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CNN Larry King Live

Expert Panel Discusses Westerfield Trial Verdict

Aired August 21, 2002 - 21:00   ET


KING: Tonight: guilty of an unspeakable crime, David Westerfield, age 50, convicted today in San Diego of kidnapping and murdering his 7-year-old neighbor, Danielle van Dam. Also guilty of possessing child pornography.
The six-man/six-woman jury delivered a unanimous verdict on its tenth day of deliberations. Has justice been done? Should Westerfield get the death penalty or life in prison at taxpayer expense? With us tonight, Court TV host Nancy Grace, former prosecutor.

Defense attorney Mark Geragos who, last night on this show, predicted a verdict this morning. Also with us jury consultant Jo- Ellan Dimitrius. Child safety advocate Marc Klaas, whose daughter Polly was kidnapped and murdered in 1993, and forensic psychologist Veronica Thomas, and in San Diego Steve Fiorina, who's covered this very dramatic story for his station, KGTV.

The van Dam verdict and your phone calls next on LARRY KING LIVE.

Let's go first to Steve -- oh, by the way, Lisa Beamer was due to be our guest tonight. She will be on Friday night. Lisa Beamer will air Friday night. Tomorrow night Matthew Perry. Let's start with Steve Fiorina outside the courtroom in San Diego where he covered this trial from the get-go. He was in the courtroom when the jury was -- came in and paneled and announced their verdict. What was that like, Steve?

STEVEN FIORINA, COVERING VAN DAM TRIAL FOR KGTV: Larry, the courtroom was very quiet as the bailiff picked up the verdict forms and handed them to the judge. He read them over, gave them to the clerk to be read. David Westerfield sat quietly and didn't do much until the word guilty came out. Brenda van Dam and David van Dam (ph) came into the court room very pale, very nervous. This is the day they've been waiting for for so long. But much more difficult than they ever expected it to be.

As that word guilty was read out Westerfield swallowed once very hard and then kind of glanced every once in a while at the jurors. But he just sat basically, I think, alone in his thoughts. Brenda van Dam, as soon as the word guilty was announced, let out a sob, then another one after that. She took her head down. She brought her hands up. She didn't quite bury her face in it.

Then she turned to Damon (ph), buried her face in his shoulder and then cried throughout. The jurors were not without their emotion, either. As they came in, they had looks of determination on their face. They sat down and then after that verdict, the four verdicts were read, guilty, guilty with special circumstances, guilty of kidnapping, guilty of child porn. Then they were asked to be polled.

Each individual juror had to say yes, I agree with that decision. During that time one of the jurors was wiping away tears with his fingers. Another alternate grabbed a box of kleenex but he decided not to use that. Then I saw another juror down at the other end with kleenex in her hand, wiping her eyes. So it's been very difficult for all of them, and they know it's not over. They have to come back for the penalty phase, which will start next Wednesday morning.

KING: Mark Geragos, how did you know it would be today? Good guess.

MARK GERAGOS: Oh, we talked about it last night, when we were talking with Marc Klaas, and that I did not think -- it didn't look to me, at least, to be a hung jury, because of the way they were asking for the exhibits.

It wasn't random. They were asking for things that seemed to go in chronological order, and it looked to me like whoever the foreman was was asking for or going through things on a piece by piece or witness by witness basis. If that was the case, they were towards the end of the case. Ten days is about right, and plus they've got the Labor Day weekend coming up.

And if you don't think jurors think about things like that, you haven't been around the courts much.

KING: That's next weekend.

GERAGOS: Right. They know they've going to get a recess, they're going to get their four-day weekend or five-day weekend before they go into hearing this penalty phase.

KING: But the Labor Day weekend is after that.

GERAGOS: Now, the Labor day weekend is what they're going to go into. That's what they're going into.

KING: Nancy Grace, I guess they finally met your expectations. In retrospect, did this jury do its job?

NANCY GRACE, FORMER PROSECUTOR: Yes, they really did, Larry. And last night, when we were talking about when the verdict was going to come in, I had hoped earlier. And I hated to make a prediction on when a verdict would come back, because I thought I would only be disappointed.

But long story short, tonight, as everybody left the courtroom today, lot of sobs, lot of emotion. There are still broken hearts as a result of this case, but tonight I feel proud after watching all the evidence come in day after day, after living through this with the parents basically, I'm proud of the system tonight. KING: Jo-Ellan, what were your thoughts today? This jury do its job?

JO-ELLAN DIMITRIUS, JURY CONSULTANT: It certainly did its job and it did so very carefully, very conscientiously. I don't think there's anyone that can fault or should fault this jury. I know there's been a lot of criticism of them, but it's a very intelligent jury that wanted to go through everything methodically. They did so. And ultimately they know that they face the penalty phase next, which will also be a very difficult and very emotional aspect for them.

KING: And that will take some days, too, won't it?

DIMITRIUS: In terms of the presentation or the deliberation?

KING: The whole thing.

DIMITRIUS: Absolutely.

KING: Mark Klaas, what's your analysis?

MARC KLAAS, DAUGHTER ABDUCTED & KILLED IN '93: I agree with everything that's been said, Larry. They were very, very careful in their deliberation, and I think that they wanted the world and they wanted the court to take them seriously. They showed -- they are showing so much more consideration for the life of David Westerfield than he ever showed for his victim.

I think that's what separates us from people like him. They know that this is -- they know that this -- they know how important this is.

GERAGOS: And you know, that's exactly right. That's what, Marc, that's what was so, at least from my standpoint, what's been so frustrating about people taking pot shots at the jury, that I think what separates us as a civilized society from, you know, people who are sub-civilized, if you will, is that we go through that. We do this, and we have a system, and it holds up.

KING: Dr. Thomas, you're a forensic psychologist. You teach abnormal psychology. You got to observe Mr. Westerfield. What's your read on that?

VERONICA THOMAS, PH.D. FORENSIC PSYCHOLOGIST: Well, that's a very complicated person, and when you look at all of the things that this jury had to take into consideration with regard to the paraphilic issues, the pedophilia, the psycho-pathology that is so complex about this defendant, you have to give them a lot of credit for having to grapple with issues that most people never have to deal with in their entire lives.

So when one looks at him, we see people that live next door to us and down the street. It's hard to tell by looking.

Pedophiliacs rarely kill, is that correct? THOMAS: Yes, it's very atypical. So we want to be sure to separate this crime from the usual kind of pedophile or child molester that we see.

KING: All right, now the penalty phase. Do you want to explain, Mark, what happens? Mark Geragos.

GERAGOS: The penalty phase is going to be where the prosecution puts on what they consider aggravating circumstances, aggravating factors. Then the defense will put on what they believe to be mitigating. Then the jury will go back and they will make a decision. They only have two choices.

They either vote for the death penalty or they vote for life without parole. Now, right now, the worst that is going to happen -- as soon as they came back with special circumstances today, that means that the least that he's going to do right now, barring the judge granting a motion for a new trial, barring somebody else stepping into the court of appeal, is he's going to spend the rest of his life in prison.

So the only other alternative right now is death. And that, depending on what's presented, obviously -- none of us have heard what they're going to present -- that's where I believe you will see a real struggle amongst the jurors.

KING: And it will take only one juror to see that he spends life.

GERAGOS: One juror -- right, one juror holds out, and then that means that the prosecution's left with, do we retry the penalty phase or do we just say, OK, we're satisfied with life without? That's what the issue will become. And that is usually a very, very difficult -- not that this has been easy for this jury, but that's one of the hardest things in the world, to put a juror in that position.

KING: Because, Nancy Grace, they're saying kill him, right? When they vote unanimously, they're saying to the state, put him away.

GRACE: Exactly, and the little quirk in California law is this. In many, many jurisdictions if a jury is hung at penalty phase, in other words they can't decide life, they can't decide death, a judge has to give life.

A judge will not sentence to death under the law. In California, if they hang, the prosecution can choose to retry the penalty phase. I predict that's what would happen in this case. And what I think we will see in the penalty phase for aggravation, we will hear everything that was disallowed at the guilt/innocence phase come in in the penalty phase.

GERAGOS: That's absolutely right. It's a free-for-all at this point.

GRACE: It's a mud fight. KING: Let me ask also about those witnesses who might plead for his not getting killed and those who might want him to be killed, who are not part of this. Let me take a break and we'll ask about that. We'll be right back with our panel. Your phone calls will be included. Don't go away.


We the jury in the (UNINTELLIGIBLE) find the defendant, David Alan Westerfield, guilty of the crime of murder in violation of penal code section code 187, paren A, as charged in count one of the information. As (UNINTELLIGIBLE) degree thereof, as murder in the first degree.



KING: Steve Fiorina, any indication how long the penalty phase will take?

FIORINA: I talked to the district attorney's office today. There is a gag order on it, as you know. But in general, they say they expect about a week, perhaps a little less. But it is a two- sided coin here. The defense says it has at least 10 out of state witnesses it would like to bring in. So there could be a little bit of give and take there as well as some delays as travel plans are made.

Also, we've gotten a little bit of a hint from the defense, a couple of things we may see them do. They, as you know, during Westerfield's interview with police, they made a point of his claiming to have been so drunk that night that Danielle was kidnapped that he doesn't even remember driving home. One of his friends who was at that bar that night was interviewed by police about that incident. And two days after her police interview, she called the police back and says, oh, I forgot to tell you, he was really drunk when he left that night. So that is likely to be something that is brought up during this process. Also...

KING: I'm sorry. Go ahead. No, you can finish. Go ahead, Steve.

FIORINA: Well, the defense has indicated it plans also another avenue of attack here. It says by Monday, they hope to have some kind of an appeal filed. They're trying to challenge state law to narrow the field of defendants who could face the death penalty. So I don't know how that would fit in, time frame. This is an event that's already occurred, how that could possibly impact this. But they've got some hopes hanging on that.

KING: Jo-Ellan, what do they talk about in the jury room in the case when they're dealing with life? I mean, what's the barometer?

DIMITRIUS: They talk about everything from cost of keeping a prisoner alive versus the death penalty. They talk about... KING: Is it more to kill them?

DIMITRIUS: There's actually have been studies that have been done that say that it is more to kill them because with the appellate process and the cost of the appellate process, it costs more than keeping an inmate there for the rest of his life.

KING: What's their -- do they -- what do they look at? What will happen to him in jail...

DIMITRIUS: Sure. Sure. I mean, I think that it's general common knowledge that a child molester -- there's a caste system within prisons that he'll probably be taken out, if he gets life without parole, he'll probably be taken out before he reaches the end of his life.

KING: Nancy, does a prosecutor really get warmed up to the death penalty? I mean, is it that important to them if it's going to be life without parole or death?

GRACE: Larry, it means everything.

KING: To the prosecutor, it means everything?

GRACE: Well, yeah. When you look at what this child went through, when you look at the probable rape, the probable sodomy. How many times do you think she begged to go home to her mother instead of driving around in the desert in an RV with David Westerfield. When she was found, her teeth were down her throat from her mode of death. Yeah, it matters. It matters a lot. And I hope they argue he was too drunk, voluntarily intoxicated. I hope they use that as a defense. That jury will kick that down the courthouse sidewalk.

KING: All right. So, the prosecutor should be vehement in wanting to get the death penalty?

GRACE: Well, in cases like this, Larry, where you've got a child...

KING: Yes, that's what I mean.

GRACE: Yes, you're darn right. If you are going to uphold the law and the law is the death penalty, either the heat's too hot in the kitchen, get out, if you can't handle a death penalty case in prosecution. Leave it to somebody else.

KING: Marc Klaas, does it matter that much to the parent? They're not going to get the child back. Is it important whether this person lives or dies, do you think? In your case, is that important?

KLAAS: Yeah, it was very important because, you know, to allow him to live after the crime he committed against my daughter, if they allowed him to live, that would have really, I believe, diminished my daughter's life. It would have given more value to the life of a killer than to the life of a victim. He doesn't have any consideration for the value of life. You know what, Larry? Perhaps if this guy ever takes that final walk to the gurney and he does finally understand the value of life, it will have been a lesson very well learned.

KING: What's the thinking, Dr. Thomas, with regard to pedophilia who commit murder and the death penalty, whether they, does that -- is that an equal gambit?

THOMAS: Well, killing is killing. And a pedophile is really not somebody who's inclined to kill.

KING: Yes, but Nancy's point is this is a defenseless child. This ain't killing the liquor store clerk who's chasing you out of the store.

THOMAS: That's true. We have a person who is a predator, whose interest is in robbing the innocence out of all of us. And that's what happens when a child becomes a victim like this. And it charges everybody up. And we're all outraged. We're all so upset about that.

KING: Do the defense attorney, his job now is to save his client's life, right? Have you ever been in that position?

GERAGOS: I have -- luckily for me, I have never had a client -- the one client I have ever had who was found guilty of special circumstances, I was able to get the judge to throw the verdict out before we got to the penalty phase.

KING: So, you never had to argue a penalty phase.

GERAGOS: Never had to argue a penalty phase.

KING: Do you imagine that's more difficult than a trial?

GERAGOS: There's more pressure on it. My father, who's my partner, has done that on numerous occasions, both as a D.A. and a defense lawyer. And he has candidly -- when he says that it's one of the toughest things you have to do. This is a case that is especially tough because all of -- or a lot of the arguments that are made against the death penalty kind of fall by the wayside because if there ever was a crime that the death penalty was designed for, this is the type of crime. So, it's tough to get around that.

Jo-Ellan had hit on, I think, one of the arguments that intuitively a lot of jurors are going to think about is, if this guy's given life without, especially this particular defendant, this is a guy who's not going to survive. He's just going to be -- they're going to take him apart. He will be done with.


GRACE: No, he won't. He'll be segregated. He'll have three great meals. He'll write poetry. He'll have a Web site.

GERAGOS: If he's on death row...

KING: One at a time, Nancy. One at a time.

GERAGOS: Nancy, just calm yourself for a second. If he's put on death row, he's got a much better chance of surviving than if he's got a life without. Life without does not segregate.

GRACE: Charles Manson has a Web site. He's making money.

GERAGOS: I'm telling you. The life without for somebody like this is a death sentence in itself.

KING: Marc Klaas, you're saying no.

KLAAS: Well, it's yes and no. In California, they segregate these sex offenders. They put them in a prison, in a city called Corcoran. So, you've got a whole population of characters like him. But it is kind of ironic, and Mark is absolutely right about this. These guys extend their lives by a long time by going on death row, where they are under a form of protective custody, where they are in a cell all by themselves. So, you know, it's a sad irony, but it is an irony.

GERAGOS: It is an irony. The quality of life for a death row inmate is infinitely better than it is for somebody who's on life without.

KING: And you can last a long time, right?

GERAGOS: You can -- look, the practical matter is out of the 600 some odd people who are on death row, the majority have been there for over a decade. So, as a practical matter, from a taxpayer standpoint, these are people who are not going to be executed.


GRACE: This is not about taxes. This is not about taxes, OK. You know, I pay 50 percent of my money. I don't know where it goes. This is not about taxes. This is about a dead girl. Don't even talk to me about taxes. I can't believe you even said that.

GERAGOS: I'm talking to you about reality. I'm talking to you about the reality of the situation that everybody knows.

GRACE: Well, the reality is that sex offenders are segregated, too. They're not going to be punished behind bars.

GERAGOS: I am telling you that in this system, the people who are sentenced to life without parole are not safe. These are people who are not going to survive. These are people who are going to live an awful life, and a life that I think most jurors are going to know intuitively about.

KING: Jo-Ellan, where do you stand on this?

DIMITRIUS: Well, I totally agree with Mark, and I think that's ultimately what these jurors are going to be talking about. What will be the worst punishment? Will the worst punishment for this man be the death penalty where over a decade, maybe 20 years later, maybe he gets the death penalty, or will it be the fact that he will be in a segregated population, he won't be able to do anything, and, you know, literally he has to look behind his back any time he gets out.

KING: Is there any history, Steve, in San Diego County regarding trials of a nature where they go to the penalty phase?

FIORINA: Well, there was a death penalty case, say, 15 years ago. That man is still in the appeals stage, early part of the appeals stage. He's just now getting into one of the courts that will hear his appeal. He was convicted of three murders and charged with three additional ones. That was another case that Steven Feldman and Woody Clark (ph) were both involved in.

One thing, once the announcement was made today, Westerfield was taken over to the county jail. He is reported to be under close, quote, "close watch." That's basically suicide watch. He is on the third floor, directly across from where the deputies have their station. So, he is under very close scrutiny at this hour.

DIMITRIUS: Larry, I can share with you some statistics about the death penalty and the penalty phase for the last five years in San Diego. There have been 16 cases that have gone to the penalty phase. Nine of those have come back with death verdicts.

KING: We'll take a break and be back with more. Your phone calls will be included shortly. Don't go away.


PEGGY SIRNA, COURTROOM CLERK: We, the jury in the above entitled cause, find the defendant, David Alan Westerfield, guilty of the crime of kidnapping and violation of penal code section 207 as charged in count two of the information. And we further find that the victim of the kidnapping was under the age of 14 years at the time of the commission of the kidnapping.



KING: What a situation. Do you see anything, Mark Geragos, that looked like appealable to you?

GERAGOS: You know, the issues that they're going to raise on appeal are going to revolve around the admission of the child pornography. And they're going to argue that the child pornography should not have been admitted, that that unduly prejudiced the jury.

I believe that one of the reasons that Feldman had that hearing during the deliberations of the jury and asked for the sequestration is to make a record that there was such a hue and cry surrounding what was going on during the deliberations that the jurors felt like they could not fairly come to a verdict, that they had to -- predisposed because of the publicity. So, my guess is is that that would be another argument. The problem with it is in this case is, this judge -- we said it last night, Nancy and I were both saying, has run this trial in an extremely impressive fashion. He's had to deal with what I consider some just extremely trying circumstances and the kind of circus atmosphere around it. And he really deserves a lot of credit. He's run, I think, about as tight a ship as one can hope for.

KING: Nancy Grace, would his case for life be helped if he admitted it?

GRACE: That's a tough one. At this point, I don't see any way around him admitting it because if you get in front -- this is assuming he takes the stand. He may not want a cross-examination at this point. But if he takes the stand and the jury has already come back with a guilty, he's between a rock and a hard spot. He can't say, jury, you're wrong, I'm innocent. And juries don't like to be told that they are wrong in their deliberations. They've reached a verdict.

So, he will have to admit to killing this child. He may fall back on the voluntary intoxication thing. But one last thing, I can't believe that you guys are suggesting it is better that you would choose death over life, that Westerfield somehow would get some benefit of getting death over life. It's impossible. And the other thing I want to remind you of is many people that I have that have gotten life without parole are sitting behind bars with Web sites. They're making money. They're writing songs and poetry. No, it's wrong.

KING: anybody want to counter that?

GERAGOS: You can always take the most extreme examples and try to make a general rule out of them, and Nancy is very good at that. The fact of the matter is that what will happen, I mean, as a practical matter is the -- this guy is going to be in denial. He's not going to turn around on a dime and say, yes, I did it. I mean, that's just unrealistic.

KING: The question was, if he did, would that help him?

GERAGOS: If he did, yes, it would, but it's not going to happen. He's not going to get up there and say, yes, you know, I'm pleading for mercy now. I mean, he's -- his psyche is so invested in this fact that it's a reasonable doubt defense that to turn on a dime at this point, I don't think he's got it in him. It's not in his psychological makeup to all of the sudden turn around and say, yes, I did it and give me mercy.

GRACE: Mark, Mark...

KING: What do you think is his -- hold on, Nancy. What do you think, Dr. Thomas, is his psychological makeup?

THOMAS: I think it's extraordinarily complex. This is a very sick person that was going to do this kind of a crime, regardless of... KING: Do you mean, he was leading up, that he had never killed before, right? So, it was coming to this.

THOMAS: Clearly. If we examine him and somebody takes the time and the trouble to know what his arousal pattern has been for the last several years, what his fantasies are, how many kinds of paraphilias he's had. We might very well have steps leading up to this event.

KING: Marc Klaas, looks like an everyday guy, has patents, right, on three inventions.

KLAAS: Yeah, great, you know, but he's also one of the great monsters of our time because this guy cloaks himself in the guise of a normal average everyday kind of fellow when, in fact, he's a homicidal maniac. You know, we can't believe anything this guy would ever say, Larry. We have to remember the nature of his crime. Anything that he would say in his own defense would be totally self-serving and it would just be another lie built upon the past lies.

KING: So, the jury has to judge it on what, Mark Geragos?

GERAGOS: They're going to judge it on -- I think as a practical matter, when Steve was talking about the couple of the jurors wiping tears away, I mean, that would seem to at least suggest that what Jo- Ellan was saying yesterday is that maybe there was at least some kind of a 10-2 poll. I don't know that I would ever say it was hung or split, that somebody was arguing for not guilty. If that's the case, they tend to compromise and you tend to see that.

KING: Mean, might he have said, OK, I'll give you this, but on the death thing...

GERAGOS: On the death, I'm never going to give you the death penalty. I mean, jurors do that. I mean, I have talked with jurors in other cases where they've done that and seen them testify.

KING: We're going to take a break, going to go to phone calls. And I will ask the panel how important are the witnesses in the death phase aspect, the witnesses who ask for mercy or the witnesses who ask for the total punishment. We'll be right back. And by the way, tomorrow night, Matthew Perry is our special guest. Don't go away.


UNIDENTIFIED FEMALE: Stand up. Stand up. Let's see your outfit.


UNIDENTIFIED FEMALE: OK. Back up a little bit. Spin around. Now model it. Go like that.


(COMMERCIAL BREAK) KING: We're back. Let's reintroduce our panel. In Los Angeles, Jo-Ellan Dimitrius, the jury consultant who's CEO of Vincent & Dimitrius (ph). That's one of the world's top jury and trial consulting firms.

In New York is Nancy Grace, anchor of "Trial Heat" on Court TV, former prosecutor. In Los Angeles defense attorney Mark Geragos. In New York Mark Klaas, the founder of the Klaas Kids Foundation and advocate for child protection. His daughter Polly was abducted from her home and murdered nine years ago. A parole felon named Richard Allen Davis is convicted and sentenced to death.

In San Diego, he had to leave us for a few moments, he'll be back, Steve Fiorina, the reporter for KGTV, and here in Los Angeles Dr. Veronica Thomas. She's a Ph.D. forensic psychologist and teaches abnormal psychology at the University of California at Irvine.

Let's go to calls. Houston, Texas, hello.

CALLER: Hi, my call -- my question is for the jury consultant. What's your experience with the amount of consideration that juries give to the victims' impact statement? Have they already usually made up some of their minds or is that -- I mean, is that just emotional or...

KING: The mother testifies and the father.

DIMITRIUS: Oh, there's a tremendous amount of importance that's placed on that, and I think that one of the interesting things in this case will be in the case of Mr. Westerfield. Usually what happens is the defense brings in his family to talk about all the reasons why his life should be saved.

But I'll tell you, Feldman's going to have a really difficult time because, if you recall, he brought up the son on the stand to say that it was the son's pornography. And then all of a sudden he's going to traipse in the son to say, oh, my dad's really a good guy, you know? You should save his life. So I think that's going to be a tremendous problem.

KING: You think the son may not testify, Mark?

GERAGOS: Well, I think it would be a horrible problem. I mean, you put the son up there and here's somebody who you tried to lay off the third count on, the child pornography. He got up there and quickly disabused the jury of that notion. And now what's he going to do, get up there and say, yes, but dad's a good guy. He tried to blame me for the child porn.

KING: Steve Fiorina, do we know who these out of town witnesses are?

FIORINA: No, we do not. We expect that some of them could be witnesses that would be along the lines of experts to talk about what it means or perhaps even how drunk you can be and whether it really diminishes your capabilities. There could be some relatives or possibly a former professor or someone who he really helped in the past. I don't know. There is going to be a hearing on Friday to discuss whether or not some of these witnesses would be called, and that's a closed hearing, but afterwards we may know a little more.

KING: Burlington, Ontario, hello.

CALLER: Yes, hello, Larry.


CALLER: Complimenting to the jury on a job well done. I agree with the doctor, but I was wondering could the defense plead for life in exchange for Westerfield divulging information on this case?

GERAGOS: Could they? Yes. Anything is open. You can at this point you could negotiate with the district attorney if they were open to negotiations. You could make an entreaty...

KING: Give me an example of what...

GERAGOS: I don't know. The defendant makes some kind of -- I hear Marc whispering in the background. I agree with you, Marc. The chances of that -- the chances of that are slim and none. I'm answering the question is could they do it. Yes, theoretically, they could. I agree with you without you even having to take a breath that it's not going to happen in this case.

KLAAS: Thank you.

KING: There's a great question for -- hey, Nancy, is there any circumstance under which you would listen to this defendant if you were the prosecutor if he had something to offer you?

GRACE: Well, first of all, what's left to offer? We already know what happened. The jury has ruled. What's left for him to bargain for?

GERAGOS: Another crime.

GRACE: No. There's nothing to listen for.

GERAGOS: Another crime.

KING: An unsolved crime.

GERAGOS: An unsolved crime is what he would bargain for. That's the on thing I can conceivably think of.


KING: You wouldn't but it?

GRACE: No, because this guy would definitely lie to save his own skin. I wouldn't believe anything he said. But one thing I wanted to clear up, earlier when I mentioned that so many death row inmates have a cottage industry going, and Mark Geragos said, well, you're taking an isolated example and acting like it's general, that's not true.

Well over 600 death row inmates have their own Web site, have a cottage industry and are making money. The Web sites normally through Canada.

GERAGOS: And that's exactly my point. My point is that you're better off, and in fact we were talking at the break, I believe...

GRACE: Well, which one would you rather have, life or death, Mark?

GRACE: I'm telling you right now that as a practical matter what happens...

GRACE: Don't want to answer.

GERAGOS: What happens, Nancy, is that a lot of guys, when they get convicted, a special circumstance, fire their lawyers and ask the jury to convict them and make them have the death penalty. The reason for that is that it's a better life for them. That happens with great frequency in the system.

GRACE: That's your argument for life? OK.

GERAGOS: That's my argument for life, yes.

KLAAS: But this guy has fought so desperately for his life. He's fought to the point that he's totally allowed his lawyers to vilify the family. He's thrown his own son to the wolves for his life. This guy wants nothing more than to be able to live to an old age under any circumstances. That's why he should die.

KING: Joaquin, Texas, hello.

CALLER: Yes, Larry, I have a question for the panel, any one of them. Is there any legislation pending in California that would limit the persecution of victims' family members by defense attorneys during cross-examination, such as the van Dams were persecuted?

KING: I don't know how you'd write that law.

GERAGOS: Well, there's a -- we have in California what's called the victims' bill of rights, which was enacted a number of years ago, which gives the people or the prosecution various rights, rights to a speedy trial, rights to have the victim impact statements in other areas, rights to be notified of the sentencing and things of that nature.

As far as the caller in reference to limiting the persecution, as you call it, of defense attorneys, the limit there is inherent in the evidence code. All of the things that the defense attorney did in this case. First he had to make a proffer, if you will.

He had to tell the judge why it was relevant. The judge had to rule. He's the gatekeeper of what comes in. So the judge is the one who rules based on what the evidence code is. There are periodically, after the O.J. case for one, the legislature will come in and they will limit what can be done in certain cases. In domestic violence cases, there are limitations now. Complaining witnesses or victims in domestic violence cases don't even have to be in a court room in certain situations now post-O.J. So my guess is there probably will be legislation.

KING: Mark, is there wide latitude in the penalty phase and testimony?

GERAGOS: It's an absolute free-for-all.

KING: There's very few objections sustained?

GERAGOS: Well, not in that sense. Not in that it becomes a free for all inside of the courtroom. It's a very relaxed atmosphere in terms of what evidence comes in. When we talk about the judge as a gatekeeper, the judge has got a duty to let in a lot of stuff that normally you would never get into a courtroom.

KING: I see. We'll take a break. As we go to break, the van Dams leaving court today.


KING: We're back.

Reno, Nevada, hello.

CALLER: Hi. My question is: Was there anything brought up, or not brought up, in the trial forensically that could be brought up at the penalty phase? And also, did any of you see that the brother-in- law was quoted on the Internet as saying that Westerfield thought he was going to get off?

KING: Westerfield's what?

CALLER: Westerfield's brother-in-law was quoted on the Internet as saying that he thought he was going to get off -- that Westerfield felt he was going to get off.

KING: Oh, Westerfield thought he would get off.

Can forensic be introduced, Dr. Thomas?

THOMAS: Well, forensic psychology and psychiatry might be used. The defense might...

KING: You can put on anything, right?

THOMAS: ... take a last-ditch effort to show that maybe he was psychotic or he was out of his mind, or he had some tumor or some other...

KING: But that, then, would be admitting he did it.

THOMAS: Well, certainly.

KING: Once you put that on, right?

THOMAS: Certainly.

KING: You're between a rock and a little bit of a hard place, aren't you?

Nancy, aren't you?

GRACE: Well, there is one piece of evidence that a viewer accurately pointed out last night. At the preliminary hearing a photo of the defendant's arm was brought into evidence, the jury never heard it, and that arm showed Danielle's fingerprints -- I mean, her fingernail marks on his arm.

That little girl fought. She wanted to live. And I predict that is going to come into evidence.

And the doctor on your set also asked, what were his fantasies? I already know what his fantasies were. The police seized it. There were CDs of a 7-year-old girl getting raped by two adult males, and she was screaming. And that jury heard that. They know Westerfield's fantasies.

KING: Steve Fiorina, there is no sympathy in San Diego at all in this matter, is there?

FIORINA: There is a little bit. We do get...

KING: Really?

FIORINA: ... a few e-mails, people saying that, we don't believe he's guilty, or you're railroading him.

But by and large, you saw in the videotape 10 minutes ago what a large portion of our population feels.

This part of the game's over. Now they've got to look ahead.

KING: Marc Klaas, if so few people are executed in California, isn't that a good thing in case some of them are innocent?

KLAAS: Well, I don't think that we're executing innocent people in our country. You have to remember...

KING: Well, 87 have been released from death row who would have been killed.

KLAAS: But they weren't, were they, Larry?

But I'll tell you what does happen: We release people who have been on death row. It happened in Texas, and it's happened in California. Two executions ago in California they executed a guy named Massey (ph). He had been on death row. He'd been released back into society and they had to rearrest him for another murder and they had to execute him again.

I think -- something that people have to remember: He's going to revictimize this little girl every day for the rest of his life in his fantasies. This girl's spirit is not going to be able to rest until David Westerfield dies.

KING: What do we know about him, Dr. Thomas? People like him; what do we know-know?

THOMAS: Well, what we know-know is that there's not much we can do to fix that kind of a problem. They're extraordinarily psychopathic. There's severe anger and aggression and rage and sexual dysfunction, and so much wrong.

KING: All under the looks of normalcy.

THOMAS: And -- yes. And that's why we really do want to talk about child molesting. We want to talk about what makes people do these things, because we want to prevent, as much as we can, children being victimized.

KING: And for the defense, they're up against it, aren't they Mark, in a case like this?

GERAGOS: Yes, it doesn't get any harder. So you have a situation where -- I'll go back to what I said before -- whether he's in denial. And you've had a lawyer who's there fighting tooth and nail on a reasonable doubt basis, and he's now going to turn around, who knows what the defense is going to put in in terms of mitigation.

But it just -- I'm sure -- I imagine it doesn't get any tougher than this.

KING: As a jury consultant, Jo-Ellan, what do you want for this next phase from these jurors if you were representing the defendant?

DIMITRIUS: You want emotion. You want sympathy. You want sympathy in terms of...

KING: Even though he did this?

DIMITRIUS: ... if you're working with the defense, that these jurors believe that no purpose would be served by executing him. That, you know, that life without the possibility of parole. I mean, that's ultimately what you want.

But, you know, a defense attorney, when they come to this phase in a penalty -- in a death penalty case, this is where, you know, these folks -- and there are a few of them around who, you know, go through ulcers and heart attacks and everything else because they're true believers. Many of these people are true believers.

KING: They're opposed to capital punishment from the beginning.

DIMITRIUS: Absolutely. Absolutely. And I think that Feldman is one of those people. So just, on a personal level, I can only imagine the sort of trauma he's going through.

KING: Nancy, is it going to take a long time, the penalty phase?

DIMITRIUS: No, I don't believe it will. I think that it will take about a week, about five to six days worth of testimony.

And speaking about defense attorneys getting ulcers trying to defend their clients, don't worry about this. Prosecutors that deal with child victims day-in, day-out -- and I speak from experience -- get ulcers themselves.

KING: This has been a tumultuous day in legal circles in California, and the effect is widespread. And we thank our panel. And they'll be back again during the penalty phase as well.

Jo-Ellan Dimitrius, Nancy Grace, Mark Geragos, Marc Klaas, Steve Fiorina of KGTV -- thank you for outstanding reporting, by the way -- and Dr. Veronica Thomas, forensic psychology from the University of California at Irvine.

I'll be back to tell you about tomorrow night and the weekend right after this.


KING: A wonderful actor; had some ups and downs, terrific person, too: Matthew Perry is our special guest tomorrow night.

And Lisa Beamer, who was due to be with us tonight, will be with us on Friday night.