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CNN Live Today

Danielle's Killer

Aired January 03, 2003 - 11:31   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.


CAROL LIN, CNN ANCHOR: For some legal perspective into the case and what the judge will consider as he weighs the sentencing, let's turn to former federal prosecutor Roger Cossack in Washington, and a former CNN family member.
Hi, Roger.

ROGER COSSACK, FMR. FEDERAL PROSECUTOR: How are you?

I was a former state prosecutor in California, but other than that, it's a pleasure to be back in to see you.

LIN: We'll get it right.

COSSACK: Let's talk a little bit about this sentencing. What the judge has to decide today is whether or not to follow the recommendation of the jury who recommended the death sentence in this case.

In California, the judge has the right to overrule this jury, but it's hard to believe that he is going to be convinced to do so.

After all, if the jury found this man guilty and if they believe that it's beyond a reasonable doubt that he did what he was accused of, it is a terrible crime, and certainly one can understand why the jury found and recommended the death penalty.

LIN: Then on what basis then, would the judge, if he were to reverse the jury's decision envoy this, would he actually do so?

COSSACK: You know, that's a very good question, and it's an unclear answer. The judge has the right to review, as we indicated, the jury's findings. If the judge felt that the jury's findings were unduly harsh, that didn't really represent the spirit of the law, that there was a finding in this case that the judge felt was inconsistent or was wrong or in some way wanted to grant a new trial, because of, you know, many various legal reasons, that would be a reason for the judge to do so.

But remember, you know, this is the purview of the jury, and for a judge to step in and say, no, I personally don't like the death penalty, so I'm going to make it life without possibility of parole, that would not be what the judge would be allowed to do. He would have to find, or she would have to find, some legal reason why the death penalty should not be imposed. It can't be based just upon mercy for the defendant. LIN: You know that the San Diego -- excuse me, David Westerfield's attorneys are trying to bring up some what they call irregularities by the San Diego Police in their investigation as a basis for changing the sentencing, the jury's decision from the death penalty to life in prison. Do you think that the police have any case here?

COSSACK: Well, let me say this, certainly the defense is going to argue that there were irregularities, and that is what the defense's job is, to come back to the judge and say, judge, you know certain things that occurred in this case were not correct, we'd like to you review them now, we'd like you to make a motion for a new trial. That is all part of California law. They'll argue that certainly the police acted in ways that were not constitutional.

But you know, this has pretty well been argued all before and will be argued on appeal. In California, there's an automatic appeal from a death sentence, and so this case will go up on appeal, even if Westerfield decided he didn't want to appeal, it will go up on appeal to other courts. In California, not unlike a lot of other states, people spend a great deal of time on death row. He is 50 years old. It's not unusual for someone to spend seven to 10 years on death row before anything happens to them.

So it's hard to say, you know whether or not this is going to be any changes will be made at this level. If you asked me to predict, I would say certainly not, because there will appeal, and the judges normally feel let a higher court of appeal review this rather than me, the trial judge, get involved.

LIN: Right, and the Ninth Circuit Court of Appeals tends to be very deliberate, tend to send a lot of decisions back down for review for lower courts, so that's why in California it seems to take so much time to process these appeals, so you're right, they are going to be hearing from his attorneys.

COSSACK: Carol, yes, let me just tell you that you're right about the Ninth Circuit. The Ninth Circuit would not be the reviewing judge in this circuit in this particular case, although you are right in describing it as the federal reviewing circuit. This is a state case. This is a state of California case. This will go intermediately to the district court of appeal, which is the state intermediate court of appeal, and then if there is an appeal from that, it would go to the California Supreme Court. Now if it went on from there because of some federal constitutional issue, it could end up in the Ninth Circuit, or it could even end up in the United States Supreme Court.

But initially, it will start off in the state court, in the California district court of appeal, and then work its way through the appeal process that way.

LIN: What do you make of Brenda Van Dam's opportunity, the victim's mother, to actually make some sort of statement today? We've already heard from her in the trial, and apparently, whatever she says is not necessarily going to have any kind of legal impact on the case. COSSACK: You know, Brenda Van Dam, as you know, and the Van Dam Family were in some ways part of the defense of this case. Their lifestyle was put on trial as much as Westerfield was put on trial, and the evidence came out that indicated that their lifestyle was somewhat unusual.

Victims' impact statements are something we are seeing more and more of. I suppose that, you know, look, no matter what you want to say about her lifestyle, she has had happen to her and her husband the most tragic of all events, the loss and murder of a child. So in some ways, it's a catharsis. It's certainly indicated under California law that she can get up and speak to the judge and tell the judge how much pain that she has suffered from the loss of her little girl, both her entire family I'm sure, and what this has done to her family, and urge the judge not to change the recommendation of the jury.

So I mean, that's what I expect, and you know, she will have, obviously, the opportunity and the ability to do so, and it's under the law and she should have that opportunity.

LIN: All right, and hopefully we'll hear from her soon, very soon.

Roger Cossack, good to see you. We'll bring you back in when we have our live coverage begin, which we're hoping will be any moment now. But so far, the hearing hasn't started yet. Thanks so much.

COSSACK: Thank you.

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 January 3, 2003 - 11:31   ET
THIS IS A RUSH TRANSCRIPT. THIS COPY MAY NOT BE IN ITS FINAL FORM AND MAY BE UPDATED.
CAROL LIN, CNN ANCHOR: For some legal perspective into the case and what the judge will consider as he weighs the sentencing, let's turn to former federal prosecutor Roger Cossack in Washington, and a former CNN family member.
Hi, Roger.

ROGER COSSACK, FMR. FEDERAL PROSECUTOR: How are you?

I was a former state prosecutor in California, but other than that, it's a pleasure to be back in to see you.

LIN: We'll get it right.

COSSACK: Let's talk a little bit about this sentencing. What the judge has to decide today is whether or not to follow the recommendation of the jury who recommended the death sentence in this case.

In California, the judge has the right to overrule this jury, but it's hard to believe that he is going to be convinced to do so.

After all, if the jury found this man guilty and if they believe that it's beyond a reasonable doubt that he did what he was accused of, it is a terrible crime, and certainly one can understand why the jury found and recommended the death penalty.

LIN: Then on what basis then, would the judge, if he were to reverse the jury's decision envoy this, would he actually do so?

COSSACK: You know, that's a very good question, and it's an unclear answer. The judge has the right to review, as we indicated, the jury's findings. If the judge felt that the jury's findings were unduly harsh, that didn't really represent the spirit of the law, that there was a finding in this case that the judge felt was inconsistent or was wrong or in some way wanted to grant a new trial, because of, you know, many various legal reasons, that would be a reason for the judge to do so.

But remember, you know, this is the purview of the jury, and for a judge to step in and say, no, I personally don't like the death penalty, so I'm going to make it life without possibility of parole, that would not be what the judge would be allowed to do. He would have to find, or she would have to find, some legal reason why the death penalty should not be imposed. It can't be based just upon mercy for the defendant. LIN: You know that the San Diego -- excuse me, David Westerfield's attorneys are trying to bring up some what they call irregularities by the San Diego Police in their investigation as a basis for changing the sentencing, the jury's decision from the death penalty to life in prison. Do you think that the police have any case here?

COSSACK: Well, let me say this, certainly the defense is going to argue that there were irregularities, and that is what the defense's job is, to come back to the judge and say, judge, you know certain things that occurred in this case were not correct, we'd like to you review them now, we'd like you to make a motion for a new trial. That is all part of California law. They'll argue that certainly the police acted in ways that were not constitutional.

But you know, this has pretty well been argued all before and will be argued on appeal. In California, there's an automatic appeal from a death sentence, and so this case will go up on appeal, even if Westerfield decided he didn't want to appeal, it will go up on appeal to other courts. In California, not unlike a lot of other states, people spend a great deal of time on death row. He is 50 years old. It's not unusual for someone to spend seven to 10 years on death row before anything happens to them.

So it's hard to say, you know whether or not this is going to be any changes will be made at this level. If you asked me to predict, I would say certainly not, because there will appeal, and the judges normally feel let a higher court of appeal review this rather than me, the trial judge, get involved.

LIN: Right, and the Ninth Circuit Court of Appeals tends to be very deliberate, tend to send a lot of decisions back down for review for lower courts, so that's why in California it seems to take so much time to process these appeals, so you're right, they are going to be hearing from his attorneys.

COSSACK: Carol, yes, let me just tell you that you're right about the Ninth Circuit. The Ninth Circuit would not be the reviewing judge in this circuit in this particular case, although you are right in describing it as the federal reviewing circuit. This is a state case. This is a state of California case. This will go intermediately to the district court of appeal, which is the state intermediate court of appeal, and then if there is an appeal from that, it would go to the California Supreme Court. Now if it went on from there because of some federal constitutional issue, it could end up in the Ninth Circuit, or it could even end up in the United States Supreme Court.

But initially, it will start off in the state court, in the California district court of appeal, and then work its way through the appeal process that way.

LIN: What do you make of Brenda Van Dam's opportunity, the victim's mother, to actually make some sort of statement today? We've already heard from her in the trial, and apparently, whatever she says is not necessarily going to have any kind of legal impact on the case. COSSACK: You know, Brenda Van Dam, as you know, and the Van Dam Family were in some ways part of the defense of this case. Their lifestyle was put on trial as much as Westerfield was put on trial, and the evidence came out that indicated that their lifestyle was somewhat unusual.

Victims' impact statements are something we are seeing more and more of. I suppose that, you know, look, no matter what you want to say about her lifestyle, she has had happen to her and her husband the most tragic of all events, the loss and murder of a child. So in some ways, it's a catharsis. It's certainly indicated under California law that she can get up and speak to the judge and tell the judge how much pain that she has suffered from the loss of her little girl, both her entire family I'm sure, and what this has done to her family, and urge the judge not to change the recommendation of the jury.

So I mean, that's what I expect, and you know, she will have, obviously, the opportunity and the ability to do so, and it's under the law and she should have that opportunity.

LIN: All right, and hopefully we'll hear from her soon, very soon.

Roger Cossack, good to see you. We'll bring you back in when we have our live coverage begin, which we're hoping will be any moment now. But so far, the hearing hasn't started yet. Thanks so much.

COSSACK: Thank you.

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