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Jury Unanimously Sentences David Westerfield to Death

Aired September 16, 2002 - 16:39   ET

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

JUDY WOODRUFF, CNN ANCHOR: We are going to break into that interview. Our apologies.
We go to San Diego, where a judge is considering the sentencing phase of the trial of David Westerfield, accused in the murder of Danielle van Dam.

(JOINED IN PROGRESS)

JUDGE WILLIAM MUDD, SAN DIEGO CO. SUPERIOR COURT: At approximately 1:25 this afternoon, my bailiff was putting the jurors away. And, immediately, the jury foreman rang. And the following note was received by the court.

"Subsequent to writing and sending our note this morning, we have decided we want more time to deliberate." And that was certainly acceptable. And I intended to come in here and say: "This was a dress rehearsal, folks. King's X, time out. They want to deliberate."

Approximately 10 minutes later -- namely, at 1:35 -- and this is -- we documented in order to keep these times straight -- we received the following letter or note signed by juror No. 10. It reads, "We have reached a unanimous verdict."

So, going in chronological order, we have gone from a potential hung jury to now a verdict. So, at this time, we are going to take a verdict.

STEVEN FELDMAN, ATTORNEY FOR DAVID WESTERFIELD: Before...

MUDD: Yes.

FELDMAN: ... if I could I address the court, please?

MUDD: Sure.

FELDMAN: Your Honor, the court just indicated at 11:45 the court received a note indicating that the jury had not -- or at least concluded it was unable to resolve.

It appears as though, between 11:45 and 1:25, the jury continued to deliberate in some manner, because, as Your Honor just put it, as the jury was being put back in -- meaning before they were gathered together and deliberating together amongst themselves, in apparent violation of the court's order not to discuss any aspect of the case unless they are together, another note comes out indicating they want some more time. It's our view that that's a direct breach of the court's orders. We move for a mistrial as a result of that breach and disregard of the court's explicit orders to the contrary.

(CROSSTALK)

FELDMAN: And we request a hearing conducted by the court of the jury to insure that any deliberations were done as directed.

MUDD: All right.

Do the people desire to be heard?

UNIDENTIFIED MALE: We are opposed to the motion.

The assumptions defense counsel is making are unsubstantiated. And there is absolutely no support. It sounds like, from the description the court gave us, that they acted properly and well within the confines of the law.

MUDD: Yes.

Mr. Feldman, The only thing I can say is that you -- your argument is basically rank speculation. Another point that is equally plausible is that they all decided to think about the positions they were in and come back after the lunch hour, and what they asked for was more time to talk about it. And then they made a decision. So the request is duly noted for the record and denied.

Let's get the jury.

WOODRUFF: CNN's Thelma Gutierrez has been covering this trial out in San Diego -- as we pointed out, David Westerfield found guilty some days ago, weeks ago, in the murder of Danielle van Dam.

This jury has been deliberating what his sentence should be -- Thelma.

THELMA GUTIERREZ, CNN CORRESPONDENT: Well, Judy, this jury has been deliberating in the penalty phase since September 4, on and off.

Last week, they took several days off because one of the jurors was sick. And then they took -- they were supposed to resume deliberations on Friday. They took that day off because a juror had problems with scheduling. And so, today, they come back. And now we hear defense attorney Steven Feldman asking for a mistrial because of a discrepancy in the notes that were passed to the judge a short time ago.

Defense attorney Bob Grimes join me right now.

Bob, can you tell me, how significant is this? And did Steven Feldman have a legal leg to stand on?

ROBERT GRIMES, CRIMINAL DEFENSE ATTORNEY: I think Feldman absolutely today had to make the motion. In the follow-up motion, even though the motion for a mistrial is denied, he believes he is entitled to a hearing to find out if any of the jurors were deliberating outside of the jury room, because his basis of his motion is, at 11:45, they said that they couldn't reach a decision. Then, presumably, they went to lunch. At 1:30, they announced they were going to continue deliberating. And then, at 1:35, they had a verdict.

And so I think he is entitled to have the judge inquire of the jurors if there was any deliberation among any of the jurors, contrary to the judge's orders, outside of the jury room.

GUTIERREZ: Where do things stand right now? What does it look like to you, as a defense attorney who has handled several capital cases?

GRIMES: Well, the probability is, if there is a unanimous decision, the probability is it would be a death penalty decision, simply because the victim, Danielle, is 7 years old, and all this other very -- such sentimental, emotional factors that we have seen. So I think that's the likelihood. And that's why I think the defense would have welcomed a hung jury.

GUTIERREZ: All right, we are still waiting to hear from Judge William Mudd to see exactly what that verdict is. It may be another hour or so before that verdict is read -- Judy, back to you.

WOODRUFF: All right, Thelma Gutierrez -- or it could be sooner than that. We are hearing -- it's not clear -- the jury may be headed back to the courtroom shortly. We will cover that just as soon as it happens.

We're going to take a break. We'll be right back.

(COMMERCIAL BREAK)

WOODRUFF: We are heading right back to that courtroom. The jury is in place, the judge now prepared to ask them for their verdict for the sentencing portion of this trial of David Westerfield.

MUDD: ... recite the verdict for the record.

UNIDENTIFIED FEMALE: The people of the state of California plaintiff vs. David Alan Westerfield, defendant, case number CD165805. The verdict: We the jury in the above entitled cause determine that the penalty shall be death, dated September 16, 2002, signed juror No. 10, foreperson.

Ladies and gentlemen of the jury, was this and is this your verdict as read?

JURY: Yes.

MUDD: All right. Please poll the verdict and the jury.

UNIDENTIFIED FEMALE: As I call your number, please answer yes or no to the question.

Was this and is this your verdict as read?

Juror No. 1?

JUROR NO. 1: Yes.

UNIDENTIFIED FEMALE: Juror No. 2.

JUROR NO. 2: Yes.

UNIDENTIFIED FEMALE: Juror No. 3.

JUROR NO. 3: Yes.

UNIDENTIFIED FEMALE: Juror No. 4.

JUROR NO. 4: Yes.

UNIDENTIFIED FEMALE: Juror No. 5.

JUROR NO. 5: Yes.

UNIDENTIFIED FEMALE: Juror No. 6.

JUROR NO. 6: Yes.

UNIDENTIFIED FEMALE: Juror No. 7.

JUROR NO. 7: Yes.

UNIDENTIFIED FEMALE: Juror No. 8.

JUROR NO. 8: Yes.

UNIDENTIFIED FEMALE: Juror No. 9.

JUROR NO. 9: Yes.

UNIDENTIFIED FEMALE: Juror No. 10.

JUROR NO. 10: Yes.

UNIDENTIFIED FEMALE: Juror No. 11.

JUROR NO. 11: Yes.

UNIDENTIFIED FEMALE: And Juror No. 12.

JUROR NO. 12: Yes.

MUDD: All right, polling being unanimous, the verdict as decided will be entered for the record.

Ladies and gentlemen, I think it goes without saying that, as a group, you are one of the most hard-working citizen panels that I have had the experience of dealing with. You folks have had a very difficult case. You have had a trial that has taken many months. You have had gaps to deal with. And, in addition to that, you have had to work very hard at self-policing yourselves. You are to be commended for your dedication to the task.

I note that all of you remained intact. Juror 16 happens to be on a business trip that had been preplanned. And juror 17 and 18 elected to receive the news via telephone. But we didn't lose a single one of you from illness or conflict or anything else. So your dedication to task is monumental, to say the very least.

Now, in sum, probably 10 days to two weeks from now, you are going to receive a letter from me, which is the court's official way of thanking you for your jury service. If there are any of that would like to communicate with me regarding that service, I would be very pleased, actually, to respond as soon as I am legally able.

The time at which I am legally able to comment on a case is at the time of sentencing, which is a date we will be setting in this courtroom after you folks leave. And you are welcome to attend that hearing.

Now, there are a number of things that I need to go over with you because of the nature of this particular case. No. 1, it is oftentimes very beneficial for the lawyers to talk to you immediately after rendering a verdict and while these proceedings are fresh in your minds.

What this court -- you are having a problem, juror one?

JUROR NO. 1: (OFF-MIKE)

MUDD: All right. You'd be welcome to. And as soon as you are composed, I need all of you present.

WOODRUFF: Evidently, something has happened with one of the jurors. The judge, Judge William Mudd, said to Juror No. 1, he said "when you are composed." We can only surmise -- since we are not allowed to show you the jurors, we can only surmise what that meant.

You are looking now at David Westerfield, who has been not only found guilty, but, after weeks of deliberation by this jury, they determined that he should receive the death penalty, which, in Florida, would mean death by lethal injection.

Robert Grimes, criminal defense attorney, how unusual is it for a jury to take this long to reach a verdict on a sentencing?

GRIMES: Well, the length of the deliberations really is not unusual. The unusual part is what Steve Feldman just made his notion to mistrial about. And that is, at quarter to 12:00, they said that they couldn't reach a decision. And then, at 1:35, they said they had a death verdict. And so it will be interesting to find out how that changed so fast.

WOODRUFF: Well, what do you think? GRIMES: Well, I think Feldman is entitled to find out. He is entitled to a hearing to find out if he is right in his theory that there may have been some communications outside of the jury room: jurors talking together in the halls over lunch or something, which is prohibited.

They can't discuss the case outside of -- unless all 12 of them are together. Now, it may not have happened that way. But I think he is probably entitled to have the judge inquire of the jurors to find out exactly where they made their decision.

WOODRUFF: But if the judge has said, as he did -- he overruled the objections by the defense attorney, is that the end of it? Or does that now leave grounds for an appeal on the part of...

GRIMES: If the judge will not -- if the judge will not allow the defense to inquire of the jury in open court, he has already instructed them that they may be able to talk to the defense after the trial.

WOODRUFF: All right, let's listen. This is Judge William Mudd.

MUDD: So, if all of you will kindly, just at this time, go back into the corridor, perhaps even back to the jury deliberation room, until juror No. 1 is composed, we will call you back as soon as we are ready to proceed.

WOODRUFF: So, evidently, one of the jurors, all we can tell you is evidently lost composure. The judge asked the juror to leave until he or she was able to compose himself or herself. And we couldn't -- as we said, we can't show the you the jurors, so we don't know exactly what happened. But this came just as the judge was beginning to give some instructions to the jury in terms of what they would say to attorneys and perhaps also to the news media.

Once again, David Westerfield, by this jury, found unanimously that he should receive the death penalty after he was found guilty of the murder of 7-year-old Danielle van Dam.

We are going to take a break. We'll be back with more coverage of this case in just a moment.

(COMMERCIAL BREAK)

(BEGIN VIDEO CLIP)

UNIDENTIFIED FEMALE: We the jury in the above entitled cause determine that the penalty shall be death, dated September 16, 2002, signed juror No. 10, foreperson.

Ladies and gentlemen of the jury, was this and is this your verdict as read?

JURY: Yes.

MUDD: All right. (END VIDEO CLIP)

WOODRUFF: We've been reporting on the jury in the David Westerfield case, finding him -- that he should get the death penalty after he was convicted of murder, of the murder of 7-year-old Danielle van Dam. This is David Westerfield you are looking at. Just a moment ago, the jury was asked to step out of the room because one of the jurors apparently lost exposure. We are back in the courtroom now.

Thelma Gutierrez, you have been watching this trial. Was it pretty much -- for people who have been watching it out there, pretty much a forgone conclusion that this is where it would turn?

GUTIERREZ: Yes, Judy, that's a very good question.

In fact, people here in San Diego were all pretty much watching this trial since the beginning. It has been on every station. It has been in every newspaper since the very first day. But yet the people that we have spoken with have all said either, yes, he deserves the death penalty because he was convicted of kidnapping and murdering a 7-year-old little girl.

Some people, on the other hand, during the penalty phase of this trial, heard David Westerfield's children's speak on his behalf, saying that this was a father who had taught them -- quote -- "values"; this was a person who had no violent criminal past that we know of. And so those people said he deserves life if prison without the possibility of parole.

Since the very beginning, the prosecution had said that this man deserves the most severe penalty. And yet the defense got up saying: "He's not the worst of the worst. This is the person -- this is a man who is not comparable to a Manson, Jeffrey Dahmer, a person like that. This is a man who just committed one very serious and terrible transgression."

Obviously, the jurors did not feel that way, Judy.

WOODRUFF: They didn't, Thelma. And yet it took them quite some time to reach this verdict. They have been at it for days. And just a few hours ago, they sent the judge a note saying they were not able to reach any sort of an agreement.

GUTIERREZ: Yes, you're right. In fact, they have been deliberating since September 4.

But let me break in, Judy, and just let you know that, just a few moments ago, David Westerfield's mother and aunt were kind of scurrying out the courtroom and went past us and down the street. I can tell you that, during the penalty phase, the last day, that I was sitting right behind David Westerfield and right in front of his mother. And I could hear her sobbing the entire time.

When the jurors were dismissed and David Westerfield was able to leave the courtroom, right before he did, he stood up. He turned around. He looked squarely at his mother and he gave her this big smile. His mother broke down sobbing. She went out into the hallway. She was crying. And she was here in the courtroom as the verdict was read. Again, she walked right past us a few moments ago, also if tears -- Judy.

WOODRUFF: Thelma, any sense -- I know you are outside the courthouse, but I wondered if you have been able to pick up any information at all about what happened with the juror who, according to the judge, lost composure.

GUTIERREZ: No, Judy. I can tell you that I am seeing pretty much what you are seeing, standing out here. Of course, the camera was not on the jury box at the time. I could not see that, although I will tell you that several jurors, when autopsy photographs were shown, when Mrs. van Dam testified about her daughter, several times several jurors, I noticed, broke down in tears.

It is hard to gauge exactly what happened today, though, Judy.

WOODRUFF: All right, Thelma Gutierrez, who has been covering this trial in San Diego -- thank you, Thelma.

And we want to tell you that CNN will be talking with the jurors, those who are willing to talk with the press, and also with the attorneys in the case as they leave the courthouse. And, also, we want to let you know the prosecutors will appear tonight on "LARRY KING LIVE." That's at 9:00 Eastern.

That's it for our coverage right now.

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