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Westerfield sentenced to death for kidnap-murder of Danielle van Dam

By Jeff Dillon - Signonsandiego.com

Westerfield convicted, will face death

By Harriet Ryan (Court TV)

August 21, 2002

SAN DIEGO — A jury Wednesday convicted David Westerfield of the kidnapping and murder of his 7-year-old neighbor, Danielle van Dam.

"Oh my God," whispered the victim's mother, Brenda, as a clerk read the verdict to a packed courtroom at 2:15 p.m. ET. The panel of six women and six men had deliberated 40 hours over 10 days prompting speculation they were deadlocked over Westerfield's guilt.

As he did for most of the trial, the 50-year-old engineer shook slightly, stared straight ahead and showed no emotion. The same jury that convicted him of murder, kidnapping and child pornography possession will reconvene Aug. 28 to decide whether to sentence him to death or life in prison without parole.

Westerfield's sister, sitting with her husband in the second row of the gallery, wept behind dark sunglasses. As each juror was polled, she shook her head back and forth in apparent disbelief.

Outside the courthouse, whoops of joy rose up from crowds gathered to watch the proceedings on television monitors. Danielle's disappearance last February, among the first of a string of missing child stories to garner national attention, captivated the city, and Westerfield's trial attracted blanket media coverage in southern California.

The jurors never looked directly at Westerfield as the verdict was announced. One young male juror dabbed at a single tear on his cheek. A female panelist wept into a tissue.

Brenda van Dam, dressed in a suit of lavender, her daughter's favorite color, buried her face in her husband Damon's neck and cried softly. After the last juror was polled, the couple locked in a long embrace.

Over the course of the two-month trial, prosecutors presented a mountain of physical evidence, including fingerprints, blood, hair and fibers, that seemed to link Westerfield to Danielle's abduction and murder.

The second-grader was snatched from her canopy bed the night of Feb. 1. A massive search failed to locate her for nearly a month until volunteers happened across her body in a trash-strewn lot some 25 miles from her home.

Police initially focused on Westerfield, a twice-divorced father of two college students, because his alibi for the weekend she vanished seemed convoluted. He told officers he took a meandering 560-mile solo roadtrip in his recreational vehicle.

Investigators later found strands of Danielle's long blond hair in Westerfield's bed, RV and laundry. There were drops of her blood on the floor of his RV and a stain of it on his jacket. Her palm and fingerprint was discovered above the RV's bed, and distinctive orange and blue fibers from the death scene were also found on Westerfield's property.

Police discovered a stash of violent child pornography on Westerfield's computer, which prosecutors presented in court as a motive for the crime.

San Diego Police Chief David Bejarano credited the quality and thoroughness of the investigation with the conviction.

"Based on the evidence, the person responsible will not be able to harm another child," Bejarano told reporters outside the courthouse Wednesday, noting that the case was one of the biggest in the department's history. Because of a gag order, the lawyers and family members did not comment.

Assailed by a crush of microphones and cameras on his way to lunch, San Diego District Attorney Paul Pfingst said only that he was proud of the prosecution.

"The lawyers did an excellent job, but their job is not done," said Pfingst, referring to the penalty phase.

Scores of people gathered around the media area outside the courthouse when the verdict was announced.

"I was very surprised that it took them so long, but I wasn’t surprised by the verdict," said observer Ed Bowe, who was in town from Michigan for the National Scrabble Championship. Asked why he was convinced of Westerfield's guilt, Bowe replied simply, "Blood."

A block away, San Diegan Anna Mau said she was surprised and grateful for the verdict, which she said showed some resolution to the spate of recent child abductions.

"We have kids in our neighborhood and we all watch them now. If anyone comes around, we're all watching," said Mau.

Revisiting the forensic evidence

During the trial, Westerfield's defense blamed prosecution "spin," contamination by police and even the van Dam family for the allegations against him.

The defense suggested that the van Dams' unconventional lifestyle could have let a killer into their lives. Danielle's parents testified that they smoked marijuana with friends the night of the abduction and had on previous occasions engaged in group sex with other couples.

But with their verdict, jurors apparently agreed with prosecutors who said the "sex, drugs and rock-and-roll" were irrelevant to the crime.

The jury also apparently put little stock in the insect evidence the defense believed was its strongest hope for acquittal. A forensic entomologist originally retained by the prosecution concluded that the age of maggots plucked from Danielle's badly decomposed remains indicated she was dumped after Westerfield came under close police surveillance.

With the findings of that expert and two other entomologists, the defense suggested that someone else killed Danielle. For the final days of the trial, the courtroom became a course in forensic entomology with the prosecution using its own experts to argue that the field was woefully inexact.

During its deliberations, the jury asked to review some of the testimony concerning Danielle's time of death, but also the child pornography evidence taken from Westerfield's home and his audiotaped statement to police.

In his closing argument, prosecutor Jeff Dusek said he could sense the jury was struggling to reconcile the brutality of the crime with the outwardly normal appearance of its perpetrator.

"If he is the guy, that destroys all of our senses of protection. How can I protect mine if there are are not any outward signs?" Dusek said. "But he did it. He did it."

David Alan Westerfield (born February 25, 1952), of San Diego, California was convicted and sentenced to death for the murder and kidnapping of seven-year-old Danielle Van Dam in 2002.

He was a successful, self-employed engineer who owned a luxury motor home and lived two houses away from Van Dam. A divorced father of two college students, he is currently incarcerated at San Quentin State Prison.

The crime

On the evening of February 1, 2002, Brenda Van Dam and a couple of her friends went out to a bar. Her husband, Damon Van Dam, stayed behind to look after Danielle and her two brothers. Damon put Danielle to bed around 10:30 p.m., and she fell asleep. Damon also slept, until his wife returned around 2:00 a.m. with four of her friends.

The six chatted for approximately a half hour, and then Brenda's friends went home. Damon and Brenda went to sleep believing that their daughter was safely sleeping in her room. The next morning, Danielle was missing. The couple frantically searched their home for her, but never found her. They called the police at 9:39 a.m.

Law enforcement officials interviewed neighbors and soon discovered that Westerfield and another neighbor were not home that Saturday morning.

Westerfield eventually arrived home driving his SUV approximately 8 AM Monday. From that point on, he became the prime suspect. Westerfield stated that he didn't know where Danielle could be, and that he was at the same bar that Brenda had attended with her girlfriends. Brenda was able to confirm this, but denied that she and Westerfield had danced together, as he had claimed. Two eyewitnesses testified to seeing them dance together, however.

Two days after Danielle Van Dam went missing a haggard and bare-footed David Westerfield showed up at a dry cleaners dropping off two comforters, two pillow covers, and a jacket that would later yield Danielle Van Dam's blood. When law enforcement first interviewed Westerfield he did not mention going to the dry cleaners.

Westerfield then said that he had driven around the desert and the beach and stayed at a campground. Law enforcement put Westerfield on 24 hours surveillance from February 4, as they found it suspicious that he had given his RV a cleaning when he returned from his trip. The RV, his SUV, and other property was impounded for testing on, February 5.

About three days before her disappearance, Danielle and her mother, Brenda, sold Girl Scout cookies to Westerfield who invited them into his home and chatted with Brenda.

Arrest

On February 22, police arrested Westerfield for Danielle's kidnapping after two small stains of her blood were found on his clothing and in his motor home. Danielle's severely decomposed body was found February 27. His attorneys suggested the police were in a rush to solve the case, and had never considered other suspects. Westerfield did not have a criminal record.

The trial

Westerfield pleaded not guilty, and went on trial on June 4, 2002. During the trial, Westerfield's lawyers, Steven Feldman and Robert Boyce, suggested that the child porn might have been downloaded by Westerfield's 18-year-old son, Neal. Neal denied this.

Part of Westerfield's defense focused on the lifestyle of Danielle Van Dam's parents. The defense suggested that the couple were known for letting each other have sex with other people, and claimed that this lifestyle might have brought the kidnapper to their home.

Westerfield's lawyers charged that he was improperly interrogated for more than nine hours by detectives who ignored his repeated requests to call a lawyer, take a shower, eat, and sleep.

The prosecution could not present any evidence that directly linked Westerfield to Danielle. There were no traces of evidence that he had been in her house (as his lawyers told jurors, "not hair, not fingerprints, not fiber, not nothing") and none of his DNA was found on her body. For the prosecution a trio of criminalists linked microscopic fibers found on the body of Danielle Van Dam to hundreds found in Westerfield's home.

The trial lasted two months and concluded on August 8. On August 21, the jury found him guilty of kidnapping and first degree murder. He also received an additional conviction for a misdemeanor charge of possessing images of subjects under the age of 18 in a sexual pose on his computer.

Entomology

The science of entomology was a major focus during the trial. Three entomologists, consulted by the defense, testified that flies first laid eggs on Van Dam's body sometime in mid-February - long after Westerfield was under police surveillance.

On the other hand, one of these entomologist, David Faulkner, conceded under cross-examination that his time estimate was based mostly on the fly larvae, and that his research could not determine a maximum time her body was outside.

The other forensic entomologist, Neal Haskell, using a weather chart prepared by forensic artist James Gripp, stated that the warm temperatures made it likely that insects immediately colonized Danielle's corpse.

The third entomologist, Dr. Robert Hall, estimated initial insect infestation occurred between February 12 and February 23. However, under cross-examination Hall acknowledged that the insect infestation of the corpse wasn't "typical" because so few maggots were found in the girl's head.

Prosecutor Jeff Dusek questioned Hall about why his calculations were compiled through a method less favorable to the prosecution and why he criticized the findings of the prosecution's entomologist, Dr. Madison Lee Goff, and favored the entomologist hired by the defense.

Goff testified the infestation may have occurred February 9 to February 14, but stressed that other factors may have delayed insect arrival. He explained that a covering, such as a blanket, might have kept flies at bay initially, but no covering was found, and he later said the longest delay by such a shroud was two and a half days.

Pornography

Some of the computers and loose computer media in Westerfield's office contained pornography. His attorneys, however, claimed that police once reported not finding child pornography.

According to the prosecution computer expert, James Watkins, 100,000 images were found, including 8,000 to 10,000 nude images and 80 which could be considered child pornography.

The material included brief movie clips found in Westerfield's office which featured an underage girl being raped by one man while another man restrained her. These clips, including sound of the girl struggling, were played in the courtroom. In all, two sets of movie clips, six animated cartoons, and 13 still images taken from computers, zip disks, or CD-Roms in David Westerfield's home were shown, each featuring underage girls.

Westerfield denied that this was for his enjoyment, and claimed that he was accumulating the images so he could send them to Congress as examples of smut on the Internet.

Selby confession

In 2003, after Westerfield's conviction, James Selby wrote to the police confessing to the Van Dam murder. He was wanted for raping women in San Diego in 2001, and for kidnapping a 9-year-old Oklahoma girl from her bedroom in the middle of the night and raping her in 1999, and was charged with a spring 2001 sexual assault on a 12-year-old girl in Sparks, Nevada, but police don't believe that he murdered Van Dam.

Prosecutor Jeff Dusek, who did read the confession, viewed it as not credible. It is believed that James Selby was in the Tucson, Arizona area when Van Dam was kidnapped in February 2002. Selby is believed to be responsible for a series of rapes in Arizona from October 2001 to May 2002.

Selby - a divorced father of three - worked as a handyman and machinist and traveled often between San Diego and Tucson. He had a prior rape conviction in Colorado. In addition, Selby admitted responsibility in the slaying of Jon Benet Ramsey.

According to Deputy County Attorney Bradley Roach, "It was an aspect of his personality to confess to something to see what other people would say," said Roach. Selby committed suicide in his jail cell on November 22, 2004.

Conclusion

In January 2003, a California judge sentenced David Westerfield to be executed. He was transported to San Quentin State Prison. The Van Dams sued Westerfield, but the case was settled out of court. The Van Dams were awarded $416,000 from several insurance companies who insured Westerfield's home, SUV, and motor home. The settlement also prevented Westerfield from ever profiting from his crime.

When the trial was over, the media, quoting unnamed police sources, reported that Westerfield's lawyers were just minutes away from negotiating a plea bargain when a private citizen's group, started by the Laura Recovery Center and concerned local citizens, found Danielle's body.

According to these reports, under the deal, Westerfield would have taken police to the dump site in exchange for life without parole. Both the prosecution and the defense declined to comment on these reports.

During the penalty phase of the trial, Mr. Westerfield's nineteen-year-old niece testified when she was seven-years-old her uncle entered his daughter's bedroom where she was spending the night with her parents attending a party, to check on the kids, and woke up finding him rubbing her teeth, and said she bit his finger as hard as she could. She went downstairs to tell her mother. Mr. Westerfield was questioned about the incident at the time by his sister-in-law, where he explained that he was trying to comfort her. The incident was then forgotten.

In the months following the end of the trial audio tapes of Westerfield being interviewed were released to the media. In one police interview he tells investigators that he doesn't feel emotionally stable. He is told that he failed a polygraph test. Westerfield tells him that he wants a retest and that he was not involved in Danielle's disappearance.