Return to Transcripts main page
CNN Live Today
California Has Tremendous Death Row Backlog
Aired August 22, 2002 - 12:20 ET
THIS IS A RUSH TRANSCRIPT. THIS COPY MAY NOT BE IN ITS FINAL FORM AND MAY BE UPDATED.
ANDERSON COOPER, CNN ANCHOR: San Diego engineer David Westerfield has been convicted of murdering his 7-year-old neighbor. Next, he will learn if he will pay the crime with his life. It took jurors ten days to find Westerfield guilty of kidnapping and killing Danielle van Dam. Next week, the same jury returns to sentence him. That will happen on Wednesday.
To talk about this, let's bring in CNN Legal Analyst Jeffrey Toobin -- good morning, Jeffrey.
JEFFREY TOOBIN, CNN LEGAL ANALYST: Hey, buddy.
COOPER: How is it going?
TOOBIN: All right. Big day.
COOPER: So what can we expect for next week?
TOOBIN: Well, I think the one thing we know for sure is that Danielle van Dam's parents will testify about the loss of their daughter and what that meant to them, and often that is really the most important thing that happens in a penalty phase because it is so emotional, it is so devastating. Jurors basically almost check out after that.
The other thing we are sure of is that there will be witnesses for the defense who will talk about David Westerfield's life beyond this crime, the fact that he was good father, that he was a good coworker, that he had no prior record except for this drunken driving conviction. An attempt to show that he is something more than the worst thing he ever did. The real mystery about the penalty phase is whether the prosecution will be able to produce any evidence of other crimes, other misconduct, particularly with children. There have been some secret hearings about that kind of evidence and it is unclear if that evidence exists, and if the government will be able to introduce it.
COOPER: The kiddie porn, or whatever it was that Westerfield allegedly had, will that play a role in the sentencing? Will that be taken into account?
TOOBIN: Well, the jury has already seen that, so the jury knows it. It was extremely important evidence in the trial, even though possession of child pornography was only a misdemeanor, a very minor crime in the context of this case, the jury really visibly reacted to that awful -- those awful images and sounds during the trial, and that is certainly going to be something that probably is still on their minds.
COOPER: David Westerfield is 50 years old. I mean, even if he does get the death penalty, is it likely he will actually be put to death in California?
TOOBIN: Well, you know, that is an interesting question. I was just looking at the Death Penalty Information Center Web site, which is really an extraordinary resource about the death penalty. California has 611 people on death row. They are executing people at the rate of about one per year, so if he is the 612th person on death row, and he is 50 years old, you do the math, it is unlikely...
COOPER: Now, why is there -- why such a backlog? Just because of the lengthy process, the appeals process?
TOOBIN: Well, it is interesting. California has an extremely backlogged appeals process. Different states have backlogs for different reasons. Some states, like Illinois and Maryland have a complete moratorium because of questions about the death penalty, but California, the system is just simply clogged up. A lot of these people's appeals haven't even been argued yet, and there are just hundreds of people waiting on line. So, it is really unlikely that, even if he is sentenced to death next week or the week after, that it will be even a decade before he is executed.
COOPER: Well, tell us how it works. Is there any way that because this is such a high-profile case, that he will suddenly be put to the front of the line? I assume it doesn't work that way.
TOOBIN: It doesn't work that way. The only way you move to the front of the line in death penalty situations is if you become a volunteer, if you drop your appeals. And there is certainly no sign that David Westerfield is going to do that. The California system, as I say, you know, they don't even have transcripts together for a lot of these appeals. The system is just, you know, working that slowly. Westerfield will go to the very back of that line, so it is really -- these death row waits in California can be measured in decades, not years.
COOPER: So the two options the jury will be looking at next, starting next Wednesday will be death by lethal injection or life without parole. Is that correct?
TOOBIN: That is right. And that is oddly in Westerfield's favor because in some states, the jury is told that there is a possibility that the person could get let out on parole if they are not sentenced to death. Here, the jury is told that the sentence is life without parole. What is clear, barring an overturn -- barring a reversal on appeal, is David Westerfield will die in prison. The only question is, will he die at the hands of the state, or will he die of natural causes.
COOPER: All right. Jeffrey Toobin. Thanks very much.
TOOBIN: Good to talk to you, Anderson.
TO ORDER A VIDEO OF THIS TRANSCRIPT, PLEASE CALL 800-CNN-NEWS OR USE OUR SECURE ONLINE ORDER FORM LOCATED AT www.fdch.com
