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American Morning

Jurors May Begin Deliberations in Westerfield Case

Aired August 08, 2002 - 07:10   ET

THIS IS A RUSH TRANSCRIPT. THIS COPY MAY NOT BE IN ITS FINAL FORM AND MAY BE UPDATED.

PAULA ZAHN, CNN ANCHOR: Guilty to the core, that's the message prosecutors are delivering to the jury during closing arguments in the Danielle van Dam murder trial. The defense, for its part, says there is no direct evidence connecting David Westerfield to the kidnapping and killing of the 7-year-old girl.
If convicted, Westerfield could get the death penalty, and the jury could have the case by days' end.

Thelma Gutierrez is standing by in San Diego with a preview.

Good morning.

THELMA GUTIERREZ, CNN CORRESPONDENT: Good morning, Paula.

You are right, the defense has said that this is purely a circumstantial evidence case.

Now, when the defense wrapped up yesterday, defense attorney Steven Feldman raised questions that he hoped would sway jurors. After all, all he needs is one juror in order to have a hung jury.

Now, Feldman very emphatically went through each piece of evidence piece by piece. He offered an alternative explanation for what the prosecution has argued. No 1, the fibers that allegedly tied David Westerfield to Danielle Van Dam. Feldman told jurors that even the experts couldn't say it was from the same source.

No, 2, the alleged controversial rape video in Westerfield's collection. Feldman says it might be distasteful, but argued that if the woman in the tape was 18 or over, then it is not a crime.

And finally, he told jurors that according to expert witnesses who established a timeline for Danielle's death, that all agreed that it happened during the time that Westerfield was under police surveillance, and so he could not be the killer. Well, the prosecution says that is not true.

Now, Feldman said that the prosecution could not even prove that David Westerfield was ever in the Van Dam home.

(BEGIN VIDEO CLIP)

STEVEN FELDMAN, DEFENSE ATTORNEY: Did he gag her? There are no gags. Does he tie her up? There is no rope. Does he kill her? There is no evidence of that.

There are too many holes. There is no smoking gun. There's too many explanations. They can't put it together, that's the problem.

(END VIDEO CLIP)

GUTIERREZ: Now, during the rebuttal argument, the prosecution says that the defense distorted the truth, and that the evidence overwhelmingly points to Westerfield's guilt.

(BEGIN VIDEO CLIP)

JEFF DUSEK, PROSECUTOR: If I prove this case beyond a reasonable doubt, he's guilty. He is guilty. But that is not the top of the mountain. As the court instructed you and you will receive in your jury room, I do not have to rise to the level of eliminating all possible doubts. I don't have to do that.

(END VIDEO CLIP)

GUTIERREZ: Now, the prosecution will continue its rebuttal argument, and possibly later this morning, this case could go to the jury.

Paula -- back to you.

ZAHN: You will be our eyes and ears there. Thelma, thanks so much.

Joining us now with his perspective on closing arguments in the Van Dam murder trial and the jury deliberations ahead, CNN legal analyst, Jeffrey Toobin, who spent a fair amount of time in the courtroom out there...

JEFFREY TOOBIN, CNN LEGAL ANALYST: Indeed.

ZAHN: ... and has observations for us this morning.

Good morning.

TOOBIN: Hi.

ZAHN: First of all, walk us through the summation so far on the prosecution's part. So basically, they have suggested that David Westerfield was in the house waiting, hiding for hours, that he is a guy that was obsessed with child pornography, among other things. How convincing do you think any of that is to a jury?

TOOBIN: You know, I think the core of the prosecution argument has never changed from day one. The idea that Westerfield was inside really is kind of speculation. I mean, they don't have any evidence of how Westerfield got inside, or when he got inside.

But the key evidence is the hair and fiber evidence, and especially the DNA blood evidence. Danielle Van Dam's blood is on Westerfield's jacket. Her blood is in the mobile home. In the most dramatic moment of Westerfield's (sic) summation, he talked about Danielle's hair on Westerfield's pillow. "Her hair in his bed." He kept saying those five words: "Her hair in his bed." Just a horrifying image. That is the evidence that's never been explained away. If he gets convicted, I am convinced that's what's going to get him convicted.

ZAHN: It appeared to me that the defense didn't even try to explain that away yesterday.

TOOBIN: Well, they did -- they tried to do something with the hair. They tried to suggest that perhaps in the so-called "dirty dancing" between Westerfield and Danielle's mother, there was some sort of transfer. But the blood evidence, the defense has really made no real effort to refute.

Steven Feldman, the defense attorney, said, well, you know, the mobile home was left out. Perhaps she went inside. Kids bleed all of the time. That's a pretty far stretch. I don't blame Feldman, you know, for not coming up with the perfect argument. I don't know if there is a perfect argument.

ZAHN: So if you're sitting on the jury, what worked from the defense's point of view, the fact that the parents were irresponsible in some way, and that irresponsibility led to their daughter's death?

TOOBIN: Well, I think a version of that is the best argument. The best argument that the defense has is, how did this big, burly man get inside the house with no one noticing? How did he take Danielle from her bed without her crying out, without the dog barking, without leaving any evidence behind, no hair or trace evidence of his own body in there? How did all of that happen without anyone noticing? I think that's a difficult question for the prosecution to answer, and that's their best argument.

ZAHN: What do you think they have left in them today? So you think they have a couple of hours more...

TOOBIN: Yes.

ZAHN: ... to go on the summation?

TOOBIN: Jeff Dusek, the lantern-jawed prosecutor, is just about finished with his rebuttal summation. He's maybe got an hour or so to go. Then jury instructions, then finally, after -- this case moved very quickly. After all, she was only murdered in February. But it slowed down a lot in the last few weeks, and I think it will probably go to the jury by the end of the day.

ZAHN: Very quickly, the judge has made it clear he wants them to separate this case, the Danielle Van Dam case, from the Samantha Runnion case. Is that possible to do...

TOOBIN: Well...

ZAHN: ... when you think of the communities being so close together, the jury not being sequestered, and the amount of press attention on Samantha Runnion's murder?

TOOBIN: You know, I think jurors -- I think jurors show a lot of common sense. They follow the judge's directions. I think certainly they won't be thinking about it explicitly, but it may be in the back of their minds. It's hard to avoid, especially in San Diego, which is, as you say, so close to where Samantha was taken.

ZAHN: Well, I know we have you on standby all day if...

TOOBIN: I'm waiting.

ZAHN: ... we have a short deliberation, but we doubt that.

TOOBIN: I don't think so.

ZAHN: But we'll be counting on your analysis in the days to come.

TOOBIN: OK.

ZAHN: Thanks, Jeffrey.

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