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CNN Live Today

Westerfield Jurors to Enter Penalty Phase Next Week

Aired August 22, 2002 - 10:03   ET

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

DARYN KAGAN, CNN ANCHOR: We move on to San Diego now where jurors have a week to relax and reflect and brace for what could be one of the toughest decisions of their lives, and most certainly the most critical decision in the life of David Westerfield.
Jurors return to court next Wednesday to decide whether Westerfield should die for the kidnapping and murder of Danielle van Dam. Here is the verdict that the same jury handed down yesterday.

(BEGIN VIDEO CLIP)

UNIDENTIFIED FEMALE: Guilty of the crime of murder. Guilty of the crime of kidnapping. Guilty of the crime of possess matter depicting person under 18 in sexual conduct.

(END VIDEO CLIP)

KAGAN: And now for some legal perspective, we check in with a familiar face here at CNN, our own legal analyst, Jeffrey Toobin -- Jeff, good morning.

JEFFREY TOOBIN, CNN LEGAL ANALYST: Hi, Daryn.

KAGAN: Were you surprised by the verdict that they came back guilty on all counts?

TOOBIN: You know, I really wasn't. I watched that trial carefully. I was out there for some of it. The one thing that the defense could never get around was that the DNA evidence, the blood -- Danielle van Dam's blood on Westerfield's jacket, her blood in his mobile home. There was just no explanation for that except that he was guilty, and that what the verdict was.

KAGAN: Let's look where we go from here, the penalty phase. First, the jury gets a week off, not sequestered, yet again. Could that be a factor in appeals, both in the verdict and then later for the death penalty?

TOOBIN: It certainly will be raised on appeal. Remember, this trial took place in San Diego, just a few miles south of where the Samantha Runnion case took place. All throughout the trial, that tragedy unfolded. Unfortunately, beginning, middle, and end, including the arrest of Avila took place just north of San Diego, and the jury was out -- was not sequestered the whole time. Judges have a lot of discretion here, and decisions are rarely overturned on that basis. It was interesting being in the courtroom when that was discussed. You could tell the jury desperately did not want to be sequestered. They really -- they have lives to lead, they have family obligations. They really didn't want to be sequestered. The judge honored their wishes, but you can be sure that the defense will raise it on appeal.

KAGAN: Now, let's look at what the jury will have to look at here to decide death or life in prison. You have aggravating circumstances, that is what the prosecution will present, and then mitigating circumstances, how the defense will try explain why Westerfield's life should be spared.

TOOBIN: Right. The defense is going to call witnesses to talk about Westerfield's life outside of this horrible event. This guy has had no criminal record at all...

KAGAN: I think he has a drunken driving conviction.

TOOBIN: I'm sorry, right you are, Daryn. I -- but it is not the kind of crime...

(CROSSTALK)

TOOBIN: ... gets you the death penalty usually. He was an engineer. He had a family that loved him. His son -- it would be a very interesting question whether his son returns to the witness stand. His son testified as a defense witness. He was very sympathetic. He was very likable. One of the few funny moments in this tragic trial came when the son admitted on the witness stand that yes, he sometimes looked at pornography, but he used the name "Bob Dole" as his e-mail address.

The prosecution, in its aggravating factors, will certainly talk about the cost on the family, and Danielle's mother and father will surely testify again. An interesting legal question is the judge, outside the presence of the press, has been holding hearings about what evidence may be admissible in the penalty phase,and one of the things that is possible, we don't know for sure, is that the government will bring out evidence of other kinds of sexual misconduct by Westerfield. If that -- that could be really damaging for him, because that would undercut the argument that well, this was the only terrible thing that he has done in his life.

KAGAN: Well, one decision the judge has already made, this thing goes on Wednesday. The defense had asked for more time to bring more witnesses in from out of state, but the judge saying, No, we go Wednesday.

TOOBIN: I wouldn't be shocked if it were delayed, actually, until after Labor Day, but it will certainly go soon.

KAGAN: And then finally, when I heard the verdicts yesterday, I thought, oh, I can think of a thousand questions I would love to ask this jury about what was taking place in those nine days, and how you came to the verdict. If you had that opportunity, what would you want to know from this jury?

TOOBIN: What was interesting, when you saw the evidence that they asked for, especially towards the end of their deliberations, they really asked for evidence that the defense had put forward. That was one of the reasons some people thought, that they were perhaps leaning in the defense direction.

Remember, one of the big defense claims in this case was that Danielle died after Westerfield was under surveillance. There was that gruesome testimony about the insects that had sort of taken over her body, and those insects, the scientific analysis, said, according some scientists, that she had been placed there later in February. I would like to know why they asked for the evidence they asked for. Whether it was all -- they were all concerned about it, or there was one holdout juror, but there are probably a lot more questions too, now that you mention it.

KAGAN: And we will have that opportunity. Of course, can't talk to any of them until after the penalty phase, which does begin next week. Jeffrey Toobin, thank you so much.

TOOBIN: Good to talk to you, Daryn.

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