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Defense Attorney Robert Grimes Discusses Westerfield Sentencing

Aired August 28, 2002 - 12:01   ET

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


KYRA PHILLIPS, CNN ANCHOR: Now to San Diego, where jurors have to decide whether David Westerfield should spend the rest of his life in prison or be executed. They convicted him last week of kidnapping and killing 7-year-old Danielle van Dam.
CNN's Frank Buckley is live at the courthouse.

Frank -- what do you know?

FRANK BUCKLEY, CNN CORRESPONDENT: Well, Kyra, David Westerfield is expected to be in the courtroom very shortly. He'll be facing the same 12 jurors, who have already convicted him of murder, of kidnapping and of possessing child pornography.

Now, they face the task of hearing testimony on whether or not he should be executed for his crimes.

In essence, this is another mini-trial within the trial. Both the prosecutor and defense attorney will present an opening statement. There will be testimony heard from witnesses. And at the end, both sides will have an opportunity to have a summation, with the defense, in this case, going first. The defense gets the final or last -- the defense has the final word in this portion of the trial.

The prosecution has said that they are expecting to take a day to a day-and-a-half. We expect during their presentation to hear from Danielle van Dam's parents.

We should also be seeing a video of Danielle van Dam, a home video, a number of photographs that will chronicle her life. That should be a very emotional part of this phase of the trial.

And we should also expect to hear from the friends and family of David Westerfield, who will speak to the positive aspects of David Westerfield's life. And they will, essentially, be asking the jurors and the court to spare his life.

One thing that they may also be attempting to do on the defense side is to go after residual doubt, or lingering doubt. That is, to argue to the jurors that if there is any doubt at all in your mind as to David Westerfield's guilt, that you should find him life in prison without parole instead of death. So that will be one thing that the defense attorney will be trying to do.

One additional note about the coverage of this trial. Still photographers have now been banned from the courtroom. This after, on verdict day, the still photographer who was acting as the pool still photographer -- these are the photos that end up in the newspaper and the magazines and on Web sites. The still photographer took a photograph of the van Dams in the courtroom.

The judge in this case saying that that was a direct violation of court rules on coverage of trials. So, he, yesterday in a hearing, banned all still photographers.

The video camera will be inside, however, and we will be able to provide live coverage -- Kyra.

PHILLIPS: And, Frank, we'll check in with you at that time. Frank Buckley, thank you.

Also joining us from San Diego is defense attorney, Robert Grimes, who has been following this case closely.

Robert, hello.

ROBERT GRIMES, DEFENSE ATTORNEY: Good morning.

PHILLIPS: So the jury is now going to decide this man's fate. What do you think it's going to be?

GRIMES: Well, I think the defense has a very good chance of not getting the death penalty. I think that they have been -- they have known this day was coming from when Westerfield was arrested back in February. I think they knew it was going to be a penalty phase, because the physical evidence was strong. But I think they have a pretty good death penalty jury.

PHILLIPS: Now, the judge doesn't have to stick with that decision, correct?

GRIMES: Well, the judge -- if the jury imposes life without parole, then the judge cannot impose the death penalty. On the other hand, if the jury imposes the death penalty, theoretically, Judge Mudd could set aside the death verdict and convert it to life without parole, but it's highly unlikely. It's almost never done.

PHILLIPS: Now, Robert, Frank said we are going to hear from friends and family of the van Dams, also the van Dams, both mom and dad; also friends and family of Westerfield. And then, I was reading that a very emotional videotape of Danielle's life will be shown in that courtroom. The judge has accepted that.

Can you talk a little bit about this? Is this, do you think, for an emotional memory sake? Or do you think this is to really drive home at the jury?

GRIMES: Well, it's a very emotional thing for the jury, and it can be very persuasive. We call it, "victim impact testimony," and it's going to be more emotional than any of that -- within the guilt phase trial was to hear from the van Dams what it means to lose their daughter. It can be pretty powerful. PHILLIPS: So there's going to be a lot of character and emotional evidence vs. technical, scientific evidence, is what you are saying?

GRIMES: Exactly, Kyra. That's the difference between this very brief, but very emotional penalty phase. In the long and technical guilt phase, we heard all of the scientific evidence -- time of death, DNA, fibers. This goes right to the character of Westerfield, good or bad. We hope that it will be primarily good. But if the D.A. has anything bad about him, we'll hear it today.

And then, also, we'll hear about the suffering of the family, and the jury actually has to weigh these two sides in deciding if it's life or death.

PHILLIPS: Well, you mentioned possibly bad conduct of Westerfield. Didn't the D.A. mention something about police reports?

GRIMES: The D.A., Jeff Dusek, says he has police reports of some prior incidents, and we don't know how serious they are. We know it has to be violence or alleged violence, because if it's not alleged violence, if there is no conviction, it would not be admissible.

So the D.A. is claiming that he has someone who told the police at some point that there was some level of violence. But we know it doesn't rise to a conviction either, because it's been reported for months that he has no convictions, other than one misdemeanor drunk driving.

PHILLIPS: What about psychiatric testimony or evidence?

GRIMES: Well, that's another wild card. Often, that can be an absolute key part of the defense presentation in the penalty phase of a murder case. In this case, we can assume that the defense has had a number of psychiatrists and psychologists evaluate Westerfield to give him testing and other things. Whether or not it will be something that they choose to present is another matter.

There is a possibility that there might be testimony on the effects of alcohol. He was drunk by most accounts the night of the crimes. And so, we could hear -- we definitely could hear psychological and psychiatric testimony, but Feldman is not disclosing that yet. If we hear it, we won't know it until those witnesses are called.

PHILLIPS: Defense attorney, Robert Grimes -- thanks, Robert. We'll talk to you again.

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