to death for kidnap-murder of Danielle van Dam
By Jeff Dillon - Signonsandiego.com
David Westerfield was sentenced today to death in San
Quentin State Prison for the kidnapping and killing of 7-year-old
Danielle van Dam.
Superior Court Judge William Mudd sentenced
Westerfield after rejecting allegations of police misconduct during the
investigation, weighing the evidence for and against the death penalty
and listening to Danielle's parents.
Mother Brenda van Dam directed most of her tearful
statement to the stone-faced defendant.
"It disgusts me that your sick fantasies and pitiful
needs made you think that you needed Danielle more than her family," she
said. "You do not deserve any leniency, any mercy, because you refused
to give it to Danielle."
Damon van Dam told the judge he would never get to
see his daughter grow up, be a sister to her two brothers, get married
and have her own children.
"As the years pass and these things don't happen, all
I'll have are the memories of her ... and having to know how brutal her
last hours were," he said.
Westerfield declined the opportunity to speak in
court. His lead defense attorney, Steven Feldman, argued that a life
sentence would be easier on the van Dams and the San Diego community
because a death sentence would "pry at the scab" of Danielle's death by
requiring a series of appellate hearings.
Under California law, Westerfield's sentence will be
automatically appealed to the state Supreme Court.
Originally scheduled for Nov. 22, the hearing was
delayed six weeks after Westerfield's lawyers admitted they were not
prepared to argue his case.
At a news conference after the sentencing, legal
activist Gloria Allred said an effort by Westerfield's attorneys to
avoid the death penalty by arguing that Danielle was killed in her bed –
and therefore not kidnapped, and that the death penalty could not be
imposed – pointed out a loophole in California law.
Allred said she would work with the van Dams and
state legislators for the passage of "Danielle's Law," which would make
it a death-penalty special circumstance to kill a child in his or her
The van Dams filed a lawsuit against David
Westerfield Thursday, accusing him of wrongful death in the "heinous
murder" of the 7-year-old girl.
Westerfield, 50, was convicted Aug. 21, 2002, of
kidnapping 7-year-old Danielle van Dam from the bedroom of her family's
Sabre Springs home the night of Feb. 1, 2002, and killing her sometime
during a weekend he spent roaming San Diego and Imperial counties in his
After a massive search involving hundreds of
community volunteers, Danielle's naked body was found near the side of
Dehesa Road east of El Cajon on Feb. 27.
A jury found Westerfield guilty after listening to
eight weeks of testimony from Danielle's parents, police investigators,
people who witnessed Westerfield's weekend of wandering and a series of
infamous "bug experts" who weighed in on when Danielle could have died.
Jurors later recommended to Mudd that Westerfield be
sentenced to death rather than life in prison without possibility of
Mudd began Friday's hearing by considering requests
from Westerfield's attorneys to rule out the death penalty as an option.
Feldman argued that the San Diego Police Department
violated Westerfield's rights early in the investigation by
interrogating him without reading him his rights and without his lawyer.
He reminded Mudd that the judge had said he was "troubled"
by the activities of investigating detectives and that one of the
detectives had admitted to deliberately violating Westerfield's civil
"We cannot allow the guardians of our civil liberties
to violate our rights," Feldman argued. "The ends simply do not justify
the means, your honor."
In response, prosecutor Woody Clarke called the probe
into Danielle's kidnapping and disappearance "the finest investigation
conducted in this county" and argued that Mudd had already ruled on the
admissibility of all the evidence in the case.
Mudd rejected Feldman's request, saying the jury
never heard any of the disputed evidence.
"The defendant suffered absolutely no, zero, zip,
nada prejudice in this trial as a result of the conduct of these
officers," Mudd said.
The judge then considered a request to rule out the
death penalty as an option based on the circumstances of the case, an
automatic process under California law.
Mudd worked his way down an 11-point list of factors
that could weigh for or against Westerfield, focusing mainly on the
circumstance of the crime: that the girl was taken out of her own home
in the middle of the night, that various pieces of physical evidence
pointed to Westerfield and that her body was found unclothed an appeared
to have lost teeth due to trauma.
"This factor is of enormous magnitude," Mudd said.
Also weighing against Westerfield was his
simultaneous conviction on charges of possessing child pornography and
testimony by a niece that she once awoke to find him fondling her teeth
when she was younger.
"The weight of the evidence supports the jury's
verdict of death," Mudd said.
Westerfield convicted, will face death
By Harriet Ryan (Court TV)
August 21, 2002
SAN DIEGO — A jury Wednesday convicted David
Westerfield of the kidnapping and murder of his 7-year-old neighbor,
Danielle van Dam.
"Oh my God," whispered the victim's mother, Brenda,
as a clerk read the verdict to a packed courtroom at 2:15 p.m. ET. The
panel of six women and six men had deliberated 40 hours over 10 days
prompting speculation they were deadlocked over Westerfield's guilt.
As he did for most of the trial, the 50-year-old
engineer shook slightly, stared straight ahead and showed no emotion.
The same jury that convicted him of murder, kidnapping and child
pornography possession will reconvene Aug. 28 to decide whether to
sentence him to death or life in prison without parole.
Westerfield's sister, sitting with her husband in the
second row of the gallery, wept behind dark sunglasses. As each juror
was polled, she shook her head back and forth in apparent disbelief.
Outside the courthouse, whoops of joy rose up from
crowds gathered to watch the proceedings on television monitors.
Danielle's disappearance last February, among the first of a string of
missing child stories to garner national attention, captivated the city,
and Westerfield's trial attracted blanket media coverage in southern
The jurors never looked directly at Westerfield as
the verdict was announced. One young male juror dabbed at a single tear
on his cheek. A female panelist wept into a tissue.
Brenda van Dam, dressed in a suit of lavender, her
daughter's favorite color, buried her face in her husband Damon's neck
and cried softly. After the last juror was polled, the couple locked in
a long embrace.
Over the course of the two-month trial, prosecutors
presented a mountain of physical evidence, including fingerprints, blood,
hair and fibers, that seemed to link Westerfield to Danielle's abduction
The second-grader was snatched from her canopy bed
the night of Feb. 1. A massive search failed to locate her for nearly a
month until volunteers happened across her body in a trash-strewn lot
some 25 miles from her home.
Police initially focused on Westerfield, a twice-divorced
father of two college students, because his alibi for the weekend she
vanished seemed convoluted. He told officers he took a meandering 560-mile
solo roadtrip in his recreational vehicle.
Investigators later found strands of Danielle's long
blond hair in Westerfield's bed, RV and laundry. There were drops of her
blood on the floor of his RV and a stain of it on his jacket. Her palm
and fingerprint was discovered above the RV's bed, and distinctive
orange and blue fibers from the death scene were also found on
Police discovered a stash of violent child
pornography on Westerfield's computer, which prosecutors presented in
court as a motive for the crime.
San Diego Police Chief David Bejarano credited the
quality and thoroughness of the investigation with the conviction.
"Based on the evidence, the person responsible will
not be able to harm another child," Bejarano told reporters outside the
courthouse Wednesday, noting that the case was one of the biggest in the
department's history. Because of a gag order, the lawyers and family
members did not comment.
Assailed by a crush of microphones and cameras on his
way to lunch, San Diego District Attorney Paul Pfingst said only that he
was proud of the prosecution.
"The lawyers did an excellent job, but their job is
not done," said Pfingst, referring to the penalty phase.
Scores of people gathered around the media area
outside the courthouse when the verdict was announced.
"I was very surprised that it took them so long, but
I wasn’t surprised by the verdict," said observer Ed Bowe, who was in
town from Michigan for the National Scrabble Championship. Asked why he
was convinced of Westerfield's guilt, Bowe replied simply, "Blood."
A block away, San Diegan Anna Mau said she was
surprised and grateful for the verdict, which she said showed some
resolution to the spate of recent child abductions.
"We have kids in our neighborhood and we all watch
them now. If anyone comes around, we're all watching," said Mau.
Revisiting the forensic evidence
During the trial, Westerfield's defense blamed
prosecution "spin," contamination by police and even the van Dam family
for the allegations against him.
The defense suggested that the van Dams'
unconventional lifestyle could have let a killer into their lives.
Danielle's parents testified that they smoked marijuana with friends the
night of the abduction and had on previous occasions engaged in group
sex with other couples.
But with their verdict, jurors apparently agreed with
prosecutors who said the "sex, drugs and rock-and-roll" were irrelevant
to the crime.
The jury also apparently put little stock in the
insect evidence the defense believed was its strongest hope for
acquittal. A forensic entomologist originally retained by the
prosecution concluded that the age of maggots plucked from Danielle's
badly decomposed remains indicated she was dumped after Westerfield came
under close police surveillance.
With the findings of that expert and two other
entomologists, the defense suggested that someone else killed Danielle.
For the final days of the trial, the courtroom became a course in
forensic entomology with the prosecution using its own experts to argue
that the field was woefully inexact.
During its deliberations, the jury asked to review
some of the testimony concerning Danielle's time of death, but also the
child pornography evidence taken from Westerfield's home and his
audiotaped statement to police.
In his closing argument, prosecutor Jeff Dusek said
he could sense the jury was struggling to reconcile the brutality of the
crime with the outwardly normal appearance of its perpetrator.
"If he is the guy, that destroys all of our senses of
protection. How can I protect mine if there are are not any outward
signs?" Dusek said. "But he did it. He did it."
Westerfield (born February 25, 1952), of San Diego, California
was convicted and sentenced to death for the murder and kidnapping of
seven-year-old Danielle Van Dam in 2002.
He was a
successful, self-employed engineer who owned a luxury motor home and
lived two houses away from Van Dam. A divorced father of two college
students, he is currently incarcerated at San Quentin State Prison.
On the evening of
February 1, 2002, Brenda Van Dam and a couple of her friends went out to
a bar. Her husband, Damon Van Dam, stayed behind to look after Danielle
and her two brothers. Damon put Danielle to bed around 10:30 p.m., and
she fell asleep. Damon also slept, until his wife returned around 2:00
a.m. with four of her friends.
The six chatted for
approximately a half hour, and then Brenda's friends went home. Damon
and Brenda went to sleep believing that their daughter was safely
sleeping in her room. The next morning, Danielle was missing. The couple
frantically searched their home for her, but never found her. They
called the police at 9:39 a.m.
officials interviewed neighbors and soon discovered that Westerfield and
another neighbor were not home that Saturday morning.
eventually arrived home driving his SUV approximately 8 AM Monday. From
that point on, he became the prime suspect. Westerfield stated that he
didn't know where Danielle could be, and that he was at the same bar
that Brenda had attended with her girlfriends. Brenda was able to
confirm this, but denied that she and Westerfield had danced together,
as he had claimed. Two eyewitnesses testified to seeing them dance
Two days after
Danielle Van Dam went missing a haggard and bare-footed David
Westerfield showed up at a dry cleaners dropping off two comforters, two
pillow covers, and a jacket that would later yield Danielle Van Dam's
blood. When law enforcement first interviewed Westerfield he did not
mention going to the dry cleaners.
said that he had driven around the desert and the beach and stayed at a
campground. Law enforcement put Westerfield on 24 hours surveillance
from February 4, as they found it suspicious that he had given his RV a
cleaning when he returned from his trip. The RV, his SUV, and other
property was impounded for testing on, February 5.
About three days
before her disappearance, Danielle and her mother, Brenda, sold Girl
Scout cookies to Westerfield who invited them into his home and chatted
On February 22,
police arrested Westerfield for Danielle's kidnapping after two small
stains of her blood were found on his clothing and in his motor home.
Danielle's severely decomposed body was found February 27. His attorneys
suggested the police were in a rush to solve the case, and had never
considered other suspects. Westerfield did not have a criminal record.
not guilty, and went on trial on June 4, 2002. During the trial,
Westerfield's lawyers, Steven Feldman and Robert Boyce, suggested that
the child porn might have been downloaded by Westerfield's 18-year-old
son, Neal. Neal denied this.
Westerfield's defense focused on the lifestyle of Danielle Van Dam's
parents. The defense suggested that the couple were known for letting
each other have sex with other people, and claimed that this lifestyle
might have brought the kidnapper to their home.
lawyers charged that he was improperly interrogated for more than nine
hours by detectives who ignored his repeated requests to call a lawyer,
take a shower, eat, and sleep.
could not present any evidence that directly linked Westerfield to
Danielle. There were no traces of evidence that he had been in her house
(as his lawyers told jurors, "not hair, not fingerprints, not fiber, not
nothing") and none of his DNA was found on her body. For the prosecution
a trio of criminalists linked microscopic fibers found on the body of
Danielle Van Dam to hundreds found in Westerfield's home.
The trial lasted
two months and concluded on August 8. On August 21, the jury found him
guilty of kidnapping and first degree murder. He also received an
additional conviction for a misdemeanor charge of possessing images of
subjects under the age of 18 in a sexual pose on his computer.
The science of
entomology was a major focus during the trial. Three entomologists,
consulted by the defense, testified that flies first laid eggs on Van
Dam's body sometime in mid-February - long after Westerfield was under
On the other hand,
one of these entomologist, David Faulkner, conceded under
cross-examination that his time estimate was based mostly on the fly
larvae, and that his research could not determine a maximum time her
body was outside.
The other forensic
entomologist, Neal Haskell, using a weather chart prepared by forensic
artist James Gripp, stated that the warm temperatures made it likely
that insects immediately colonized Danielle's corpse.
entomologist, Dr. Robert Hall, estimated initial insect infestation
occurred between February 12 and February 23. However, under
cross-examination Hall acknowledged that the insect infestation of the
corpse wasn't "typical" because so few maggots were found in the girl's
Dusek questioned Hall about why his calculations were compiled through a
method less favorable to the prosecution and why he criticized the
findings of the prosecution's entomologist, Dr. Madison Lee Goff, and
favored the entomologist hired by the defense.
Goff testified the
infestation may have occurred February 9 to February 14, but stressed
that other factors may have delayed insect arrival. He explained that a
covering, such as a blanket, might have kept flies at bay initially, but
no covering was found, and he later said the longest delay by such a
shroud was two and a half days.
Some of the
computers and loose computer media in Westerfield's office contained
pornography. His attorneys, however, claimed that police once reported
not finding child pornography.
According to the
prosecution computer expert, James Watkins, 100,000 images were found,
including 8,000 to 10,000 nude images and 80 which could be considered
included brief movie clips found in Westerfield's office which featured
an underage girl being raped by one man while another man restrained
her. These clips, including sound of the girl struggling, were played in
the courtroom. In all, two sets of movie clips, six animated cartoons,
and 13 still images taken from computers, zip disks, or CD-Roms in David
Westerfield's home were shown, each featuring underage girls.
that this was for his enjoyment, and claimed that he was accumulating
the images so he could send them to Congress as examples of smut on the
In 2003, after
Westerfield's conviction, James Selby wrote to the police confessing to
the Van Dam murder. He was wanted for raping women in San Diego in 2001,
and for kidnapping a 9-year-old Oklahoma girl from her bedroom in the
middle of the night and raping her in 1999, and was charged with a
spring 2001 sexual assault on a 12-year-old girl in Sparks, Nevada, but
police don't believe that he murdered Van Dam.
Dusek, who did read the confession, viewed it as not credible. It is
believed that James Selby was in the Tucson, Arizona area when Van Dam
was kidnapped in February 2002. Selby is believed to be responsible for
a series of rapes in Arizona from October 2001 to May 2002.
Selby - a divorced
father of three - worked as a handyman and machinist and traveled often
between San Diego and Tucson. He had a prior rape conviction in
Colorado. In addition, Selby admitted responsibility in the slaying of
Jon Benet Ramsey.
According to Deputy
County Attorney Bradley Roach, "It was an aspect of his personality to
confess to something to see what other people would say," said Roach.
Selby committed suicide in his jail cell on November 22, 2004.
In January 2003, a
California judge sentenced David Westerfield to be executed. He was
transported to San Quentin State Prison. The Van Dams sued Westerfield,
but the case was settled out of court. The Van Dams were awarded
$416,000 from several insurance companies who insured Westerfield's
home, SUV, and motor home. The settlement also prevented Westerfield
from ever profiting from his crime.
When the trial was
over, the media, quoting unnamed police sources, reported that
Westerfield's lawyers were just minutes away from negotiating a plea
bargain when a private citizen's group, started by the Laura Recovery
Center and concerned local citizens, found Danielle's body.
According to these
reports, under the deal, Westerfield would have taken police to the dump
site in exchange for life without parole. Both the prosecution and the
defense declined to comment on these reports.
During the penalty
phase of the trial, Mr. Westerfield's nineteen-year-old niece testified
when she was seven-years-old her uncle entered his daughter's bedroom
where she was spending the night with her parents attending a party, to
check on the kids, and woke up finding him rubbing her teeth, and said
she bit his finger as hard as she could. She went downstairs to tell her
mother. Mr. Westerfield was questioned about the incident at the time by
his sister-in-law, where he explained that he was trying to comfort her.
The incident was then forgotten.
In the months
following the end of the trial audio tapes of Westerfield being
interviewed were released to the media. In one police interview he tells
investigators that he doesn't feel emotionally stable. He is told that
he failed a polygraph test. Westerfield tells him that he wants a retest
and that he was not involved in Danielle's disappearance.