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Westerfield Jury Does Sudden About Face

Aired September 17, 2002 - 10:29   ET

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

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


LEON HARRIS, CNN ANCHOR: A jury in San Diego has already wrestled with its life or death decision in the case of David Westerfield. The self-employed engineer showed no emotion as the jury's recommendation of death was read.
The same jurors who found him guilty of kidnapping and murdering his 7-year-old neighbor, Danielle van Dam, say that he should die by lethal injection. The jury foreman, who didn't want his last name used, says the decision cause much soul searching.

(BEGIN VIDEO CLIP)

UNIDENTIFIED MALE: Each person had to come to peace with that decision. You know, you sort of enter into this thing, you know, possibly knowing that you are for the death penalty, but you have never been put to the test in terms of making a vote on it, and everybody had to go through that step in their mind, of holy cow, this is real.

(END VIDEO CLIP)

HARRIS: Well, the judge in the case must now decide whether to accept it or reject the jury's recommendation of death, and the hearing is scheduled in late November on all that.

Let's get some legal perspective on this case right now. Joining us for that is CNN Legal Analyst Jeffrey Toobin -- good to see you again, Jeff.

JEFFREY TOOBIN, CNN LEGAL ANALYST: Hey, Leon.

HARRIS: First of all, let me ask you about the jury's deliberations on this case. As I understand it, it just sounded a bit weird. You know, there was that long break because a juror had been out sick, and then they came back and they deliberated for a while. Went to the judge, as I understand it, and said, we are dead-locked, we won't be able to reach a decision. They want a break for lunch, they go away for 10 minutes, they come back and say, OK, fine. We have reached a decision.

Does that sound strange, or is that the kind of thing you would except to see happen in case like this?

TOOBIN: It is strange, but it is not all that unusual. When jury deliberations come down to the end, you often have one or two jurors who are hold-outs, and it is not what other jurors say at that point, it is just the accumulation of time, the rise of pressure -- much of it self imposed -- and often, jurors will just -- a dam will break and they will change their mind.

The interesting thing here is they asked for an instruction from the judge, the judge never gave it, but the jurors still came around to a unanimous verdict shortly afterwards.

I don't really think it offers any grounds for an appeal. It is just one of those unusual things that happens. Not so unusual, but one of those somewhat unusual things that happens when trials come down to an end.

HARRIS: All right. Well, for a lay person like myself, I hear that and I think somebody must have caved at the last minute or said, OK, fine, I have had enough of this and want to get out of here, and not necessarily fully considering all of the evidence.

TOOBIN: It is possible. I don't -- these jurors have been at work for a long time. Remember, the jury was out for ten days on guilt or innocence. They were out for more than four full deliberation days on the death penalty. That's a long time. So I would give them the benefit of the doubt, at least that the jurors considered all of the evidence.

HARRIS: All right. Now, as I understand it, the judge still has a choice here. He doesn't necessarily have to accept this verdict. Is it likely that will, or that he won't?

TOOBIN: It is very likely that he will. It is very much the rule, the custom, to accept jury verdicts on the death penalty. It is a long way from his execution date, but I think at this stage, it is very likely that the judge -- I don't see any pressing legal reason to overturn this verdict, and I think if it is overturned, it will be in the appeals process, not by Judge Mudd.

HARRIS: All right. Now, having said all that, just in case any of those jurors who were deliberating, sitting on the fence, had some problems with that, they may be heartened to read this morning the San Diego "Union-Tribune." Have you seen this article, Jeffrey?

TOOBIN: I did, I just took a look.

HARRIS: This is very interesting to me. It says here -- they are reporting that officials there are saying -- have divulged that up until the moment before that girl's body was found, his attorneys, Westerfield's attorneys, were trying to negotiate a plea bargain where he would be guaranteed that he would serve only life in prison, would not get death, if he were to tell them where the body was hidden, and then they were about to reach an agreement on that, and then they noticed that the press had gathered outside to announce that the body had been found and the deal was taken off the table. That sounds a bit troubling to me, particularly when you think that his defense attorneys were admitting, in a sense, of working out this kind of a deal, that they knew that he knew where the body was.

TOOBIN: Well, Leon, this is the sort of gritty reality of how the criminal justice system works. Criminal defense attorneys are obliged to do the best job they possibly can for their client. HARRIS: Even if they know the client is guilty?

TOOBIN: Even if they know the client is guilty. Leon, that happens most of the time. Most of the time they know the client is guilty, but they have to put the system to the test, and here you have a situation where -- you can also understand the motivation of the police because they want to give the parents, you know, I hate to use the word "closure," but at least the opportunity to find their daughter's body, so they take the death penalty off the table, but the search beat Westerfield's lawyers to the punch.

It is a tough decision, but you are right, that the jurors can feel some solace that they obviously got this one right.

HARRIS: Buddy, you know, I got no problem with you guys, but you can understand why people may have problems with lawyers sometimes...

TOOBIN: Oh, boy.

HARRIS: ... if they can sit here -- if they can sit here and admit in negotiations that we know this guy knows where the body is, and therefore he must be guilty, and we are going to go out here and do our best we can to get him out of it.

TOOBIN: Leon, I'm a journalist and a lawyer. You can imagine how much people hate me.

(LAUGHTER)

HARRIS: Not here, pal. Jeffrey Toobin. Thanks, as always. Good talking to you. We'll see you later on.

TO ORDER A VIDEO OF THIS TRANSCRIPT, PLEASE CALL 800-CNN-NEWS OR USE OUR SECURE ONLINE ORDER FORM LOCATED AT www.fdch.com






Aired September 17, 2002 - 10:29   ET
THIS IS A RUSH TRANSCRIPT. THIS COPY MAY NOT BE IN ITS FINAL FORM AND MAY BE UPDATED.
LEON HARRIS, CNN ANCHOR: A jury in San Diego has already wrestled with its life or death decision in the case of David Westerfield. The self-employed engineer showed no emotion as the jury's recommendation of death was read.
The same jurors who found him guilty of kidnapping and murdering his 7-year-old neighbor, Danielle van Dam, say that he should die by lethal injection. The jury foreman, who didn't want his last name used, says the decision cause much soul searching.

(BEGIN VIDEO CLIP)

UNIDENTIFIED MALE: Each person had to come to peace with that decision. You know, you sort of enter into this thing, you know, possibly knowing that you are for the death penalty, but you have never been put to the test in terms of making a vote on it, and everybody had to go through that step in their mind, of holy cow, this is real.

(END VIDEO CLIP)

HARRIS: Well, the judge in the case must now decide whether to accept it or reject the jury's recommendation of death, and the hearing is scheduled in late November on all that.

Let's get some legal perspective on this case right now. Joining us for that is CNN Legal Analyst Jeffrey Toobin -- good to see you again, Jeff.

JEFFREY TOOBIN, CNN LEGAL ANALYST: Hey, Leon.

HARRIS: First of all, let me ask you about the jury's deliberations on this case. As I understand it, it just sounded a bit weird. You know, there was that long break because a juror had been out sick, and then they came back and they deliberated for a while. Went to the judge, as I understand it, and said, we are dead-locked, we won't be able to reach a decision. They want a break for lunch, they go away for 10 minutes, they come back and say, OK, fine. We have reached a decision.

Does that sound strange, or is that the kind of thing you would except to see happen in case like this?

TOOBIN: It is strange, but it is not all that unusual. When jury deliberations come down to the end, you often have one or two jurors who are hold-outs, and it is not what other jurors say at that point, it is just the accumulation of time, the rise of pressure -- much of it self imposed -- and often, jurors will just -- a dam will break and they will change their mind.

The interesting thing here is they asked for an instruction from the judge, the judge never gave it, but the jurors still came around to a unanimous verdict shortly afterwards.

I don't really think it offers any grounds for an appeal. It is just one of those unusual things that happens. Not so unusual, but one of those somewhat unusual things that happens when trials come down to an end.

HARRIS: All right. Well, for a lay person like myself, I hear that and I think somebody must have caved at the last minute or said, OK, fine, I have had enough of this and want to get out of here, and not necessarily fully considering all of the evidence.

TOOBIN: It is possible. I don't -- these jurors have been at work for a long time. Remember, the jury was out for ten days on guilt or innocence. They were out for more than four full deliberation days on the death penalty. That's a long time. So I would give them the benefit of the doubt, at least that the jurors considered all of the evidence.

HARRIS: All right. Now, as I understand it, the judge still has a choice here. He doesn't necessarily have to accept this verdict. Is it likely that will, or that he won't?

TOOBIN: It is very likely that he will. It is very much the rule, the custom, to accept jury verdicts on the death penalty. It is a long way from his execution date, but I think at this stage, it is very likely that the judge -- I don't see any pressing legal reason to overturn this verdict, and I think if it is overturned, it will be in the appeals process, not by Judge Mudd.

HARRIS: All right. Now, having said all that, just in case any of those jurors who were deliberating, sitting on the fence, had some problems with that, they may be heartened to read this morning the San Diego "Union-Tribune." Have you seen this article, Jeffrey?

TOOBIN: I did, I just took a look.

HARRIS: This is very interesting to me. It says here -- they are reporting that officials there are saying -- have divulged that up until the moment before that girl's body was found, his attorneys, Westerfield's attorneys, were trying to negotiate a plea bargain where he would be guaranteed that he would serve only life in prison, would not get death, if he were to tell them where the body was hidden, and then they were about to reach an agreement on that, and then they noticed that the press had gathered outside to announce that the body had been found and the deal was taken off the table. That sounds a bit troubling to me, particularly when you think that his defense attorneys were admitting, in a sense, of working out this kind of a deal, that they knew that he knew where the body was.

TOOBIN: Well, Leon, this is the sort of gritty reality of how the criminal justice system works. Criminal defense attorneys are obliged to do the best job they possibly can for their client. HARRIS: Even if they know the client is guilty?

TOOBIN: Even if they know the client is guilty. Leon, that happens most of the time. Most of the time they know the client is guilty, but they have to put the system to the test, and here you have a situation where -- you can also understand the motivation of the police because they want to give the parents, you know, I hate to use the word "closure," but at least the opportunity to find their daughter's body, so they take the death penalty off the table, but the search beat Westerfield's lawyers to the punch.

It is a tough decision, but you are right, that the jurors can feel some solace that they obviously got this one right.

HARRIS: Buddy, you know, I got no problem with you guys, but you can understand why people may have problems with lawyers sometimes...

TOOBIN: Oh, boy.

HARRIS: ... if they can sit here -- if they can sit here and admit in negotiations that we know this guy knows where the body is, and therefore he must be guilty, and we are going to go out here and do our best we can to get him out of it.

TOOBIN: Leon, I'm a journalist and a lawyer. You can imagine how much people hate me.

(LAUGHTER)

HARRIS: Not here, pal. Jeffrey Toobin. Thanks, as always. Good talking to you. We'll see you later on.

TO ORDER A VIDEO OF THIS TRANSCRIPT, PLEASE CALL 800-CNN-NEWS OR USE OUR SECURE ONLINE ORDER FORM LOCATED AT www.fdch.com