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CNN Live Today
Things Getting Under Way in Courtroom in San Diego
Aired November 22, 2002 - 11:40 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: Right now, things are getting under way in a courtroom in San Diego, California. There, the fate of David Westerfield is going to be decided. It's all in the hands of a judge. And that judge is about to make a decision and could be happening any moment now. Rusty Dornin checks in now live from San Diego with the latest.
Rusty?
RUSTY DORNIN, CNN CORRESPONDENT: Well, Leon, before anything happens, before any kind of sentencing happens this morning, the judge is going to consider a motion to continue the sentencing and perhaps delay the entire thing. Now what prompted this was that the defense filed for a, you know, for a continuance because of an article in "San Diego Magazine" that quotes an unnamed police source, that talks about the idea that David Westerfield killed Brenda (sic) Van Dam in her bedroom and didn't actually kidnap her, that the little girl was already dead. And the quote used in that magazine was, he hit her and that was it.
Now, of course the prosecution is arguing this is purely speculative theory. There is no reason to believe there was any kind of violent assault in Danielle Van Dam's room. But the judge is going to hear and there's a representative apparently from "San Diego Magazine" in the courtroom. He is going to hear from them on this particular issue.
Also, the defense is saying they didn't have time to prepare for the sentencing, that they had too many requests from the media, that there were personal issues and a lot of other things came up, and they did not have time to file a motion for a new trial.
Now, our legal analyst Bob Grimes says that that could be the issue that might delay this sentencing, the fact that the defense did not have time to prepare for this. But we'll just have to see in the courtroom now, the defense attorney Steven Feldman is bringing forth their argument that they believe there is very good reason to delay this sentencing.
Now of course if the judge decides to go ahead and sentence today, he could go with the recommendation by the jury, which is to sentence David Westerfield to death for the kidnapping and murder of Danielle Van Dam, or he could go with the lesser penalty, which is life in prison without parole.
Now, on another issue, the family has come in with Gloria Allred who is a very high-profile attorney out of Los Angeles. Apparently they are going to hold a press conference immediately following these proceedings. We have absolutely no idea what's going to be in that press conference, whether they're going to talk about a civil lawsuit or some other kind of matter. All we know is they are going to have a press conference. So, we're not sure, Leon, whether this is going to happen today or not. We'll just have to see what the arguments bring forth this morning.
HARRIS: All right. Good deal. Thanks, Rusty. That puts some perspective out there on the table for us to consider. But let's get some more now. Thanks, Rusty Dornin in San Diego.
Let's go now to our legal analyst Jeffrey Toobin, who's in New York this morning, our bureau there.
Good morning, Jeff, good to see you. What do you make of this maneuvering we're hearing now in court? And explain to us how in the world it cam make a difference if what the defense team is saying about this statement made in "San Diego Magazine," that he just killed her in the room, still, if that's true, he did kill her. Why does that make a difference here in the sentence?
JEFFREY TOOBIN, CNN LEGAL ANALYST: Well, the defense theory is that, remember, this is murder with special circumstances. That's why it's a death penalty case. And the specific special circumstance is murder with kidnapping. If Westerfield killed Danielle Van Dam in her bedroom immediately, as soon as he saw her that night, he did not in fact kidnap her. It's just a straight murder case. The defense theory is that would remove the special circumstance and make him ineligible for the death penalty.
HARRIS: That's a strange position to be in where you say, give me some leniency, all I did was kill her.
TOOBIN: That's right, well, you know, that's why we go to law school.
HARRIS: Yes, I guess so, well, let me ask you this, about the question that Rusty raised a moment ago, about the amount of time that the defense team was given to work on this case and prepare for it. Do they have an issue there at all, do you think?
TOOBIN: They might. I mean, this has been an unusually fast case, especially by California standards. Remember, the murder itself was just in February. And here he is, he's had a trial, he's had a penalty phase, and he's about to face a death sentence. Think about Robert Blake, also in trial in California. He's been in jail for more than a year. He hasn't even had a preliminary hearing yet. This has been very fast. However, most of the speed in this case has been at the request of the defense. The defense wanted a fast trial. They wanted to catch the prosecution before it had all its evidence together. They lost that gamble and they may not be able to take advantage of it now.
HARRIS: Yes. In this case, then, it sounds like they want to have it both ways. They want to say that they want to move this trial ahead because it's their advantage to do so quickly, but then when they find out they lose, now they say we moved too quickly.
TOOBIN: They're drawing a distinction. They are saying that it's the penalty phase they haven't had time to prepare for, but you're right. It's tough to have it both ways. And the judge is likely to at least ask that question, if not deny it on that ground.
HARRIS: How about the question of what in the world is Gloria Allred going to be coming in, into this family's life, getting involved in this case? Any idea as a professional or maybe as a colleague, what do you know about that? Anything?
TOOBIN: I certainly don't know what Gloria Allred is doing. I certainly been involved in many cases where Gloria Allred has been involved. And the one thing you can be sure of is that there will be press conferences and there will probably be more than one, And so we will know very shortly what she's doing, and she will make sure that everyone in the world knows.
HARRIS: Well, we know that one press conference at least is scheduled for this afternoon, sometime today.
If that is the case, if she's being brought on, as Rusty suggested or postulated, that perhaps there is a case for the family here to pursue at some point against some other party, where do you think that could lead? Who do you think could be actually sued or held liable for anything for the family?
TOOBIN: Well, certainly, Westerfield himself could be sued. We all remember, I expect, that O.J. Simpson, even though he was acquitted, was then sued civilly by the families of Ron Goldman and Nicole Brown Simpson, and they won. Here they could sue David Westerfield. The case would obviously be much easier because he was convicted. I don't know what kind of assets David Westerfield has to pursue at this point, but certainly that's the most obvious possibility. But I'm sure Ms Allred will let us know exactly what her plans are.
HARRIS: OK. Now, let's get back to Westerfield. If the sentence that's handed down today is death, considering how quickly this whole case did proceed through the system, do you expect the carrying out of the sentence would also proceed the same way?
TOOBIN: Absolutely not. California's death penalty operation is virtually at a total stop, mostly because appeals are taking so long. I believe since 1998 there have been three executions in all of California. California has more than 500 people on death row. So given David Westerfield's age, given the pace at which California is moving through its death sentences I think it's quite likely, even if the death sentence is upheld, that he could die of old age in prison before he's actually executed.
HARRIS: Interesting. Jeffrey Toobin in New York. As always, good job, Jeff. Have a good weekend and a great holiday, OK.
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 November 22, 2002 - 11:40 ET
THIS IS A RUSH TRANSCRIPT. THIS COPY MAY NOT BE IN ITS FINAL FORM AND MAY BE UPDATED.
LEON HARRIS, CNN ANCHOR: Right now, things are getting under way in a courtroom in San Diego, California. There, the fate of David Westerfield is going to be decided. It's all in the hands of a judge. And that judge is about to make a decision and could be happening any moment now. Rusty Dornin checks in now live from San Diego with the latest.
Rusty?
RUSTY DORNIN, CNN CORRESPONDENT: Well, Leon, before anything happens, before any kind of sentencing happens this morning, the judge is going to consider a motion to continue the sentencing and perhaps delay the entire thing. Now what prompted this was that the defense filed for a, you know, for a continuance because of an article in "San Diego Magazine" that quotes an unnamed police source, that talks about the idea that David Westerfield killed Brenda (sic) Van Dam in her bedroom and didn't actually kidnap her, that the little girl was already dead. And the quote used in that magazine was, he hit her and that was it.
Now, of course the prosecution is arguing this is purely speculative theory. There is no reason to believe there was any kind of violent assault in Danielle Van Dam's room. But the judge is going to hear and there's a representative apparently from "San Diego Magazine" in the courtroom. He is going to hear from them on this particular issue.
Also, the defense is saying they didn't have time to prepare for the sentencing, that they had too many requests from the media, that there were personal issues and a lot of other things came up, and they did not have time to file a motion for a new trial.
Now, our legal analyst Bob Grimes says that that could be the issue that might delay this sentencing, the fact that the defense did not have time to prepare for this. But we'll just have to see in the courtroom now, the defense attorney Steven Feldman is bringing forth their argument that they believe there is very good reason to delay this sentencing.
Now of course if the judge decides to go ahead and sentence today, he could go with the recommendation by the jury, which is to sentence David Westerfield to death for the kidnapping and murder of Danielle Van Dam, or he could go with the lesser penalty, which is life in prison without parole.
Now, on another issue, the family has come in with Gloria Allred who is a very high-profile attorney out of Los Angeles. Apparently they are going to hold a press conference immediately following these proceedings. We have absolutely no idea what's going to be in that press conference, whether they're going to talk about a civil lawsuit or some other kind of matter. All we know is they are going to have a press conference. So, we're not sure, Leon, whether this is going to happen today or not. We'll just have to see what the arguments bring forth this morning.
HARRIS: All right. Good deal. Thanks, Rusty. That puts some perspective out there on the table for us to consider. But let's get some more now. Thanks, Rusty Dornin in San Diego.
Let's go now to our legal analyst Jeffrey Toobin, who's in New York this morning, our bureau there.
Good morning, Jeff, good to see you. What do you make of this maneuvering we're hearing now in court? And explain to us how in the world it cam make a difference if what the defense team is saying about this statement made in "San Diego Magazine," that he just killed her in the room, still, if that's true, he did kill her. Why does that make a difference here in the sentence?
JEFFREY TOOBIN, CNN LEGAL ANALYST: Well, the defense theory is that, remember, this is murder with special circumstances. That's why it's a death penalty case. And the specific special circumstance is murder with kidnapping. If Westerfield killed Danielle Van Dam in her bedroom immediately, as soon as he saw her that night, he did not in fact kidnap her. It's just a straight murder case. The defense theory is that would remove the special circumstance and make him ineligible for the death penalty.
HARRIS: That's a strange position to be in where you say, give me some leniency, all I did was kill her.
TOOBIN: That's right, well, you know, that's why we go to law school.
HARRIS: Yes, I guess so, well, let me ask you this, about the question that Rusty raised a moment ago, about the amount of time that the defense team was given to work on this case and prepare for it. Do they have an issue there at all, do you think?
TOOBIN: They might. I mean, this has been an unusually fast case, especially by California standards. Remember, the murder itself was just in February. And here he is, he's had a trial, he's had a penalty phase, and he's about to face a death sentence. Think about Robert Blake, also in trial in California. He's been in jail for more than a year. He hasn't even had a preliminary hearing yet. This has been very fast. However, most of the speed in this case has been at the request of the defense. The defense wanted a fast trial. They wanted to catch the prosecution before it had all its evidence together. They lost that gamble and they may not be able to take advantage of it now.
HARRIS: Yes. In this case, then, it sounds like they want to have it both ways. They want to say that they want to move this trial ahead because it's their advantage to do so quickly, but then when they find out they lose, now they say we moved too quickly.
TOOBIN: They're drawing a distinction. They are saying that it's the penalty phase they haven't had time to prepare for, but you're right. It's tough to have it both ways. And the judge is likely to at least ask that question, if not deny it on that ground.
HARRIS: How about the question of what in the world is Gloria Allred going to be coming in, into this family's life, getting involved in this case? Any idea as a professional or maybe as a colleague, what do you know about that? Anything?
TOOBIN: I certainly don't know what Gloria Allred is doing. I certainly been involved in many cases where Gloria Allred has been involved. And the one thing you can be sure of is that there will be press conferences and there will probably be more than one, And so we will know very shortly what she's doing, and she will make sure that everyone in the world knows.
HARRIS: Well, we know that one press conference at least is scheduled for this afternoon, sometime today.
If that is the case, if she's being brought on, as Rusty suggested or postulated, that perhaps there is a case for the family here to pursue at some point against some other party, where do you think that could lead? Who do you think could be actually sued or held liable for anything for the family?
TOOBIN: Well, certainly, Westerfield himself could be sued. We all remember, I expect, that O.J. Simpson, even though he was acquitted, was then sued civilly by the families of Ron Goldman and Nicole Brown Simpson, and they won. Here they could sue David Westerfield. The case would obviously be much easier because he was convicted. I don't know what kind of assets David Westerfield has to pursue at this point, but certainly that's the most obvious possibility. But I'm sure Ms Allred will let us know exactly what her plans are.
HARRIS: OK. Now, let's get back to Westerfield. If the sentence that's handed down today is death, considering how quickly this whole case did proceed through the system, do you expect the carrying out of the sentence would also proceed the same way?
TOOBIN: Absolutely not. California's death penalty operation is virtually at a total stop, mostly because appeals are taking so long. I believe since 1998 there have been three executions in all of California. California has more than 500 people on death row. So given David Westerfield's age, given the pace at which California is moving through its death sentences I think it's quite likely, even if the death sentence is upheld, that he could die of old age in prison before he's actually executed.
HARRIS: Interesting. Jeffrey Toobin in New York. As always, good job, Jeff. Have a good weekend and a great holiday, OK.
TO ORDER A VIDEO OF THIS TRANSCRIPT, PLEASE CALL 800-CNN-NEWS OR USE OUR SECURE ONLINE ORDER FORM LOCATED AT www.fdch.com
