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Westerfield Faces Death Penalty or Life Imprisonment

Aired August 22, 2002 - 14:32   ET

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

ANDERSON COOPER, CNN ANCHOR: Well, life in prison or death by injection. That is the next decision facing jurors in the David Westerfield trial. Just yesterday Westerfield was convicted of kidnapping and killing 7-year-old Danielle van Dam. With more on what we can expect in the penalty phase, we turn to CNN Legal Analyst Jeffrey Toobin, who is in New York. Hi, Jeffrey.
JEFFREY TOOBIN, CNN LEGAL ANALYST: Hi, Anderson.

COOPER: So next week what should we expect? What do we look for in the courtroom?

TOOBIN: Well, the -- we know two things for sure: one is that the parents of Danielle van Dam will testify for the prosecution and say what her loss meant to them. And that will surely be very emotional, and we'll also hear from friends, associates, family of David Westerfield, who will say that he is more than just the worst thing he ever did.

But boy, Anderson, I just checked on the cnn.com Web site which is doing a poll -- it's unscientific -- about whether Westerfield should get the death penalty, and 85 percent of the people say he should get the death penalty, so I think it gives you some idea of what the defense is up against.

COOPER: Does the jury know -- does it have to make a unanimous decision? Does every juror have to say he should get the death penalty?

TOOBIN: Absolutely. And that's often difficult in death penalty cases. Often you will see when someone doesn't get the death penalty, the jury will split eight to four for the death penalty, or 10 to two. It is one of these situations, it is not like guilt or innocence, where you have to come to some unanimous conclusion to end the trial. If some jurors oppose the death penalty, it's over and he gets life in prison.

COOPER: So there's no way -- even if one juror opposes the death penalty, there is no way he can get it?

TOOBIN: That appears to be right. There is some possibility under California law of the judge overruling the jury, but I think under the Supreme Court decision that just happened this summer, the end of the term in June, that wouldn't be upheld as constitutional. So I think all 12 jurors have to agree or there's no death penalty.

COOPER: David Westerfield, 50 years old -- I mean, what is the likelihood he's actually -- if he is even convicted of the death penalty that he would actually be put to death by the state?

TOOBIN: Well, that's what sort of ironic about this discussion. The death penalty moves so slowly in California. There are 611 people on death row in California, and California is executing people at about a rate of one a year. If you do the math, a 50-year-old man wouldn't make it to be executed in this sort of environment. There is no sign that that pace is going to speed up any time soon, so remember, the only question here is whether he dies in prison of natural causes or of being executed. The odds seem to favor natural causes no matter what the jury decides next week.

COOPER: And if he is to be executed, it would be by lethal injection?

TOOBIN: In fact there was a famous case in California where some judge -- where some prison inmates said that the gas chamber was cruel and unusual punishment. And a couple of judges agreed with that. In response to that lawsuit, California changed their system, so they have lethal injection now, as do almost all the states that have the death penalty.

COOPER: All right. Well, it goes to the jury on Wednesday. Jeffrey Toobin, thanks very much.

TOOBIN: See ya, Anderson.

COOPER: All right, what do you think? Should David Westerfield be sentenced to the death for the murder of Danielle van Dam? Take the quick vote, head to cnn.com. AOL keyword is CNN. Right now, as Jeffrey just pointed out, 84 percent of those casting ballots say yes, he should receive the death penalty. A reminder, this poll is not scientific.

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