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American Morning

Interview with Catherine Crier

Aired August 28, 2002 - 08:14   ET

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

DARYN KAGAN, CNN ANCHOR: This morning, the penalty phase in the David Westerfield trial begins in San Diego. A week ago a jury found Westerfield guilty of kidnapping and killing Danielle van Dam. She was just seven when she vanished from her home in early February. Now jurors must decide whether Westerfield dies by lethal injection or spends the rest of his life in bars.
Joining us to talk about the two possibilities, Catherine Crier, a former prosecutor, now anchor of her own show on Court TV.

And we'd like to take credit for you here at CNN, too.

CATHERINE CRIER, COURT TV ANCHOR: You get more than a little credit, if you'll take it.

KAGAN: We'll take it. You're always welcome home.

CRIER: No, she was never here. She was never here.

KAGAN: Yes. Yes, we'll definitely give you credit.

But also we love your background, of course, your legal background.

Explain to us how it works in California. The jury has a big responsibility, but the final word will go with the judge on this case.

CRIER: Well, the judge can overturn something that the jury does. But, in fact, it's the jury's decision as to what the penalty will be. And so they're going to listen to the penalty phase of the case. The prosecutor said it'll probably take a day, starting today. Then, of course, the defense has a chance to put on witnesses. And then they have to deliberate as to whether the crime was so heinous, whether this man's background is such that the appropriate punishment is death.

KAGAN: It goes beyond just the facts of the crime. We're talking about emotions, about morality. And the judge does have a say in certain things that are presented.

CRIER: Yes.

KAGAN: One thing he's going to allow, he's going to allow some very emotional home video of Danielle van Dam to be played during the sentencing phase. That's going to hurt David Westerfield. CRIER: Well, this is the character of the crime. This is the most heinous crime anyone could imagine. This man doesn't have a record that we know of, other than a misdemeanor DUI, which will not come into evidence. He probably will have character witnesses talking about every good deed he's ever committed.

On the other hand, the jury has got the most heinous of crimes.

KAGAN: I mean look at this face.

CRIER: Oh, my god.

KAGAN: I mean it just breaks your heart to think of what happened to this little girl.

CRIER: Yes, and the evidence. Of course, prosecutors are going to go back through the evidence, the fingerprints in the mobile home just above the headboard of his bed, the hair found in his bed, the blood there in the mobile home. The images that you would conjure in the minds of those jurors are horrific.

KAGAN: But speaking about evidence, it's circumstantial evidence, and that could hurt the prosecution in going for the death penalty.

CRIER: It is if people aren't paying attention to what the law says. Direct and circumstantial evidence are equivalent. One is an eyewitness, the other is DNA. Are you going to tell me the DNA is more likely to lie than an eyewitness? In fact, you find oftentimes that circumstantial evidence is more component because it has a definite end to it. You know, here the DNA says this, the hair says this, as opposed to an eyewitness that might go, oh, well, it was dark and I wasn't sure and maybe it was this.

So, prosecutors like good circumstantial evidence.

KAGAN: As a prosecutor said, it was Danielle speaking from the grave.

CRIER: Yes.

KAGAN: We want to talk about some things that have been taking place this summer that could affect the outcome here, one, exoneration. Just yesterday we saw a man released from jail 17 years serving time for rape, a rape he did not commit, even though they had a confession on tape.

If you're sitting on a death penalty jury, in the back of your head you have to think if I can't completely connect all the dots, this man does not have a criminal record, can I really send him to death.

CRIER: It's going to be interesting because the psychology of the jury will be just that. You have a summer of abductions and horrific murders. But you've also got all of these cases where people have been released from death row and questions about the death penalty. And you also have some real tough questions in the Westerfield case. How did he get in the home? Why wasn't there any evidence of him in the home? The entomology evidence, the bugs that said she could not have been there until after he was under surveillance.

So you're right, if the jury says well, we thought it was beyond a reasonable doubt but ooh, I'm heading a little, they may go for life in prison.

KAGAN: It's hard when you're talking about a man's life.

A big part of the defense during the first part of the trial was the Van Dams' lifestyle.

CRIER: Yes.

KAGAN: The mother and father came into question. A lot of people critical of that. A lot of people say that was evidence that just about anybody could have come into that house. Do you expect that to come into this part in the penalty phase?

CRIER: I would say the defense attorney would be foolish to bring it up. The jury's heard it. They've been able to do with it what they wished. They obviously found Westerfield to be guilty. To continue to attack the parents as a means of mitigating his punishment, I think, would be a tactical mistake.

KAGAN: You explained to us part of the time frame here. One day by the prosecution...

CRIER: We expect one day.

KAGAN: How long is this going to take?

CRIER: Well, they both have claimed witnesses from out of state. Now, the prosecution may have some evidence of former bad acts. Under the law, almost anything that qualifies as indicative of violence -- words spoken, threats made in the past...

KAGAN: The pornography on his computer, will that be brought in?

CRIER: Well, they'll certainly argue that again. But -- because it's all in evidence. But I expect that to be the consistency of the prosecution's case and the defense, as I said, will probably bring in everyone who's ever loved this man before.

KAGAN: To say nice things about him.

CRIER: Yes.

KAGAN: And finally, your gut instinct on this? Is he getting the death penalty or not?

CRIER: Ooh, this...

KAGAN: I hate to put you on the spot on something so important. CRIER: Well, no, it's fair. But this is one of the most difficult cases. I'm going to guess life in prison.

KAGAN: You're going for life?

CRIER: Yes.

KAGAN: All right.

Catherine Crier, Court TV, formerly of CNN.

Had to get that plug in one more time.

CRIER: Thanks.

KAGAN: Thanks so much for stopping by.

CRIER: You bet.

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