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CNN Live Today

Interview with Toni Blake

Aired August 22, 2002 - 11:24   ET

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

DARYN KAGAN, CNN ANCHOR: And now we focus on the Danielle van Dam case. San Diego jurors will consider the death penalty next week for David Westerfield. After lengthy deliberations, they found him guilty in the 7-year-old girl's death. Hers was the first high- profile child kidnapping and murder case this year. The Westerfield jury can recommend the death penalty or life in prison.
Jury consultant Toni Blake joins us from San Diego to talk about the options and the strategy ahead -- good morning, thanks for joining us, Toni.

TONI BLAKE, JURY CONSULTANT: Thank you. I can barely hear you out here, so we are going to try to do what we can.

KAGAN: We call that doing the CNN salute, right there, when you stick your finger in your ear like that, so I will try to speak up.

First of all, given that this jury took nine days to deliberate on the guilty verdict, what have we learned about this jury so far?

BLAKE: Well, we have said that took nine days to deliberate, but we have to remember that some of them were half days, and really, equivalently, if we take a look at the hours, it is probably about six, six and a half days, and that is not terribly long for a murder case or particularly for a capital case, so this did not worry me that they were deliberating too long. There was a lot of speculation from other folks saying that they may be hung. I did not ever speculate that, and thought that they would eventually come up with a jury verdict. What it does mean to Mr. Feldman, the fact that they deliberated longer, is it gives him at least a window of opportunity for the death phase, to get back in, open some minds up, and try to, save his client at this point.

KAGAN: And when you say Mr. Feldman, that is the defense attorney in this case.

BLAKE: It is.

KAGAN: Now what happens now is a balance of -- they have the defense putting mitigating circumstances and aggravating circumstances for the prosecution to make their case before this jury.

BLAKE: Right. The evidence rules in this phase are a lot different than they were in the last phase. In the guilt phase, they can't put on all the character unless Mr. Westerfield goes on stand and puts his character at issue itself. In this phase, all the character comes forward. So they have factors that they can use to either aggravate the case or mitigate the case. The prosecution will come in with all the aggravating factors, any prior acts of violence that he had done, any prior uncharged acts, anything from his background that makes him look like he would either be not amenable to life in prison, or would be deserving of the penalty that we give to the worst of the worst.

Of course, the defense will come on with all the mitigating factors. They will show that he has been a good father, they will show that he has always been current on his child support payments, that he is a good member of the community, a productive member of the community, and that he is worth sparing, and then the jury will have to weigh it. If the aggravating factors outweigh the mitigating factors, they can, but they are not required, to return a penalty of death.

KAGAN: And as we said, you are a jury consultant, so let's look at this specific jury. What would you tell the prosecution to consider, and what would you tell the defense to consider? The first thing that comes to mind is the gender makeup of this jury.

BLAKE: Yes. We have six women and six men on this jury, and if I were the prosecution or advising the prosecution, I would tell them to focus on the crime itself, the heinousness of the crime, and the fact that the victim was a child. I would be playing victim impact statements, I would be playing that video that we have seen of Danielle van Dam several times, and I would be really showing that the circumstances of this crime were deserving of the death penalty.

Again, in the mitigation factor, I would look at his alcoholism, I would look at the life that he has led and look at -- try to insinuate the effects it would have on his family, if he were to be put to death, and then, of course, the jury has just got to weigh that.

KAGAN: But, Toni, with this specific jury, is there anything that you can look at, either gender makeup, or racial makeup, socioeconomic makeup, that would be possible -- I don't want to say exploit, but that you could play the case differently than you would with a different group of people?

BLAKE: There is a couple things. Because there is a six-six jury gender-wise, and because we have a nice collective, we have everything, I think, from a 22-year-old male to a 76-year-old male, women from different backgrounds, men from different backgrounds, what they are going to try to do is focus on those jurors who did not come out as affirmatively to the polling afterwards. So any jurors who came out and were weaker when they said "yes" as to the guilt verdict on the capital portion, those jurors will be somebody that Mr. Feldman will be focusing on. Of course, the ones that were more affirmative and harder with their yesses, Dusek will be focusing more to those jurors.

KAGAN: Got it. Toni Blake in San Diego, thank you so much. That penalty phase begins next Wednesday. Thanks for your insight.

BLAKE: Thank you. TO ORDER A VIDEO OF THIS TRANSCRIPT, PLEASE CALL 800-CNN-NEWS OR USE OUR SECURE ONLINE ORDER FORM LOCATED AT www.fdch.com