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CNN Live Today
Van Dam Killer's Trial in Penalty Phase
Aired September 03, 2002 - 12:05 ET
THIS IS A RUSH TRANSCRIPT. THIS COPY MAY NOT BE IN ITS FINAL FORM AND MAY BE UPDATED.
KYRA PHILLIPS, CNN ANCHOR: After a holiday break, jurors are back in a San Diego courtroom this hour for the penalty phase in David Westerfield's trial. Westerfield was convicted of kidnapping and killing 7-year-old Danielle van Dam.
CNN national correspondent Frank Buckley is standing by with the latest from there.
Hi -- Frank.
FRANK BUCKLEY, CNN NATIONAL CORRESPONDENT: Good morning, Kyra.
David Westerfield's friends and families members once again testifying on his behalf today as the defense continues here in the penalty phase of this trial of David Westerfield.
Joining me right now to help us take a look at what we have seen so far and look ahead is Bob Grimes, a criminal defense attorney in San Diego.
Bob, so far, what's your summary of what you have seen, and where are we going?
BOB GRIMES, CRIMINAL DEFENSE ATTORNEY: The penalty phase I think has gone pretty well for the defense. They have had some very emotional testimony on behalf of Westerfield. His sister's testimony last Thursday was perhaps the most emotional part of the case for the defense. Now we are expecting to have his children testify today or tomorrow.
BUCKLEY: Some people might have made note of the fact that Westerfield didn't show any emotion during the guilt phase of this trial. He then shows emotion during the penalty phase. How will that go over with jurors?
GRIMES: I think the D.A. might argue it shows that he is insensitive to the crime and cares only about his own family; on the other hand, a lot of people have noticed that Damon van Dam, the victim's dad, showed very little emotion too, even though we know that he is feeling it. So you have to be a little cautious on leaping to conclusions about a person's demeanor when they are testifying.
BUCKLEY: We were talking earlier about the profile of most people on death row. Westerfield doesn't fit the profile, in the sense that he is a middle class guy, no previous violent background. How will that affect the jurors and also the closing by the defense attorney, Steven Feldman? GRIMES: Westerfield, if he ends up on death row with the other 600 prisoners up there -- are almost universally very different from him. Both they all have prior felony convictions, almost all of them have prior violence. And very few of them have ever raised a family; his children, Westerfield's son, was living with him at the time of the offense. So those are things that are very much in his favor. We have a very bad crime with a very young victim, Danielle, but on the other hand, the personal factors relating to him really are different from almost anyone on death row.
BUCKLEY: It seems to me that Steven Feldman, the defense attorney, is arguing this issue of residual or lingering doubt, saying to the jurors during the opening that, Look, if you have any doubt at all, you should go for life in prison without the possibility of a parole. Is that is an argument that will be heard by jurors who have already convicted David Westerfield?
GRIMES: Lingering doubt is a powerful argument these days, particularly since lot of jurors are aware that there have been many people in the United States recently who have found to not be guilty of crimes that they are convicted of. Some of them were on death row. So even though the evidence was really quite strong, I think, in the guilt phase, proving that he committed the crime beyond a reasonable doubt, I think some jurors will feel that they still might hold out some lingering doubt that there is some possibility he didn't do it. And they might be reluctant to execute him for that reason.
BUCKLEY: One final question. The judge will then, at the end of both presentations, instruct the jurors. What is, in essence -- what does he say to jurors?
GRIMES: Well, the jury instructions give the jury a little bit of a legal framework to hang their argument on. He will talk about aggravating and mitigating factors. For example, some people tend to think just because he killed a child he should be executed. The jury is going to be told it's not quite that simple; they need to put his own background and family connections into the whole balance.
And then a lot of it is really left kind of up to their own individual morals, as well. So there is some instruction, and there is a lot of individual leeway for the jurors to make their own value judgment on a human life.
BUCKLEY: Bob Grimes, thanks for insight.
As we are saying today, the defense continues with its presentation, prosecution and defense expected to wrap up tomorrow; then it will be going to the jury -- Kyra.
PHILLIPS: Frank Buckley there in San Diego. Thanks, Frank.
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