attorney, who taught his version of the story to
the Press and media, and everyone saw it in print for 4-5 full months.
The Prosecutors assigned by the DA then repeated his propaganda to the
Jury, with the full blessings of the
Judge, who pronounced the final sentence nearly a year later. This travesty became the
Mistrial of the Century, never declared by the Judge, who allowed it to happen.
This jury ignored and threw out: basic unavoidable facts, elements of the crime, rules of evidence, the defense arguments, the science of the entomologists, admonitions and jury instructions. They were badgered, bamboozled and abused. The judge drove them to tears and the video-rapes drove them crazy. They ran amok. They became unreasonable. This case was a mistrial just waiting to happen.
The judge did not protect the jurors or the defendant from any of this nonsense. He topped it off by failing to sequester the jury when they needed protection most, from the public pressure to convict.
The resulting "jury error," their failure to weigh all the evidence correctly under the law, and their failure to follow instructions, produced a wrongful conviction and sent Westerfield to prison to await execution.
This series of knots is now being unraveled at the Appellate level. After all the Briefs and their responses have been filed, the California Supreme Court will next hear the case in Oral Arguments.
The seven Supreme Court justices are a different "jury" entirely. Perhaps they'll get it right.
It ain't over till it's over.
The Mysterious Disappearance of Danielle van Dam
SD Police prematurely chose Westerfield as their "solution" to the mystery of Danielle's disappearance. This was indeed, as many have said, a rush to
judgment on their part.
Police were responding to intense community pressure to find the missing child and "solve the crime" --which they had somehow concluded (against all reason) must have been an abduction.
Someone had supposedly entered the home, identified the child's room in the dark (one of four closed doors), carried a heavy struggling victim down the stairs through the house and
out the door, got past an adult male, the child's father, the girl's two brothers, and a large family dog --- all without leaving a trace of physical evidence or being noticed by any living being!
Police asked an FBI profiler for help. He found this an unlikely feat for any outsider; said it had to be an insider. Many others agreed: it had to be someone who knew his way around; not a stranger.
The original 911 call from Brenda van Dam was for a missing child. On Saturday February 2, 2002, the posters went up, volunteers searched the nearby canyons, and the Missing Child news went
nationwide. Our hearts always sink when we hear of yet another of these sudden disappearances.
But police wanted a "kidnapper," under unbelievable circumstances. Error number one, in my
opinion.
SDPD Robbery Division was in charge of the first 48 hours, perhaps wasting precious minutes looking at the wrong things. Homicide did not have the case at first. Would the results have been different under a
full parallel investigation from the beginning (as other police agencies have done successfully)?
One begins to suspect that SDPD was also utilizing the polygraph improperly: to make human decisions rather than simply assist in interrogating witnesses. The ever-unreliable polygraph, rightly or wrongly, also played a central and trusted role in the search warrants, legal proceedings signed by a judge.
After that, the rest is history. Westerfield's upscale home, vehicles, computers, lifestyle and
eventually his very life all became subject to scrutiny and invasion by the State of California.
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judgment on their part.
Police were responding to intense community pressure to find the missing child and "solve the crime" --which they had somehow concluded (against all reason) must have been an abduction.
Someone had supposedly entered the home, identified the child's room in the dark (one of four closed doors), carried a heavy struggling victim down the stairs through the house and
out the door, got past an adult male, the child's father, the girl's two brothers, and a large family dog --- all without leaving a trace of physical evidence or being noticed by any living being!
Police asked an FBI profiler for help. He found this an unlikely feat for any outsider; said it had to be an insider. Many others agreed: it had to be someone who knew his way around; not a stranger.
The original 911 call from Brenda van Dam was for a missing child. On Saturday February 2, 2002, the posters went up, volunteers searched the nearby canyons, and the Missing Child news went
nationwide. Our hearts always sink when we hear of yet another of these sudden disappearances.
But police wanted a "kidnapper," under unbelievable circumstances. Error number one, in my
opinion.
SDPD Robbery Division was in charge of the first 48 hours, perhaps wasting precious minutes looking at the wrong things. Homicide did not have the case at first. Would the results have been different under a
full parallel investigation from the beginning (as other police agencies have done successfully)?
One begins to suspect that SDPD was also utilizing the polygraph improperly: to make human decisions rather than simply assist in interrogating witnesses. The ever-unreliable polygraph, rightly or wrongly, also played a central and trusted role in the search warrants, legal proceedings signed by a judge.
After that, the rest is history. Westerfield's upscale home, vehicles, computers, lifestyle and
eventually his very life all became subject to scrutiny and invasion by the State of California.
---------------------------------------------------------------------------------------------------------------------------------
James Allen Selby Confession
Those who believe Westerfield is innocent continue to see the Danielle case as an unsolved mystery. If Westerfield didn't do it, then who did? The true perpetrator may still be out there. According to LE, hundreds of items of forensic evidence remained unanalyzed in the SDPD labs and evidence rooms at the end of the trial. Only about one third of SDPD'S latent fingerprint lifts were ever identified. There remained many "unknowns." There was simply no time to examine everything. An "unknown" DNA sample from the crime scene (Danielle's bedroom) was analyzed and profiled. It was compared to van Dam family members and to Westerfield. It did not match any of these "knowns." Westerfield was clearly excluded. But, as far as we can tell, our D.A. never submitted this "unknown" DNA profile to the FBI, to be compared against the DNA profiles stored in CODIS. James Selby's DNA profile was already there in 2002. Read more... |
David Westerfield's Arrest and Trial: a Timeline
February 2002
This section briefly revisits the original criminal trial of David Westerfield, charged with the kidnap-murder of Danielle van Dam, a 7-year-old girl who went missing from her home in Sabre Springs, San Diego, California, around February 1, 2002. Danielle's father was the babysitter for her and her two brothers while the mother attended a girls' night out party with some friends. The child was discovered and reported missing the following morning.
An intense local search began almost immediately. Within 24 hours the upscale neighborhood was inundated with traffic and news media. After 48 hours SDPD Robbery Division concluded it was an abduction.
Meanwhile, on February 2 and 3 the van Dams' neighbor, David Westerfield, had retrieved his motor home and taken a meandering trip on the first warm days after an unseasonable cold snap. (Some neighborhoods had recently experienced something like "snow," which is very unusual in these parts.) He was absent from the neighborhood on Saturday and Sunday (Superbowl weekend) when police canvassed nearby homes with search dogs, looking for the missing child.
By Monday, February 4, police had upgraded Danielle's disappearance to an "abduction." They were now looking for a kidnapper in addition to the missing child. They became suspicious of Westerfield, one of a few people they had not been able to contact during the search over the weekend. They became transfixed on his bus-sized motor home as a possible "kidnap" vehicle.
They searched Westerfield's home and property for clues of the missing Danielle. They interrogated him for hours on end without benefit of counsel. They polygraphed him and obtained search warrants for his home, computers, and his vehicles. They impounded his motor home and searched through his belongings with search dogs. They sampled stains on his carpets, clothing and laundry, generating bags and boxes of "evidence." They (and the media) surveilled his every move for nearly a month.
On February 22 they arrested their suspect, charging him with kidnapping, burglary, and possession of child pornography.
On Monday February 25 (ironically, the suspect's birthday), the District Attorney added a first degree murder charge, even though the search was ongoing and no body had been found.
Westerfield was arraigned on Tuesday, February 26. Earlier, he had hired Steven E. Feldman as his attorney.
On Wednesday, February 27, volunteer searchers found the body of a child near Dehesa Road in rural East County. She was soon identified as the missing Danielle van Dam.
Note about early 2002 sources
The brief Timeline section above is compiled almost exclusively from news reports rather than trial documents, as all this occurred several months before the trial. As such, it represents "what we knew and when we knew it."
And that includes what virtually all the prospective jurors also knew -- at least of what the police, DA and prosecutors wanted us to know. There was no "defense" information at this time; the prosecutors clearly had a running start.
The San Diego Union-Tribune (UT) keeps a huge archive of not only its own articles on the Danielle disappearance and the Westerfield trial, but also a full complement of trial transcripts and motions and other documents. Trial transcripts, meticulously organized, are also found at Unposted.com
Preliminary Hearing, March 15, 2002
This "probable cause" hearing was held and televised quickly, within the required 10 days of Westerfield's arraignment.
Based on 2-4 barely credible pieces of "evidence" found, on his possessions not on his person, he was accused and tried for some of the worst crimes imaginable. We all heard about these 4 items for months before we heard any challenges to their probative value.(It turned out that they had very little. All were easily explained away. But it was too late for this jury.)
Media focus and community passions, formerly concerned with the search, now zeroed in on Westerfield's possible guilt. People now began to vilify him as a pedophilic monster and child murderer. Many acted as if the trial itself were over and that nothing further was necessary. (At this point I published a little piece called American Justice Baseball 101, since so many seemed confused about the procedures and events of the justice system.)
Interestingly, the Prosecution, through radio, TV and the print media, had already taught the public so many facts, stories and rumors that people were speculating outcomes well before the trial and, more importantly, before any Defense case had even been presented and considered.
I call DA Pfingst's propaganda the Morbid Mythology. Its sensational headlines -- "He snatched her from her bed," and "He molested her and killed her," and "He dumped her like trash along the road" --dominated people's emotions before the trial, during the trial and after the trial. Dusek recited this monologue flawlessly in his closing argument.
This Morbid Mythology continues today, ten years later, unchanged in the minds of many. (One can still see the flames leaping in Comments sections of recent 2012 news articles.) The derisive and inflammatory Morbid Myth can clearly be seen in the Respondent's Brief filed by the AG in October 2012 -- all straight from the Nancy Grace School of Rhetoric.
For many, Westerfield was presumed guilty from the time of his arrest..
For others, the Prelim sealed his fate for good. The Preliminary information worked two ways: in the court of public opinion (containing ALL our prospective jurors in this case!) roughly half had already decided on a Guilty verdict.
To the other half, the DA's "evidence" looked sorely insufficient to many of us, even at that early date.
Even lacking any argument from the defense, it appeared to many that the DA had painted himself into a corner with an impossible theory. The existing evidence ultimately showed that
(1) Westerfield had never been in the van Dams' home,
(2) he had driven his RV almost everywhere except Dehesa Road (where the body was found), and
(3) there was in this case, unlike any "stranger abduction," clear evidence of prior innocent contact between the parties.
Most of the seemingly "incriminating" evidence printed in the headlines was seriously neutralized by that innocent prior contact. But most news sources failed to mention that part!
The Criminal Trial: Guilt Phase, May-August, 2002
By the end of May 2002, jury selection was completed.
Virtually all the jurors knew details of the case and many had discussed them with friends, family and co-workers. (A change of venue would have been useless due to the widespread national coverage of the case.)
The nationally televised trial consumed most of June, July, and August. (See UT transcripts for dates and witnesses.)
Around July 4, 2002, San Diegans began to hear the very first Defense presentations, witnesses and arguments.
The San Diego community had gone five full months without a peep from the Defense team. (Many San Diegans didn't really care to hear from them; their minds were made up.)
A new science called Forensic Entomology came in to challenge that "old" tradition, DNA. Unlike DNA, insect studies can tell "when," an important time factor in this case. Insects confirmed what we already knew: Westerfield could not have placed the body where it was found.
Here was Reasonable Doubt spelled in capital letters. Somehow, the jury managed to disregard this important scientific evidence entirely.
Verdict: Guilty of felony kidnap/murder and misdemeanor possession of illegal pornography
On August 21, 2002, the jury returned their verdict in the guilt phase of the trial: Guilty on all counts. A felony kidnap-murder is eligible for the death penalty in California. The trial then went into its Penalty phase. In early September 2002, the jury voted for death.
The final sentencing was delayed until January 3, 2003, with Judge Mudd confirming both the jury's view of the evidence and their death verdict. (See Verdicts page for our reactions.)
February 2013. They say that "Time erases memory." Not so in San Diego, not in regard to Mr. Westerfield.
David Westerfield has been at San Quentin prison since 2003. His kindness to others, his life's work, has all been forgotten. He was wrongfully convicted, his civil rights removed. He has been socially disgraced, defamed and vilified by his community. I for one do not enjoy being a part of all that.
This section briefly revisits the original criminal trial of David Westerfield, charged with the kidnap-murder of Danielle van Dam, a 7-year-old girl who went missing from her home in Sabre Springs, San Diego, California, around February 1, 2002. Danielle's father was the babysitter for her and her two brothers while the mother attended a girls' night out party with some friends. The child was discovered and reported missing the following morning.
An intense local search began almost immediately. Within 24 hours the upscale neighborhood was inundated with traffic and news media. After 48 hours SDPD Robbery Division concluded it was an abduction.
Meanwhile, on February 2 and 3 the van Dams' neighbor, David Westerfield, had retrieved his motor home and taken a meandering trip on the first warm days after an unseasonable cold snap. (Some neighborhoods had recently experienced something like "snow," which is very unusual in these parts.) He was absent from the neighborhood on Saturday and Sunday (Superbowl weekend) when police canvassed nearby homes with search dogs, looking for the missing child.
By Monday, February 4, police had upgraded Danielle's disappearance to an "abduction." They were now looking for a kidnapper in addition to the missing child. They became suspicious of Westerfield, one of a few people they had not been able to contact during the search over the weekend. They became transfixed on his bus-sized motor home as a possible "kidnap" vehicle.
They searched Westerfield's home and property for clues of the missing Danielle. They interrogated him for hours on end without benefit of counsel. They polygraphed him and obtained search warrants for his home, computers, and his vehicles. They impounded his motor home and searched through his belongings with search dogs. They sampled stains on his carpets, clothing and laundry, generating bags and boxes of "evidence." They (and the media) surveilled his every move for nearly a month.
On February 22 they arrested their suspect, charging him with kidnapping, burglary, and possession of child pornography.
On Monday February 25 (ironically, the suspect's birthday), the District Attorney added a first degree murder charge, even though the search was ongoing and no body had been found.
Westerfield was arraigned on Tuesday, February 26. Earlier, he had hired Steven E. Feldman as his attorney.
On Wednesday, February 27, volunteer searchers found the body of a child near Dehesa Road in rural East County. She was soon identified as the missing Danielle van Dam.
Note about early 2002 sources
The brief Timeline section above is compiled almost exclusively from news reports rather than trial documents, as all this occurred several months before the trial. As such, it represents "what we knew and when we knew it."
And that includes what virtually all the prospective jurors also knew -- at least of what the police, DA and prosecutors wanted us to know. There was no "defense" information at this time; the prosecutors clearly had a running start.
The San Diego Union-Tribune (UT) keeps a huge archive of not only its own articles on the Danielle disappearance and the Westerfield trial, but also a full complement of trial transcripts and motions and other documents. Trial transcripts, meticulously organized, are also found at Unposted.com
Preliminary Hearing, March 15, 2002
This "probable cause" hearing was held and televised quickly, within the required 10 days of Westerfield's arraignment.
Based on 2-4 barely credible pieces of "evidence" found, on his possessions not on his person, he was accused and tried for some of the worst crimes imaginable. We all heard about these 4 items for months before we heard any challenges to their probative value.(It turned out that they had very little. All were easily explained away. But it was too late for this jury.)
Media focus and community passions, formerly concerned with the search, now zeroed in on Westerfield's possible guilt. People now began to vilify him as a pedophilic monster and child murderer. Many acted as if the trial itself were over and that nothing further was necessary. (At this point I published a little piece called American Justice Baseball 101, since so many seemed confused about the procedures and events of the justice system.)
Interestingly, the Prosecution, through radio, TV and the print media, had already taught the public so many facts, stories and rumors that people were speculating outcomes well before the trial and, more importantly, before any Defense case had even been presented and considered.
I call DA Pfingst's propaganda the Morbid Mythology. Its sensational headlines -- "He snatched her from her bed," and "He molested her and killed her," and "He dumped her like trash along the road" --dominated people's emotions before the trial, during the trial and after the trial. Dusek recited this monologue flawlessly in his closing argument.
This Morbid Mythology continues today, ten years later, unchanged in the minds of many. (One can still see the flames leaping in Comments sections of recent 2012 news articles.) The derisive and inflammatory Morbid Myth can clearly be seen in the Respondent's Brief filed by the AG in October 2012 -- all straight from the Nancy Grace School of Rhetoric.
For many, Westerfield was presumed guilty from the time of his arrest..
For others, the Prelim sealed his fate for good. The Preliminary information worked two ways: in the court of public opinion (containing ALL our prospective jurors in this case!) roughly half had already decided on a Guilty verdict.
To the other half, the DA's "evidence" looked sorely insufficient to many of us, even at that early date.
Even lacking any argument from the defense, it appeared to many that the DA had painted himself into a corner with an impossible theory. The existing evidence ultimately showed that
(1) Westerfield had never been in the van Dams' home,
(2) he had driven his RV almost everywhere except Dehesa Road (where the body was found), and
(3) there was in this case, unlike any "stranger abduction," clear evidence of prior innocent contact between the parties.
Most of the seemingly "incriminating" evidence printed in the headlines was seriously neutralized by that innocent prior contact. But most news sources failed to mention that part!
The Criminal Trial: Guilt Phase, May-August, 2002
By the end of May 2002, jury selection was completed.
Virtually all the jurors knew details of the case and many had discussed them with friends, family and co-workers. (A change of venue would have been useless due to the widespread national coverage of the case.)
The nationally televised trial consumed most of June, July, and August. (See UT transcripts for dates and witnesses.)
Around July 4, 2002, San Diegans began to hear the very first Defense presentations, witnesses and arguments.
The San Diego community had gone five full months without a peep from the Defense team. (Many San Diegans didn't really care to hear from them; their minds were made up.)
A new science called Forensic Entomology came in to challenge that "old" tradition, DNA. Unlike DNA, insect studies can tell "when," an important time factor in this case. Insects confirmed what we already knew: Westerfield could not have placed the body where it was found.
Here was Reasonable Doubt spelled in capital letters. Somehow, the jury managed to disregard this important scientific evidence entirely.
Verdict: Guilty of felony kidnap/murder and misdemeanor possession of illegal pornography
On August 21, 2002, the jury returned their verdict in the guilt phase of the trial: Guilty on all counts. A felony kidnap-murder is eligible for the death penalty in California. The trial then went into its Penalty phase. In early September 2002, the jury voted for death.
The final sentencing was delayed until January 3, 2003, with Judge Mudd confirming both the jury's view of the evidence and their death verdict. (See Verdicts page for our reactions.)
February 2013. They say that "Time erases memory." Not so in San Diego, not in regard to Mr. Westerfield.
David Westerfield has been at San Quentin prison since 2003. His kindness to others, his life's work, has all been forgotten. He was wrongfully convicted, his civil rights removed. He has been socially disgraced, defamed and vilified by his community. I for one do not enjoy being a part of all that.