David Alan Westerfield - California Death Row

[Heidi]

PEOPLE v. WESTERFIELD (DAVID ALAN)
Case: S112691, Supreme Court of California

Date (YYYY-MM-DD): 2012-12-13
Event Description: Extension of time granted
Notes:
Good cause appearing, and based upon counsel Mark David Greenberg's representation that he anticipates filing the appellant's reply brief by June 2013, counsel's request for an extension of time in which to file that brief is granted to February 8, 2013. After that date, only two further extensions totaling about 120 additional days are contemplated.

An application to file an overlength brief must be served and filed no later than 60 days before the anticipated filing date. (See Cal. Rules of Court, rule 8.631(d)(1)(A)(ii) & (B)(ii).)

[Armchair Expert]

Westerfield was a real piece of garbage! It was big news here in Southern California. They even tried to blame the parents and drag them through the mud. I find it hard to believe that at some point in his fifties he "suddenly" committed such a horrific crime. The press said he made regular jaunts to Tijuana in his murder mobile (motor home). I wouldn't be at all surprised if there were several missing children south of the border over the years.

I have followed this case, but this is the first I’ve heard that he made regular jaunts to Tijuana, whether in his motor home or anything else. Furthermore, the only mention of Tijuana was a tip from a woman who said she saw Danielle there (reported in the San Diego Union-Tribune, February 23, 2002). Just three days earlier, that same newspaper had listed girls in the county who had vanished, but Tijuana was only mentioned in one of those cases. But before you blame Westerfield for that one, it was in 1960, and I seriously doubt that a small child (as he was at the time) was driving a motor home.

In addition, it was probably only in 1993 that he bought his first motor home (that’s the trial testimony by a friend of his on July 8, 2002). And I find it almost as hard to believe that at some point in his early forties (as he was at that time) he suddenly started committing such horrific crimes. In any case, none of the above-mentioned girls went missing after that date. And anyway the police were unable to link him to any of those cases.

I’m not aware of the parents being blamed for the crime, but it certainly was one aspect of their lifestyle - smoking an illegal substance in their garage - that gave the perpetrator easy access to their daughter. That’s why the side garage door was unlocked, and the lock on the house garage door was reversed (San Diego Union-Tribune, August 6, 2002).

Nearly 30 Reasons for Appeal: Attorneys

Van Dam family attorney Spencer Busby called the appeal a legal process that will not lead to the overturning of the death penalty conviction.

"The DNA evidence was overwhelming," Busby said about the trial.

There was one small bloodstain containing Danielle’s DNA on Westerfield’s motor home jacket, and one drop containing her DNA on his motor home carpet (Evidence items 94D-2 and 84, respectively). But as they were neighbors, and his motor home was often parked in the streets outside their houses, apparently often unlocked, she could have sneaked into that interesting vehicle at an earlier date, leaving behind that evidence. Supporting this possibility are facts such as that a child could have done so without being seen, and the failure of the search dogs to give an alert (so they couldn’t detect her scent there, implying she couldn’t have been there recently).

There was no blood in his house, where the first assault(s) supposedly took place (between about 3:30 and 7:30 Saturday morning).

That’s very little blood for supposed repeated sexual assaults which could have lasted up to two days (between early Saturday morning and early Monday morning), and a murder.

There’s also reason to doubt both those blood stains. Westerfield handed in his jacket to his dry-cleaners on his way home on Monday morning, but they didn’t see that stain, nor could it be seen on the photo the police took of the jacket after they seized it; and the police didn’t photograph or measure the drop on the carpet.

There were also some of Danielle’s hairs and some of her dog’s hairs (identified by mostly mitochondrial DNA), in both his house and motor home. But these could have been deposited in his house when she and her family visited him just days before the crimes, and then been transferred from his house to his motor home. Support for that possibility is the fact that the number of hairs in his motor home was much lower than the number in his house.

There was unidentified DNA in two bloodstains on the very bed Danielle was kidnapped from (Evidence items 8-2 and 10-7A). Westerfield was excluded as the source. And there was an unidentified hair under her body (Item 169). Again, Westerfield was excluded. True, the blood on her bed might have come from a friend of hers. But it might have been from her abductor. So the police should have tried to identify the source by comparing it against a DNA database, but they didn’t. And the hair under her body might have come from one of the police processing the body. But it might have been from her killer. Again, the police should have tried to identify the source.

The bottom line is that the DNA evidence fell far short of proving guilt.

The trial largely focused on forensic evidence [...] A single orange fiber caught in a tiny choker necklace found on Danielle’s body.

http://www.utsandiego.com/news/2012/...page=1#article

This was Evidence Item number 120.

A minor point: the fiber was tangled in her hair, it’s that hair which was caught in her necklace.

Not so minor is that the prosecution didn’t produce a photo showing the fiber while still in her hair. Most people would take the criminalist’s word for it, but when a man’s life is at stake a higher standard of proof is required.

And then the criminalist failed to produce that fiber in court when the defense attorney asked her to do so, and the judge didn’t want this discussed in front of the jury.

It’s also a bit disturbing that the fiber in her hair was described as dull orange, whereas those in Westerfield’s environment which were said to match were described as bright or very bright - the criminalist backtracked when this discrepancy was pointed out to her under cross-examination.

Another more serious point is that the source of the fiber in her hair was never identified. It was assumed to come from something of Westerfield’s, presumably because there were so many similar fibers in his house: maybe more than 200. But there are problems with that ...

The fibers with her body (there were many other types as well) were said to have come from the last environment she was in, but the last environment was supposedly his motor home (for maybe nearly two days), and there weren’t any matching orange fibers reported in that vehicle.

Because there were so many similar fibers in his house, only some were tested: many weren’t even collected, and apparently only one was tested using the most powerful instrument available to them, the microspectrophotometer, which they had to go to Sacramento to use. So all the others were only partially tested. Westerfield had an afghan, the fibers from which were so similar to the one in her hair, that the criminalist spent days unsuccessfully trying to prove that was the source. Two of the 22 similar fibers in his SUV were determined by further testing not to match (Evidence Item 35). A Court TV photo of a microscope slide (Court Exhibit 134) shows two orange fibers which are clearly different: one is narrower and brighter than the other. So the number which actually matched might be much less than 200.

No similar orange fibers were found in Danielle’s own home, but this doesn’t mean much because - inexcusably - only a few items from there were examined. So it’s possible that the source of that incriminating fiber in Danielle’s hair was actually in her own home. Which would eliminate its value as evidence against Westerfield. It wasn’t even established what clothes the van Dams were wearing when they visited him earlier that week. Maybe one of them wore an old orange sweater which shed many of its fibers in his house.

But even if those orange fibers came from something of Westerfield’s, with so many in his house, several might have got onto Danielle’s clothes or hair during that visit, one of which was still in her hair when she was kidnapped. There was no testimony that she bathed or showered or washed her hair in the maybe two or three days after that visit. And the detailed testimony of the family’s Friday evening activities effectively excludes the possibility that she did so then. So that fiber’s evidentiary value is weak.

[Jeffects]

I’m not aware of the parents being blamed for the crime, but it certainly was one aspect of their lifestyle - smoking an illegal substance in their garage - that gave the perpetrator easy access to their daughter. That’s why the side garage door was unlocked, and the lock on the house garage door was reversed (San Diego Union-Tribune, August 6, 2002).

Since I've only now seen your snarky reply, I will respond, so that perhaps you can become even more of an expert. As far as the parents being besmirched, I wasn't referring to marijuana use. I was referring to their sex life being used by the defense to try and clear the murderer. You must have forgotten that front page news.


By Alex Roth
UNION-TRIBUNE STAFF WRITER

June 7, 2002

Danielle van Dam's mother wept about her daughter's death, glared at the man charged with killing the girl and fielded questions about her unconventional sex life during a day of emotional testimony yesterday.

Her demeanor shifted dramatically under questioning by Westerfield's attorney, Steven Feldman, who asked her a series of questions about her sex life.

Westerfield's attorneys have argued that the van Dams were irresponsible parents and that their daughter could have been killed by any number of people the couple attracted into their lives.

A day after he grilled Damon van Dam about the couple's sexual and marijuana habits, Feldman did the same with Brenda van Dam, asking whether she had sex with her friends Barbara Easton and Denise Kemal and their husbands.

She acknowledged that she had. She later admitted that she and her husband had sex with Kemal and Kemal's husband, Andy, during a Halloween party in October 2000.

Also:


Update: May 15
The judge ruled today that some of the pornography on David Westerfield's computer will be allowed as evidence in the trial, and that the jury will only hear limited testimony about the Damon and Branda van Dam's sexual lifestyles (as if anybody living in the San Diego area hasn't already read about it in somewhat-graphic detail)

http://www.freerepublic.com/focus/news/692060/posts

As far as trips to Mexico:


Update: February 21
Based on several tips, investigators have expanded their search area into Mexico (Tijuana is less than 20 miles from San Diego)


Several tips to investigators is substantially different from one woman claiming to see Danielle in Tijuana.

I clearly recall references to the murderer making trips to Mexico, I suppose I could research more for you, and then we could both be self proclaimed "Experts"

3 posts, all about defending this murderer. Pfft.

[Helen]

Here is a link with a lot of info on this case; including transcripts, warrants and media coverage. It's a good read, I had a brief look. Thought you might like this Jeffects

http://legacy.utsandiego.com/news/metro/danielle/

[Jeffects]

Thanks Helen. I gave it a quick peruse, and will look forward to getting into it in depth later.

I believe that we are on the verge of becoming true "Armchair Experts". Unlike those who post here, with some twisted agenda only to defend murderers that grasp a sleeping, innocent child from her bed, rape, torture her for hours and days, and then murder her.

Then try to blame it on her shattered, and grieving parents.

[Helen]

I agree it is despicable the way victims' families are often raked over the coals. What I don't get is how certain members seem to pick the worst offenders, without a scrap of evidence to bolster their case that the convicted person is innocent. In this case, it may have been circumstantial but the evidence that was there was overwhelming.

[Jeffects]

I agree Helen, but isn't almost everything circumstantial? Very rarely do we ever have CCTV or video-taped evidence of a crime/murder. I have never recalled any evidence like that in any crime scene, other than a store robbery or something similar.

If it wasn't for circumstantial evidence, or in the rare case, witnesses, I can't think of any serial killer, or a killer that put any thought beforehand into their "perfect" crime that would have been convicted. Spouses, kids, etc.

[Richard86]

One of my least favourite word crimes is people using the term "circumstantial evidence" to mean "weak evidence". The opposite of circumstantial evidence is direct evidence, not strong evidence.

DNA in a sperm sample found in a rape-murder victim is circumstantial evidence, it could have got there by means other than rape (see what Rodney Reed claims for example) but in reality, most people would consider that such a finding would seal the deal regarding the suspect's guilt. On the other hand, a witness who claims to have seen the murder and can identify the perpetrator would be direct evidence, even though skeptics would dispute such a witness account, such as the cases of Gary Graham, Larry Griffin and Troy Davis, all of whom had direct evidence against them, in the form of direct witnesses, but are nevertheless considered wrongful executions by some antis.

[maybeacomedian]

One of my least favourite word crimes is people using the term "circumstantial evidence" to mean "weak evidence".

I totally agree!

[Armchair Expert]

I agree it is despicable the way victims' families are often raked over the coals. What I don't get is how certain members seem to pick the worst offenders, without a scrap of evidence to bolster their case that the convicted person is innocent. In this case, it may have been circumstantial but the evidence that was there was overwhelming.

If Danielle and Westerfield had been strangers, then the evidence would have been overwhelming, but them being neighbors changes the picture fundamentally, the amount of evidence then becomes small.

The insect evidence proved he was innocent. So did the dog scent evidence. The failure to find any evidence he had been either in Danielle’s home or at the body recovery site, proved he was innocent. The small amount of evidence proved he was innocent. His behavior, such as returning home twice that day, proved he was innocent. The fact that the body was dumped nowhere near his known trip that weekend, proved he was innocent. The third-party evidence - such as the unidentified blood in her bedroom, the unidentified fingerprints in her house, and the unknown hair under her body - may also prove he is innocent.

Just for the record, although the evidence was purely circumstantial, I didn’t use that argument. So thank you for pointing out that there was no direct evidence of his guilt.

Since I've only now seen your snarky reply, I will respond, so that perhaps you can become even more of an expert. As far as the parents being besmirched, I wasn't referring to marijuana use. I was referring to their sex life being used by the defense to try and clear the murderer. You must have forgotten that front page news.


By Alex Roth
UNION-TRIBUNE STAFF WRITER

June 7, 2002

Danielle van Dam's mother wept about her daughter's death, glared at the man charged with killing the girl and fielded questions about her unconventional sex life during a day of emotional testimony yesterday.

Her demeanor shifted dramatically under questioning by Westerfield's attorney, Steven Feldman, who asked her a series of questions about her sex life.

Westerfield's attorneys have argued that the van Dams were irresponsible parents and that their daughter could have been killed by any number of people the couple attracted into their lives.

A day after he grilled Damon van Dam about the couple's sexual and marijuana habits, Feldman did the same with Brenda van Dam, asking whether she had sex with her friends Barbara Easton and Denise Kemal and their husbands.

She acknowledged that she had. She later admitted that she and her husband had sex with Kemal and Kemal's husband, Andy, during a Halloween party in October 2000.

Also:


Update: May 15
The judge ruled today that some of the pornography on David Westerfield's computer will be allowed as evidence in the trial, and that the jury will only hear limited testimony about the Damon and Branda van Dam's sexual lifestyles (as if anybody living in the San Diego area hasn't already read about it in somewhat-graphic detail)

http://www.freerepublic.com/focus/news/692060/posts

As far as trips to Mexico:


Update: February 21
Based on several tips, investigators have expanded their search area into Mexico (Tijuana is less than 20 miles from San Diego)


Several tips to investigators is substantially different from one woman claiming to see Danielle in Tijuana.

I clearly recall references to the murderer making trips to Mexico, I suppose I could research more for you, and then we could both be self proclaimed "Experts"

3 posts, all about defending this murderer. Pfft.

Thank you for clarifying that you were referring to the van Dams’ sex life and not their marijuana use. I would point out, however, that it was the prosecution which first mentioned sex - albeit only very briefly, at Westerfield’s preliminary hearing - and the media were already reporting this aspect, so it would have been negligent for the defense not to have explored it during the trial. The judge permitted these questions, which he wouldn’t have done had they not been relevant.

This was presumed to be a sex crime - though there was no supporting evidence - so the victim’s parents’ sex life was very relevant, given that their sexual activities differed markedly from the norm. They were having sex with other people, including in their own home, and at least some of those people were around their children. And the females were behaving in a sexually provocative way in a public bar where they attracted attention to themselves, and that very night they even invited strangers back to the van Dam home for sex, while their children were present.

The purpose of a trial is to establish if the defendant is guilty, so it is very relevant whether someone else could have been the perpetrator. Which is particularly important in this case where there was only weak evidence of the defendant’s guilt and strong evidence of his innocence.

As far as trips to Mexico, I was replying to your post which explicitly mentioned Tijuana and not Mexico in general. The source you now quote is a discussion forum and the poster does not give their source (a blogger?). Nevertheless, I have spent some time attempting to find the original source, but without success.

An update included in your source implies that perhaps all of the Mexico tips were to Tijuana:

Update: February 23
“There appears to have been no basis to the tips earlier this week that Danielle had been spotted in Tijuana”.

I have established that he had been to Mexico - not surprising seeing how close San Diego is to the border - but have not found any evidence that he was a frequent visitor there.

He was convicted of murder. That doesn’t necessarily make him a murderer; there have been many wrongful convictions - too many.

Thanks Helen. I gave it a quick peruse, and will look forward to getting into it in depth later.

I believe that we are on the verge of becoming true "Armchair Experts". Unlike those who post here, with some twisted agenda only to defend murderers that grasp a sleeping, innocent child from her bed, rape, torture her for hours and days, and then murder her.

Then try to blame it on her shattered, and grieving parents.

You haven’t disputed that the parents made it easy for the kidnapper, no locked doors to impede him, just walk straight in. It might hurt the parents to say so, but this is a lesson for other parents, and pointing it out could prevent other children being kidnapped.

There was no evidence she was raped or that she was tortured.