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CNN Live Today

Sentencing Resumes for Van Dam's Killer

Aired September 03, 2002 - 11:27   ET

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

DARYN KAGAN, CNN ANCHOR: Life or death in San Diego?: Jurors hear more testimony today in the sentencing phase for David Westerfield, convicted of kidnapping and killing his 7-year-old neighbor, Danielle van Dam.
Our correspondent Frank Buckley is covering this phase of the trial for us, and our legal analyst Jeffrey Toobin is standing by with his insights.

Frank, we will start with you, in San Diego.

FRANK BUCKLEY, CNN CORRESPONDENT: Well, Daryn, today, friends and family members of David Westerfield will continue to testify on his behalf, essentially asking jurors to spare his life. That testimony for the defense side began last week. And we saw at the end of the week, for the first time, David Westerfield expressing or showing some emotion in the courtroom. Westerfield was showing that emotion as his sister was testifying about major events in the family, break-ups and deaths in the family. Westerfield was seen wiping away tears. Others who worked with Westerfield or used his designs in their products also testified about the good that Westerfield has done through these products, helped to make lives better and to save lives in some cases.

But the most powerful emotional testimony came during the prosecution side of the penalty phase here with the video that was played of Danielle van Dam. While that video was playing in the courtroom, you could hear Brenda van Dam, Danielle's mother, crying.

Brenda van Dam also testified about how much her daughter meant to her.

(BEGIN VIDEO CLIP)

BRENDA VAN DAM, DANIELLE VAN DAM'S MOTHER: She was one of the most precious gifts anyone could ever receive. And I was so happy the day I found out I was pregnant, because before I had a miscarriage between Danielle and Derek, and I so wanted another child. And I was so happy when I found out I was pregnant.

(END VIDEO CLIP)

BUCKLEY: Damon van Dam, who is Danielle's father, also testified. He was much more subdued in his testimony, but quite effective in conveying the idea that Danielle was a person -- yes, 7 years old, yes, this image that we have all seen in photographs and videos, but a real person, talking about the routines that they would to -- reading stories to her at night.

We also we heard from teachers talking about what a bright student she was.

Jurors will continue to hear testimony on the defense side today. We expect both the prosecution and the defense to wrap things up by sometime tomorrow. Then the jurors will be instructed by Judge William Mudd, then he will begin deliberations -- Daryn.

KAGAN: Frank Buckley, in San Diego, thank you so much.

Let's bring our Jeffrey Toobin in now.

Jeff, I want to start with the tears that we saw, the tears we saw, as Frank was pointing out, from David Westerfield, the first tears through this entire thing. Through everything we've heard about Danielle van Dam, for everything he's been convicted of, David Westerfield, the first time he cries or shows emotion is because his sister on the stand talking about his childhood or his life or something.

JEFFREY TOOBIN, CNN LEGAL ANALYST: Very interesting, very peculiar. I was in the courtroom a lot, and I saw just how stoic he was through these really grotesque photographs that were shown throughout the trial, through the awful testimony about the decomposition of this poor little girl's body. And here, he shows this emotion. On the one hand -- again you never know how to a jury is going to read something like that. But he is reacting, obviously, to the story of his own life, being told with his life on the line.

And he reacted emotionally. It was not a big scene, but it was certainly very striking. And I am sure that the jury noticed, because that's a tiny courtroom and it is so different from his nonreaction all through the trial.

KAGAN: If you listen to the defense and the witnesses that they have put on the stand, they talk about what a great father he is, how he helped all these people out, how he was a good businessman and scientist -- it sounds like he is guy of the year, not someone who has been convicted of kidnapping and murdering his 7-year-old neighbor.

TOOBIN: He is an unusual candidate for the death penalty, for better or for worse. You do not want to be too cynical about this, but most people who are on death row were not white -- or they are not poor -- many of them are white -- but they are not middle class, and he is all of those things. But that is why I think in San Diego, the feeling I got is that the jury would probably not give him the death penalty. But boy, I think the prosecutors, they have a lot to work with here. The argument that certainly will be made is if this case, if this kind of murder, is not bad enough for the death penalty, what is? That is going to be a tough one for the defense to respond to.

KAGAN: First of all, just to clarify something, when you talk about his being white and middle class, you are just reporting on what the system -- how it's kind of worked out, you're not saying that's the way it should be, obviously. TOOBIN: Right -- I'm certainly not -- obviously, that is not -- I'm not advocating.

(CROSSTALK)

TOOBIN: It is just an observation about who is on death row in this country.

Another thing that is so peculiar about this case is there are 600 people on death row in California, and California is executing people at about a rate of one or two a year.

KAGAN: Which is very slow.

TOOBIN: So even if he were to get the death penalty, he would go he to the back of the line. He is 50-years-old; it may be likely he die prison of old age in prison anyway.

KAGAN: Interesting point.

Explain to me this logic: Of course, the defense has to go ahead and present what an upstanding citizen they think he is, but this logic of he is really not such a bad guy, when you counter that with the thing that he is convicted of doing, does it really matter except for this thing that he did to the 7-year-old girl?

TOOBIN: I was thinking about -- I was at the penalty phase of the Timothy McVeigh trial, and I remember the defense there was very similar: It was, Look, he is a normal guy, he's led a normal life, his family loves him. In a way, that makes the crime worse, not better, because he had all of the advantages of life. Often in penalty phase, the defense will point out that someone was abused, that they had a terrible life, that they were poor, they had no advantages -- here, it almost the opposite, where you have something saying, Look, he is a pretty good guy. So doesn't that in effect make it worse? Again -- lawyers deal with the evidence that they have; you cannot present a David Westerfield as someone who is a victim of society, because clearly he was not. But I think it is certainly a contrast, and I do not know what the jury makes of evidence like this.

KAGAN: One thing clear about a tactic the defense has decided in this phase of the trial, and that is they have stayed away from the van Dams. They went after them and their lifestyles in a very harsh manner during the first phase of the trial. Now, where we have heard from them, that was the prosecution putting them on the stand to talk about the impact of losing their daughter.

TOOBIN: Absolutely, you do not mess with grieving parents at this circumstance. Remember, I mean, this is not like a guilt phase of the of trial: In the guilt phase of a trial, a jury is supposed to go in with an open mind, there is presumption of innocence; here there is no presumption of innocence. These are the 12 people who found Westerfield guilty of this horrible crime. I mean, imagine the burden going forward on the defense: These jurors hate this guy. I don't know if they feel personally about him, but they feel like he committed this horrible crime. So it is very tough to try to rehabilitate a client in those circumstances, but that is what Steven Feldman is trying to do.

KAGAN: Let's just wrap it up with just a basic of this: Each of these jurors at the beginning of the trial had to stand up and say they were willing to impose the death penalty. Had they not done that, they wouldn't be on this jury.

TOOBIN: Absolutely. Very important point.

KAGAN: We will be watching it. Jeffrey Toobin, thanks for staying late this morning. We appreciate it.

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