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American Morning
Still No Verdict on Westerfield
Aired August 15, 2002 - 08:15 ET
THIS IS A RUSH TRANSCRIPT. THIS COPY MAY NOT BE IN ITS FINAL FORM AND MAY BE UPDATED.
BILL HEMMER, CNN ANCHOR: Five days now behind closed doors, still no verdict from the jurors in the Danielle van Dam murder trial. They go back to work later today in San Diego. And with the jury still out on David Westerfield's guilt or innocence, there is room now for speculation about what this all could or could not mean for the prosecution and the defense.
Let's get a legal take on it with Jeffrey Toobin, our legal analyst here on AMERICAN MORNING.
Good morning to you.
JEFFREY TOOBIN, CNN LEGAL ANALYST: Hi, Bill.
HEMMER: You say this is no shocker, no surprise.
TOOBIN: No shocker. Rule of thumb, for every week of trial, there is usually one day of deliberation. You know, it's sometimes right, sometimes wrong, but lawyers on an eight week trial...
HEMMER: So this case started -- OK, June 4.
TOOBIN: Eight week trial, fifth day of deliberations, not a big deal. And so I mean I think they're just sort of working away.
HEMMER: Do you abide by that formula often?
TOOBIN: Well, I mean...
HEMMER: I mean does it work in most cases?
TOOBIN: Well, I mean, you know, it's not scientific, but I think it's by and large a pretty good rule of thumb. The other factor to consider, and it always comes back to this subject, is the O.J. case. The O.J. Simpson jury in the criminal case, you know, decided, as we all remember, instantly, you know, in less than a day. And they took so much criticism for that.
Jurors in these high profile cases recognize that they are public figures, whether they want to be or not. And the one thing they don't want to be accused of doing is rushing to judgment. So they take a few days. It's a complicated case. And so I don't think you can read much into this one way or another.
HEMMER: And I have heard you say that in a handful of high profile cases we've watched over the past six months here. The Skakel trial comes to mind, too, about jurors really being in tune with how much attention is given to this case.
TOOBIN: Absolutely.
HEMMER: OK, let's look at the evidence the jurors this week have looked for in terms of a read back.
TOOBIN: Right.
HEMMER: There was an interview done about three days after Danielle disappeared. And in the interview with David Westerfield, he uses the word "we" when talking about going out in the desert with his camper. Significance is what?
TOOBIN: You know, I was in the courtroom when that was played for the first time during the trial and I heard the whole thing. It's about 40 minutes, as I recall.
HEMMER: Did it stick out in your mind?
TOOBIN: You know, it didn't.
HEMMER: I'd did not?
TOOBIN: I did not hear the "we." I had to go back when it was played on TV to hear the "we." So I wouldn't be surprised if the jurors want to hear that themselves because, you know, he talks a lot about I did this, I did this, I did that, and then there is that "we" in there. But it's very hard to hear the first time.
I didn't, it didn't strike me as very significant.
HEMMER: If you didn't hear it, then, how did the phone call react? Do you recall? What did the evidence suggest?
TOOBIN: There was no reaction during the interview. I mean the interviewer was very low key. He was a professional interrogator. He didn't react at all. But obviously during the trial a good deal was made of the fact that he said "we."
HEMMER: They have also looked for these child pornography tapes. It may take a back seat to charges of kidnapping and murder, but what do you read into the fact that they're looking for more on that front?
TOOBIN: Well, what you have to remember is that he's charged with a separate crime of possessing child pornography and one of the things Steven Feldman, the defense attorney, said in his summation was look at these pictures. These women, girls, are not kids. They are adults. You have to look at the pictures to see whether they are children or not.
You know, they're just doing the responsible thing. It's also an indication of how much work the jury has. I mean they don't just have to decide the murder and kidnapping, they have to decide the child pornography. Though I'm sure it's unpleasant for probably all of them, they have to look at the pictures. HEMMER: You know, so often, Jeff, we had talked about the private lives of Danielle's parents entering into the defense's case. Have you been able to see or suggest that jurors right now, through their read backs, are looking at this aspect with much intent?
TOOBIN: You know, the, all you can say is they have not asked for any evidence about that issue. So I think that's probably good for the prosecution that they don't seem to be hung up on the possibility of suspects who could have come from the so-called swinging lifestyle.
So I, so far it doesn't seem like they're very interested in that.
HEMMER: And we will only know that when they come out of deliberations.
Quickly, it's Thursday. If we don't get it today, Friday portends what?
TOOBIN: Fridays are big jury day -- big verdict days. Fridays are, jurors don't like to have this kind of thing hanging over their heads. Friday is the day, I hate to make a prediction, but I would bet on a Friday verdict.
HEMMER: OK, I'm not going to ask for a prediction...
TOOBIN: OK. Good.
HEMMER: ... because it is too tough, my friend.
Talk to you later.
TOOBIN: OK.
HEMMER: Thank you, Jeff.
Here's Paula.
PAULA ZAHN, CNN ANCHOR: But you know what, Jeffrey?
TOOBIN: Yes?
ZAHN: I think you're three for three on the predictions you've made here...
TOOBIN: I'm doing...
ZAHN: OK, the John Walker Lindh.
TOOBIN: Right. And the -- what was...
HEMMER: Skakel kind of.
TOOBIN: Skakel after the summations.
ZAHN: Right. Right.
TOOBIN: I sort of switched on Skakel. But I have my verdict tie. Remember I wear my verdict tie?
ZAHN: Oh, that's right.
TOOBIN: Yes. The special...
ZAHN: And that signals that it's -- within 24 hours you'll be wearing that tie?
TOOBIN: That works -- yes. And now it's not this tie, so keep in mind.
ZAHN: OK. We'll hold you to it.
TOOBIN: OK.
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