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Westerfield Sentencing
Aired January 03, 2003 - 11:38 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.
CAROL LIN, CNN ANCHOR: We're going to go into the court hearing right now of David Westerfield's sentencing. There you see Judge Mudd getting ready to start the proceedings.
(JOINED IN PROGRESS)
JUDGE WILLIAM MUDD: The defense response to the points and authorities and arguments filed by the people, points and authorities in opposition to the motion to reduce the penalty to life filed by the people, people's memorandum regarding certification of the record, which we'll discuss later, points and authorities in opposition to the defendant's motion for dismissal of the special circumstance filed by the people.
I'd like to hear argument on both of those motions at the same time -- Mr. Feldman.
STEVEN FELDMAN, DEFENSE ATTY.: With the court's permission I want to address the 1385 as opposed to the 190.4, so that at least you'll track my argument.
MUDD: All right.
FELDMAN: Your honor, it appears today America as changed. America is now a place where the media turns capital murder trials into summer entertainment. The local attorneys make disparaging remarks about counsels in the court on a nightly basis, and where the entertainment for the evening becomes the nightly scorecard.
Our motions address constitutional issues, specifically and initially, the issue of outrageous governmental misconduct. The court recognizes that our system is one of a social contract. It's a system that's designed to give due process as opposed to crime control, and this is certainly a qualitative difference. We are a society of law. We have a social contract. In our society, the ends do not justify the means.
In this case, our social contract, the court found, was violated by law enforcement. The court specifically indicated that the court had troubles with some of the testimony that was offered by prosecution witnesses, and in specific, three particular law enforcement officers who were involved in the greater than 16-hour interrogation process of Mr. Westerfield. I speak to Pargo (ph), Kot (ph), Ott and Keyser.
I say initially, our Supreme Court says death is different. Death is reserved for the worst of the worst people, not necessarily the crimes, but the people.
In our case, Detective Ott on May 10th was asked whether or not he was aware that he was intentionally violating the constitutional rights of Mr. Westerfield, and his answer at 15:46, yes.
So sir, you made a decision to violate Mr. Westerfield's constitutional rights after talking to your superiors, after running it up the chain of command in the police department? Yes. Why? Quote: "My emotions had gotten away from me." And he admitted to at least two separate intentional constitutional violations.
In hearing the evidence, the court indicated this was -- quote -- "The highest dilemma on the chart of stress and blood pressure that this court had to deal with," and that was the follow-up interview process. You indicated that what was troubling you was the testimony of Thrasher (ph) and Parga (ph), and that this was a close call. You said I'm troubled, I'm deeply troubled by the fact there's no tape recordings involving the 16-hour interrogation of aggressive confrontation by Ott and Keyser with Mr. Westerfield.
You said, I'm troubled because so much of what occurs on that road trip, to use Mr. Armstrong's analysis, is based on the credibility of Ott and Kaiser. The court knows a lot about them, having dealt with their past, but more important, it appears to the court that they have been less than candid, if not outright committed perjury. I'm deeply troubled by that, but your honor at the time indicated at the time there was nothing to do.
I submit to you there is something to do. We are a society with a social contract. We cannot allow the guardians of our civil liberties to deliberately and intentionally, with premeditation, clearing it through their superiors, to intentionally violate our citizens's constitutional rights. The ends simply do not justify the means, your honor.
And so, although this court find concern with the veracity of these two key witnesses in this, the most serious of cases, the death penalty case, those officers continued to act as law enforcement officers to continue in their pattern of conduct, and Mr. Westerfield we know will die in prison.
At least as to the first part, the request for dismissal, on governmental misconduct, the authority has the authority to strike death as a sanction for this admittedly perjurious conduct.
On to 190.4, your honor.
Uniquely, I'll say the participants but/combatants, are aware of how an egregiously our constitutional system of justice has been attacked in this case. It's been attacked in the print media. It's been attacked in the visual media. We're all under attack by doing our jobs. The independence of the court is threatened, the independence of the judiciary is threatened by these behaviors, your honor. We fear that politics in this case, in this case, had a role in the determination as to whether or not to seek death for Mr. Westerfield. That's a terrible thing, politics. Had the killing occurred in another state, there would be no death penalty. If we went to whichever the Carolinas Susan Smith was involved in, and this is in response to Mr. Dusheck's (ph) argument that there's no more egregious offense than this, we look to Susan Smith, we look to any other state in the Union which doesn't impose the death penalty, we look to multiple killings, we look to other countries in the world who won't even extradite American citizens in they face the death penalty.
But this is a separation of powers issue, your honor, because your honor is statutorily obligated to independently evaluate the evidence, act as a 13th juror and utilize your honor's experience, which I think is qualitatively different than that of many others in the system.
Your honor has demonstrated by history your independence. We respect the court's independence. We know that in at least two major cases (UNINTELLIGIBLE), the court has acted as the court believed appropriate, notwithstanding the public outcry.
I don't believe your honor will be influenced by attacks, by self-promoting, narrow minded journalists posing as commentators, who send their minions asking around neighborhoods in the dark hours of the morning, who look to subvert the system by engaging in personal vituperative attacks on counsel, the court, the prosecution and the system, whose only purpose is to generate audience, but who cynically undermine our system of constitutional justice and the faith of our public in our system.
Local newspaper editorials will not adversely the court's ruling, nor the local press claims in an editorial, that it's the defendant's job to prove his innocence and then strokes itself for saying how accurate it was. The court won't be influenced by that, I'm confident.
Nor will the court be influenced unfairly by so-called experts who have never met a camera they don't like, who are so interested in promoting their egos that they attack counsel and don't educate the public, who misuse their office. I say to you, don't allow them to sabotage our system.
I ask the court to take the high road. The high road in this case, your honor, is life. Look at David Westerfield. On a proportionality issue, on a proportionality issue, if your honor, I submit, was to compare Mr. Westerfield's background against that have virtually any defendant that's appeared before you, I think you would find his is a mitigated background, and your honor has the ability to make the finding that the mitigation in this case outweighs the aggravation, and you can in your power spare Mr. Westerfield's life.
I ask you, take the high road. I ask you, don't acquiesce to the heart less killing of another. I ask you, don't be swayed by the lynch mob mentality we've seen in our community.
Life without possibility of parole, your honor, provides a closure in this case that we can't get otherwise. We know, we know, as your honor's pointed it out, and we know historically and factually, there's hundreds of men on California's death row. There will be no appointment of counsel for Mr. Westerfield for years. Every time there's a movement on any case of any kind that's appointed on the press, the Van Dam's wounds will open, the community's wounds will open. That's not the right thing. I don't think it's appropriate that our community sit through years of continuously trying at the same scab.
Approximately 80 years ago, Clarence Darrow waived jury in the case of Leopold and Loeb. In that case, Leopold and Loeb had decided they would essentially commit the perfect crime, and they planned, and they premeditated, and they deliberated, and they thought about, and they concealed, and they lied and they hid the evidence of the killing of Bobby Franks. Clarence Darrow waived jury, your honor. He argued for 12 hours to the court that life was appropriate. I'm not going to argue for 12 hours.
Your honor, I would respectfully submit in this case, life is the only appropriate resolution.
Thank you.
MUDD: All right. Who's going to speak? All right.
GEORGE CLARKE, DEP. DIST. ATTY.: Actually, I'll be addressing just the motion to dismiss your honor, and with just some very brief comments. I think it's been covered in the pleadings to a large extent. This court had the benefit, fortunately, of hearing all of the evidence, in terms of the investigation conducted by the San Diego Police Department, and both its sworn and non-sworn personnel. The Court heard all of that evidence, and ultimately entered rulings about the admissibility of aspects of that particularly investigation.
I think the evidence in this case shows that this court heard, showed that this was the finest investigation, to our knowledge, conducted by any law enforcement agency in this county, if not elsewhere. The court had difficulties with some aspects of that investigation, and the court ruled accordingly preventing the jury from hearing more damage in the case indicating Mr. Westerfield's case. That was an appropriate sanction, that was a sufficient sanction, and ultimately, that should be the sanction that was entered as a result of those, again, portions of the investigation that the court had difficulty with.
The remaining investigation and even including those particular portions of it, however, do not rise to the level of anything approaching where the court should enter its discretion and ultimately either dismiss a special circumstance or reduce the penalty as a result of that conduct, particularly, I think in the context of what again was what we believe to be the finest investigation conducted in this county, and accordingly, the court should not grant the motion to dismiss the special circumstance or reduce the penalty based on police conduct.
MUDD: All right. Mr. Dusek? JEFF DUSEK, ATTY.: Regarding the 190.4 motion, I am confident, I am absolutely certain that this case was tried regardless of the media. The participants on this side of the bar tried this case upon the evidence and the witnesses that came before this court, and I am absolutely certain that the court will make its decision based upon what happened in this courtroom during the trial.
We are not concerned with what happened elsewhere, other people had their jobs to do. This was not a politically motivated case. This was a criminally motivated case. The factors that the court is to consider are the evidence that was presented in this case. Whether or not the jury's verdict should be reduced should be ignored basically. The evidence in this case was overwhelming. This was as strong a case as we are going to see in this county. A circumstantial case, yes, but a strong circumstantial case, and in reality, circumstantial cases are best.
The defendant had many, many factors that he had to overcome and they couldn't. The jurors saw through the smoke screen, the diversions that were presented. The physical evidence, the defendant's own statements convicted him in this case.
If you recall, when the penalty phase was going on, the jurors asked to have reread the defendant's statement or listen to the statement to Paul Redden (ph) and to the media. Although we can only guess why they wanted that, I think it's fairly certain they wanted to see some humanity on his part. Give us a reason to spare your life for this horrible crime that you convicted -- that you committed. We have all seen that tape. We have all seen his own words. He showed absolutely no humanity, no remorse, no compassion for what he did and for the van Dams.
He knows very well what is the sentence -- what the appropriate sentence is in this case. He told Paul Redden (ph) when he was interviewed, Someone who does this type of crime ought to be taken out and shot immediately. He told us that on tape to Paul Redden. He knows what it's worth, not what happened in South Carolina, North Carolina or anywhere else, and his view is the appropriate view. It certainly is the view that the jury found to be appropriate, which was the appropriate view.
The guilt evidence was overwhelming. Nobody else did this crime but him, and the crime is horrific. There is nothing worse than taking a child out of her own bedroom, kidnapping her and doing whatever he did to her before he killed her. He is deserving of the death penalty. It should not be reduced.
MUDD: OK. The court is first going to address the request and motion to dismiss the special circumstance as a result of police misconduct. I am going to start by noting the following observations.
First of all, it was a defense motion to suppress the statements that led the court to hold an enliminee (ph) hearing out of the presence of the public, and I'm going to once again say this that this case was tried in my courtroom in front of a jury of concerned citizens that heard only the evidence that was allowed. It is very apparent and very obvious that the matter that we're discussing right now was done off the record as far as the public is concerned. Those records will be released on Monday. But the bottom line is very important to note, and that is that the court, this court, made the decision to hold those hearings at the request of both counsel out of the presence of the public just for the reason that this incident highlights, and that is that the media would not have sat on this. It would have been all over the world as a practical matter, and these hearings took place before we even attempted to select a jury.
But I do note that the motion was made by the defense. The court heard all of the evidence, viewed the tapes. Heard the testimony of officers, and it is to be noted that the court denied the people the right to present that evidence to this jury, evidence that in many respects, many respects, was very damning to the defense. The people were deprived of that evidence. The jury never heard it.
Second, as relates to the conduct of officers Ott (ph) and Kaiser (ph) in their aborted efforts to visit Mr. Westerfield in the jail, the court suppressed all of that evidence. In addition to that, the jury in this case never heard any of that testimony.
As a result, it is clear that the defendant suffered absolutely no, zero, zip, nada prejudice in this trial as a result of the conduct of these officers.
As a result, that motion is denied.
Now, Mr. Feldman has raised an interesting point, and I'm glad that he raised it, and that is that we have pundits across this country that know what we're doing here. They know better than we do. They're all experts. They're on the national media. They determine what the conduct is. They determine what the rules should be. They determine what the law in the state of California is.
That's absolutely preposterous, but it is one of the things that everyone in this trial has had to live with, counsel, the court, and as a result, I'm going to take just a couple minutes, not to bore the lawyers in the audience, but to educate to a certain extent the pundits that think they know everything.
First of all, the nature of the motion that is being brought in this case is mandatory under the laws of the state of California. The law requires me, as the trial judge, to complete five separate obligations when reviewing such an automatic application to reduce the penalty from death to life.
Those areas that I am required to cover are as follows: first, to review the evidence; second, to consider all of the aggravating and mitigating circumstances that were presented in the trial; third, to determine whether the jury's decision was contrary to law or the evidence that was presented; fourth, to state on the record the reasons I am making the decision I am making; and five, to direct that those findings be entered into the clerk's minutes. My function as the trial judge in deciding this motion is to reweigh independently the evidence of aggravating and mitigating evidence and circumstances and then determine whether, in my judgment, the weight of the evidence supports the jury's verdict.
The court in this circumstance must only consider the evidence that was properly presented to the jury, so even though I've heard a lot of material over the months preceding the trial, the fact is I am obligated to work with the evidence that was presented in the courtroom and that which the jury heard. The court under this circumstance must not allow the presentation of additional evidence, nor allow victim impact statements, nor review any probation reports, all of which this court has not done.
In addition to that, the court may not contrast this case with other cases in which this court has imposed the sentence of death. With this overview, the court will now recite its reasons, as required by law as to the motion brought.
This court has independently considered all of the evidence presented at the trial, and the arguments of counsel. It is not the court's intention to list every item of evidence and all arguments presented that were considered by the court. For the purpose of stating the court's reasoning, this will be a recital of the principal factors that most powerfully informed and influenced the decision at hand. A, the circumstances of the crime and the special circumstances.
The circumstances of this case and this crime weigh heavily in favor of the upholding of the jury's verdict of death. The victim, Danielle van Dam, age 7, was taken out of her home in the middle of the night while sleeping in her own bed. The physical evidence overwhelmingly confirms that the defendant then returned to his house with the victim, taking her from his bed to his car to his motor home. The defendant then drove in an almost aimless fashion for two days.
The victim's hand print was found above the bed in the motor home as well as her hair being found in the sink of the motor home. Her blood was found both on the floor of the motor home and on the defendant's jacket.
The uncontested evidence establishes well beyond any reasonable doubt that the blood, hand print, and hair were from Danielle. The hair length was completely consistent with a recent hair cut she had prior to passport photographs being taken. The victim's body, when found, was unclothed and had teeth missing, the likely result of trauma to her face. The weight of this factor is of enormous magnitude.
B, the presence or absence of past criminal conduct by the defendant. The defendant's niece testified in this case about an incident that occurred many years ago when she was a young girl. While sleeping in a room with her cousins, she awoke to the defendant kneeling next to her. He put his fingers in her mouth rubbing her teeth. This instance -- this incident is disturbing to say the least. In addition, the defendant was convicted of the possession of child pornography in the instant case. Both of these instances of criminal activity weigh against the defendant.
C, prior felony convictions. There are none.
D, influence of extreme mental or emotional disturbance. There was none.
E, participation or consent by the victim. There was none.
F, the defendant's reasonable belief and moral justification or extenuation. There was none.
G, extreme duress or substantial domination of another. There was none.
H, the capacity of the defendant to appreciate the criminality of his conduct. The defendant has the capacity to appreciate the criminality of his conduct.
I, the age of the defendant at the time of the crime. This factor is neutral at best.
J, whether the defendant's participation in the crime was relatively minor. The defendant was not a minor participant in this crime.
K, other factors extenuating the gravity of the crime. The defendant presented many witnesses attesting to his generally positive contributions to his family, his friends, and his career. The court recognizes these as attributes that are mitigating.
Finally, my ruling. Based on a careful and an independent reweighing of the evidence, the court finds that the weight of the evidence as outlined above supports the jury's verdict of death. The motion to modify the sentence is hereby denied.
At this time, ladies and gentlemen, the court is going to take a recess to read and review the probation officer's analysis and report, and will resume the bench for the formal sentencing. We are in recess momentarily.
Peggy (ph), I'll take the report.
LIN: All right. Judge Mudd has spoken. He has denied the defense's request to drop the special circumstances. He supports the jury's decision of a death sentence, so David Westerfield will die by lethal injection. Of course, everybody expects that he, as every death row inmate virtually has, will go through the lengthy appeals process that the California legal system will allow him to actually make those requests for an appeal in his case.
(INTERRUPTED BY LIVE EVENT)
MILES O'BRIEN, CNN ANCHOR: Let's get back to San Diego, California. We have been watching this morning, the hearing for David Westerfield, to confirm one way or another whether he will receive the death penalty. The judge has told us his indication to do just that, to go along with the jury's recommendation. Let's listen in as the formalized sentencing continues.
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DAMON VAN DAM, DANIELLE'S FATHER: ... as he learns how to read and do math, or scrapes his knee rollerblading or invents a new game to play. I'll miss her first date. I know she would be such a smart, independent person. I'll miss seeing her go to the prom. She would have had so much fun getting ready for the big date. I'll miss her graduation. It most likely would have been with honors. She was a hard worker. I'll miss seeing her go off to college, and I'll wonder what she would have become. She often talked about being a veterinarian, a veterinarian or a dentist. I'll miss seeing her on her wedding day. I won't get to walk her down the aisle.
I'll miss seeing her become a mom. She's such a good -- I know she would have been a great mom. As the years pass, and all these things don't happen, all I'll have are the memories of her, some old pictures and videos and dreams of her, which I hope are always as vivid as they are now, and having to know how brutal the last hours of her life were, my heart and my wife's heart have been broken and my other two children have been deeply hurt.
I asked them about Danielle, and here's what they told me. Derek said -- Derek is her older brother. Derek said, "We had a lot of fun playing together, playing board games and video games. She was a good little sister, because whenever I wanted to play with her, she was there to play with me.
And Dillon said, "Danielle is gone, and I miss her because we used to play games together. It was fun playing with her because she was nice. She would not push and shove. She would always tell me she loved me very much."
It's too soon to measure the full impact of Danielle's abduction and murder on our life and their lives. But we know we have a hole in our hearts that will never heal, and we will miss her for the rest of our lives.
Thank you.
UNIDENTIFIED MALE: Thank you. I think Brenda would now like to address the court, your honor.
MUDD: All right.
BRENDA VAN DAM, DANIELLE'S MOTHER: OK. In early November, I started wondering about how I was going to get through the holidays, and I wanted to think of some things I had to be thankful for, and even though I went through this horrible year, I am so thankful to have been blessed with Danielle, and I thank God every day that I had seven years with her, and she was such a wonderful loving child, and I am so thankful for my other two beautiful children, whom I love and adore, and my wonderful husband who has been by my side through this entire ordeal.
I am thankful for a very supportive family and friends, people I didn't even know before Danielle was taken, who have become very dear to my heart. I am thankful for a jury, a dedicated jury, a very intelligent jury, who's not only intelligent, but they're not blind. They saw through all the smoke screens in front of them, and they sought the truth, and they need to be commended for that.
Most of all, I'm thankful for the justice system, because its the justice system is what put him where he belongs. And I'm thankful to all the men and women who were so dedicated to getting all the evidence done in time to make sure that he was put in his proper place.
Now I have my statement. How can I as a mother find words, meaningful words, that would express how this unspeakable crime has affected my family? I can't. Her father can't. Her brothers can't. Yet this is where our family finds ourself in a courtroom standing across from the man who murdered our precious daughter and who greedily stole the heart out of our family.
Our lives are forever changed. Nothing can be the way it was before February 2nd, 2002. I guarantee you, no matter how hard you try, I will not be able to explain to you what it would feel like if this had happened to your own daughter, even though it happened to mine. The pain runs so deep you can't reach to stop it and the missing never ends. The tears are always one memory away, but I can tell you how it felt to not know where Danielle was for 26 terrifying days. To know that someone else knew where she was and it was not her mommy or her daddy, but an evil stranger, it was sickening, and I felt like my heart was breaking in two and I was dying from the inside.
Our precious Danielle was taken by a monster seeking only self- gratification and not thinking about the sweet child that he was harming or how his horrific crime would impact her family, the community and the world.
You sat by smugly as thousands of people frantically searched for Danielle, and her family anguished over finding her. It disgusts me that your sick fantasies and your pitiful needs made you feel that you needed Danielle more than her family. You put your needs over the needs of her entire family, an entire community, an entire nation to find Danielle.
What could make one human being murder another? This is a question I will forever ask myself.
I remember the day Danielle was born. I was so excited to have been given one of the most precious gives you could receive, another life. Being blessed with a little girl was so very special, and Danielle and I had a special bond. We enjoyed doing many things together. She was a real girly girl. We enjoyed painting our nails together, and I enjoyed doing her hair, shopping was such a joy. Some of the most precious moments spent with her were around the kitchen. She always wanted to cook, and although cooking alone would be easier, I couldn't say know because I realized she would only be this age once, and the memories would last a lifetime.
As Danielle grew older and blossomed into a wonderful little girl, I knew she was a shining star, but I did not for a second think that she would be remembered for something like this. She was a beautiful girl with a very kind, loving heart, and one of her favorite things to do during the holidays was to pick an angel off of the tree and go shopping for that special person, who did not have as much as she did. She truly understood that not every child had a life as wonderful as hers.
She loved being with her friends, school, taking dance lessons, piano lessons, and writing in her journal. About three weeks ago, I got the urge to look through some of her journals and other items in her room, and I sobbed when I read the following journal entry through her own private thoughts, let me introduce you to our innocent and loving little girl who always thought of others.
"I like to be nice to all people at school. It makes them feel great, and I know that it is cool to be thoughtful of others. I look at them when they speak to me, and I listen to be fair, because I want to be treated that way."
I have always told all of my children to treat others as they would want to be treated. She just wanted to be liked and loved by everyone and when I read this journal entry, I felt that even though I do not get to teach her anything else in her short-lived life, I did teach her a very important life lesson: being respectful of others.
Danielle loved spending time with her brothers. I can remember how Derek, Danielle and Dillon would play well together. Playing school was one of her favorite games. Of course, she always wanted to be the teacher. She enjoyed being a big sister to Dillon and teaching him things. She really enjoyed reading to him. It made her feel grownup. She looked up to Derek and knew that she was different than he was. She really had to study hard to do well in school, and this is something that comes easy to Derek. She was very willing to study hard, because she wanted to do as well as him in school.
One night as I laid awake in bed, I could hear Derek and Dillon talking. They now sleep in the same room, because they think they can protect each other. They were talking about creating an army of robots that would make the world a safe place. These are comments from two innocent children who miss their sister dearly. Not only have you taken one of the three most precious gifts I have ever received in life, but you've also taken away a sister from Derek and Dillon and the sense of safety that they once took for granted.
I ask you, why did you not let her go? Why didn't you drop her off in a safe place? If you had done so, she would be with her family now and you would not be facing death. What were you thinking as you killed her? Did you not -- did she not touch your heart one bit? If not, you are heartless, you are an empty shell, you are nothing.
If she did, reclaim some decency and apologize to her brothers, her parents, and your own children and this community. This should not be happening to our children. Our children should be able to be innocent children and safe in our community and our world.
When you took Danielle from us, you took away all of our future dreams we looked forward to sharing with her. If you do have a heart, which I think is very unlikely, you will feel some of this pain soon, because you have a daughter of your own. You will miss all of the good times in her life. You have victimized your own children just because you wanted mine.
Although your children may try to move and change their names, they will always live with the fact that their father was a cold- blooded killer. Danielle was not an object to be taken. She was a human being to be lovingly cared for by her parents. You do not deserve any leniency, any mercy, because you refused to give it to Danielle. You have to live with the memory of her death. I will cherish the memory of her life.
MUDD: OK.
Anything else, Mr. Dusek.
DUSEK: Just briefly. Make sure we understand one thing, the defendant gets no benefit, or should get no benefit, for demanding a speedy trial. He was not trying to save the community, the system or anybody any anguish. He was trying to beat a murder charge. That's why he rushed to trial.
Aired January 3, 2003 - 11:38 ET
THIS IS A RUSH TRANSCRIPT. THIS COPY MAY NOT BE IN ITS FINAL FORM AND MAY BE UPDATED.
CAROL LIN, CNN ANCHOR: We're going to go into the court hearing right now of David Westerfield's sentencing. There you see Judge Mudd getting ready to start the proceedings.
(JOINED IN PROGRESS)
JUDGE WILLIAM MUDD: The defense response to the points and authorities and arguments filed by the people, points and authorities in opposition to the motion to reduce the penalty to life filed by the people, people's memorandum regarding certification of the record, which we'll discuss later, points and authorities in opposition to the defendant's motion for dismissal of the special circumstance filed by the people.
I'd like to hear argument on both of those motions at the same time -- Mr. Feldman.
STEVEN FELDMAN, DEFENSE ATTY.: With the court's permission I want to address the 1385 as opposed to the 190.4, so that at least you'll track my argument.
MUDD: All right.
FELDMAN: Your honor, it appears today America as changed. America is now a place where the media turns capital murder trials into summer entertainment. The local attorneys make disparaging remarks about counsels in the court on a nightly basis, and where the entertainment for the evening becomes the nightly scorecard.
Our motions address constitutional issues, specifically and initially, the issue of outrageous governmental misconduct. The court recognizes that our system is one of a social contract. It's a system that's designed to give due process as opposed to crime control, and this is certainly a qualitative difference. We are a society of law. We have a social contract. In our society, the ends do not justify the means.
In this case, our social contract, the court found, was violated by law enforcement. The court specifically indicated that the court had troubles with some of the testimony that was offered by prosecution witnesses, and in specific, three particular law enforcement officers who were involved in the greater than 16-hour interrogation process of Mr. Westerfield. I speak to Pargo (ph), Kot (ph), Ott and Keyser.
I say initially, our Supreme Court says death is different. Death is reserved for the worst of the worst people, not necessarily the crimes, but the people.
In our case, Detective Ott on May 10th was asked whether or not he was aware that he was intentionally violating the constitutional rights of Mr. Westerfield, and his answer at 15:46, yes.
So sir, you made a decision to violate Mr. Westerfield's constitutional rights after talking to your superiors, after running it up the chain of command in the police department? Yes. Why? Quote: "My emotions had gotten away from me." And he admitted to at least two separate intentional constitutional violations.
In hearing the evidence, the court indicated this was -- quote -- "The highest dilemma on the chart of stress and blood pressure that this court had to deal with," and that was the follow-up interview process. You indicated that what was troubling you was the testimony of Thrasher (ph) and Parga (ph), and that this was a close call. You said I'm troubled, I'm deeply troubled by the fact there's no tape recordings involving the 16-hour interrogation of aggressive confrontation by Ott and Keyser with Mr. Westerfield.
You said, I'm troubled because so much of what occurs on that road trip, to use Mr. Armstrong's analysis, is based on the credibility of Ott and Kaiser. The court knows a lot about them, having dealt with their past, but more important, it appears to the court that they have been less than candid, if not outright committed perjury. I'm deeply troubled by that, but your honor at the time indicated at the time there was nothing to do.
I submit to you there is something to do. We are a society with a social contract. We cannot allow the guardians of our civil liberties to deliberately and intentionally, with premeditation, clearing it through their superiors, to intentionally violate our citizens's constitutional rights. The ends simply do not justify the means, your honor.
And so, although this court find concern with the veracity of these two key witnesses in this, the most serious of cases, the death penalty case, those officers continued to act as law enforcement officers to continue in their pattern of conduct, and Mr. Westerfield we know will die in prison.
At least as to the first part, the request for dismissal, on governmental misconduct, the authority has the authority to strike death as a sanction for this admittedly perjurious conduct.
On to 190.4, your honor.
Uniquely, I'll say the participants but/combatants, are aware of how an egregiously our constitutional system of justice has been attacked in this case. It's been attacked in the print media. It's been attacked in the visual media. We're all under attack by doing our jobs. The independence of the court is threatened, the independence of the judiciary is threatened by these behaviors, your honor. We fear that politics in this case, in this case, had a role in the determination as to whether or not to seek death for Mr. Westerfield. That's a terrible thing, politics. Had the killing occurred in another state, there would be no death penalty. If we went to whichever the Carolinas Susan Smith was involved in, and this is in response to Mr. Dusheck's (ph) argument that there's no more egregious offense than this, we look to Susan Smith, we look to any other state in the Union which doesn't impose the death penalty, we look to multiple killings, we look to other countries in the world who won't even extradite American citizens in they face the death penalty.
But this is a separation of powers issue, your honor, because your honor is statutorily obligated to independently evaluate the evidence, act as a 13th juror and utilize your honor's experience, which I think is qualitatively different than that of many others in the system.
Your honor has demonstrated by history your independence. We respect the court's independence. We know that in at least two major cases (UNINTELLIGIBLE), the court has acted as the court believed appropriate, notwithstanding the public outcry.
I don't believe your honor will be influenced by attacks, by self-promoting, narrow minded journalists posing as commentators, who send their minions asking around neighborhoods in the dark hours of the morning, who look to subvert the system by engaging in personal vituperative attacks on counsel, the court, the prosecution and the system, whose only purpose is to generate audience, but who cynically undermine our system of constitutional justice and the faith of our public in our system.
Local newspaper editorials will not adversely the court's ruling, nor the local press claims in an editorial, that it's the defendant's job to prove his innocence and then strokes itself for saying how accurate it was. The court won't be influenced by that, I'm confident.
Nor will the court be influenced unfairly by so-called experts who have never met a camera they don't like, who are so interested in promoting their egos that they attack counsel and don't educate the public, who misuse their office. I say to you, don't allow them to sabotage our system.
I ask the court to take the high road. The high road in this case, your honor, is life. Look at David Westerfield. On a proportionality issue, on a proportionality issue, if your honor, I submit, was to compare Mr. Westerfield's background against that have virtually any defendant that's appeared before you, I think you would find his is a mitigated background, and your honor has the ability to make the finding that the mitigation in this case outweighs the aggravation, and you can in your power spare Mr. Westerfield's life.
I ask you, take the high road. I ask you, don't acquiesce to the heart less killing of another. I ask you, don't be swayed by the lynch mob mentality we've seen in our community.
Life without possibility of parole, your honor, provides a closure in this case that we can't get otherwise. We know, we know, as your honor's pointed it out, and we know historically and factually, there's hundreds of men on California's death row. There will be no appointment of counsel for Mr. Westerfield for years. Every time there's a movement on any case of any kind that's appointed on the press, the Van Dam's wounds will open, the community's wounds will open. That's not the right thing. I don't think it's appropriate that our community sit through years of continuously trying at the same scab.
Approximately 80 years ago, Clarence Darrow waived jury in the case of Leopold and Loeb. In that case, Leopold and Loeb had decided they would essentially commit the perfect crime, and they planned, and they premeditated, and they deliberated, and they thought about, and they concealed, and they lied and they hid the evidence of the killing of Bobby Franks. Clarence Darrow waived jury, your honor. He argued for 12 hours to the court that life was appropriate. I'm not going to argue for 12 hours.
Your honor, I would respectfully submit in this case, life is the only appropriate resolution.
Thank you.
MUDD: All right. Who's going to speak? All right.
GEORGE CLARKE, DEP. DIST. ATTY.: Actually, I'll be addressing just the motion to dismiss your honor, and with just some very brief comments. I think it's been covered in the pleadings to a large extent. This court had the benefit, fortunately, of hearing all of the evidence, in terms of the investigation conducted by the San Diego Police Department, and both its sworn and non-sworn personnel. The Court heard all of that evidence, and ultimately entered rulings about the admissibility of aspects of that particularly investigation.
I think the evidence in this case shows that this court heard, showed that this was the finest investigation, to our knowledge, conducted by any law enforcement agency in this county, if not elsewhere. The court had difficulties with some aspects of that investigation, and the court ruled accordingly preventing the jury from hearing more damage in the case indicating Mr. Westerfield's case. That was an appropriate sanction, that was a sufficient sanction, and ultimately, that should be the sanction that was entered as a result of those, again, portions of the investigation that the court had difficulty with.
The remaining investigation and even including those particular portions of it, however, do not rise to the level of anything approaching where the court should enter its discretion and ultimately either dismiss a special circumstance or reduce the penalty as a result of that conduct, particularly, I think in the context of what again was what we believe to be the finest investigation conducted in this county, and accordingly, the court should not grant the motion to dismiss the special circumstance or reduce the penalty based on police conduct.
MUDD: All right. Mr. Dusek? JEFF DUSEK, ATTY.: Regarding the 190.4 motion, I am confident, I am absolutely certain that this case was tried regardless of the media. The participants on this side of the bar tried this case upon the evidence and the witnesses that came before this court, and I am absolutely certain that the court will make its decision based upon what happened in this courtroom during the trial.
We are not concerned with what happened elsewhere, other people had their jobs to do. This was not a politically motivated case. This was a criminally motivated case. The factors that the court is to consider are the evidence that was presented in this case. Whether or not the jury's verdict should be reduced should be ignored basically. The evidence in this case was overwhelming. This was as strong a case as we are going to see in this county. A circumstantial case, yes, but a strong circumstantial case, and in reality, circumstantial cases are best.
The defendant had many, many factors that he had to overcome and they couldn't. The jurors saw through the smoke screen, the diversions that were presented. The physical evidence, the defendant's own statements convicted him in this case.
If you recall, when the penalty phase was going on, the jurors asked to have reread the defendant's statement or listen to the statement to Paul Redden (ph) and to the media. Although we can only guess why they wanted that, I think it's fairly certain they wanted to see some humanity on his part. Give us a reason to spare your life for this horrible crime that you convicted -- that you committed. We have all seen that tape. We have all seen his own words. He showed absolutely no humanity, no remorse, no compassion for what he did and for the van Dams.
He knows very well what is the sentence -- what the appropriate sentence is in this case. He told Paul Redden (ph) when he was interviewed, Someone who does this type of crime ought to be taken out and shot immediately. He told us that on tape to Paul Redden. He knows what it's worth, not what happened in South Carolina, North Carolina or anywhere else, and his view is the appropriate view. It certainly is the view that the jury found to be appropriate, which was the appropriate view.
The guilt evidence was overwhelming. Nobody else did this crime but him, and the crime is horrific. There is nothing worse than taking a child out of her own bedroom, kidnapping her and doing whatever he did to her before he killed her. He is deserving of the death penalty. It should not be reduced.
MUDD: OK. The court is first going to address the request and motion to dismiss the special circumstance as a result of police misconduct. I am going to start by noting the following observations.
First of all, it was a defense motion to suppress the statements that led the court to hold an enliminee (ph) hearing out of the presence of the public, and I'm going to once again say this that this case was tried in my courtroom in front of a jury of concerned citizens that heard only the evidence that was allowed. It is very apparent and very obvious that the matter that we're discussing right now was done off the record as far as the public is concerned. Those records will be released on Monday. But the bottom line is very important to note, and that is that the court, this court, made the decision to hold those hearings at the request of both counsel out of the presence of the public just for the reason that this incident highlights, and that is that the media would not have sat on this. It would have been all over the world as a practical matter, and these hearings took place before we even attempted to select a jury.
But I do note that the motion was made by the defense. The court heard all of the evidence, viewed the tapes. Heard the testimony of officers, and it is to be noted that the court denied the people the right to present that evidence to this jury, evidence that in many respects, many respects, was very damning to the defense. The people were deprived of that evidence. The jury never heard it.
Second, as relates to the conduct of officers Ott (ph) and Kaiser (ph) in their aborted efforts to visit Mr. Westerfield in the jail, the court suppressed all of that evidence. In addition to that, the jury in this case never heard any of that testimony.
As a result, it is clear that the defendant suffered absolutely no, zero, zip, nada prejudice in this trial as a result of the conduct of these officers.
As a result, that motion is denied.
Now, Mr. Feldman has raised an interesting point, and I'm glad that he raised it, and that is that we have pundits across this country that know what we're doing here. They know better than we do. They're all experts. They're on the national media. They determine what the conduct is. They determine what the rules should be. They determine what the law in the state of California is.
That's absolutely preposterous, but it is one of the things that everyone in this trial has had to live with, counsel, the court, and as a result, I'm going to take just a couple minutes, not to bore the lawyers in the audience, but to educate to a certain extent the pundits that think they know everything.
First of all, the nature of the motion that is being brought in this case is mandatory under the laws of the state of California. The law requires me, as the trial judge, to complete five separate obligations when reviewing such an automatic application to reduce the penalty from death to life.
Those areas that I am required to cover are as follows: first, to review the evidence; second, to consider all of the aggravating and mitigating circumstances that were presented in the trial; third, to determine whether the jury's decision was contrary to law or the evidence that was presented; fourth, to state on the record the reasons I am making the decision I am making; and five, to direct that those findings be entered into the clerk's minutes. My function as the trial judge in deciding this motion is to reweigh independently the evidence of aggravating and mitigating evidence and circumstances and then determine whether, in my judgment, the weight of the evidence supports the jury's verdict.
The court in this circumstance must only consider the evidence that was properly presented to the jury, so even though I've heard a lot of material over the months preceding the trial, the fact is I am obligated to work with the evidence that was presented in the courtroom and that which the jury heard. The court under this circumstance must not allow the presentation of additional evidence, nor allow victim impact statements, nor review any probation reports, all of which this court has not done.
In addition to that, the court may not contrast this case with other cases in which this court has imposed the sentence of death. With this overview, the court will now recite its reasons, as required by law as to the motion brought.
This court has independently considered all of the evidence presented at the trial, and the arguments of counsel. It is not the court's intention to list every item of evidence and all arguments presented that were considered by the court. For the purpose of stating the court's reasoning, this will be a recital of the principal factors that most powerfully informed and influenced the decision at hand. A, the circumstances of the crime and the special circumstances.
The circumstances of this case and this crime weigh heavily in favor of the upholding of the jury's verdict of death. The victim, Danielle van Dam, age 7, was taken out of her home in the middle of the night while sleeping in her own bed. The physical evidence overwhelmingly confirms that the defendant then returned to his house with the victim, taking her from his bed to his car to his motor home. The defendant then drove in an almost aimless fashion for two days.
The victim's hand print was found above the bed in the motor home as well as her hair being found in the sink of the motor home. Her blood was found both on the floor of the motor home and on the defendant's jacket.
The uncontested evidence establishes well beyond any reasonable doubt that the blood, hand print, and hair were from Danielle. The hair length was completely consistent with a recent hair cut she had prior to passport photographs being taken. The victim's body, when found, was unclothed and had teeth missing, the likely result of trauma to her face. The weight of this factor is of enormous magnitude.
B, the presence or absence of past criminal conduct by the defendant. The defendant's niece testified in this case about an incident that occurred many years ago when she was a young girl. While sleeping in a room with her cousins, she awoke to the defendant kneeling next to her. He put his fingers in her mouth rubbing her teeth. This instance -- this incident is disturbing to say the least. In addition, the defendant was convicted of the possession of child pornography in the instant case. Both of these instances of criminal activity weigh against the defendant.
C, prior felony convictions. There are none.
D, influence of extreme mental or emotional disturbance. There was none.
E, participation or consent by the victim. There was none.
F, the defendant's reasonable belief and moral justification or extenuation. There was none.
G, extreme duress or substantial domination of another. There was none.
H, the capacity of the defendant to appreciate the criminality of his conduct. The defendant has the capacity to appreciate the criminality of his conduct.
I, the age of the defendant at the time of the crime. This factor is neutral at best.
J, whether the defendant's participation in the crime was relatively minor. The defendant was not a minor participant in this crime.
K, other factors extenuating the gravity of the crime. The defendant presented many witnesses attesting to his generally positive contributions to his family, his friends, and his career. The court recognizes these as attributes that are mitigating.
Finally, my ruling. Based on a careful and an independent reweighing of the evidence, the court finds that the weight of the evidence as outlined above supports the jury's verdict of death. The motion to modify the sentence is hereby denied.
At this time, ladies and gentlemen, the court is going to take a recess to read and review the probation officer's analysis and report, and will resume the bench for the formal sentencing. We are in recess momentarily.
Peggy (ph), I'll take the report.
LIN: All right. Judge Mudd has spoken. He has denied the defense's request to drop the special circumstances. He supports the jury's decision of a death sentence, so David Westerfield will die by lethal injection. Of course, everybody expects that he, as every death row inmate virtually has, will go through the lengthy appeals process that the California legal system will allow him to actually make those requests for an appeal in his case.
(INTERRUPTED BY LIVE EVENT)
MILES O'BRIEN, CNN ANCHOR: Let's get back to San Diego, California. We have been watching this morning, the hearing for David Westerfield, to confirm one way or another whether he will receive the death penalty. The judge has told us his indication to do just that, to go along with the jury's recommendation. Let's listen in as the formalized sentencing continues.
(JOINED IN PROGRESS)
DAMON VAN DAM, DANIELLE'S FATHER: ... as he learns how to read and do math, or scrapes his knee rollerblading or invents a new game to play. I'll miss her first date. I know she would be such a smart, independent person. I'll miss seeing her go to the prom. She would have had so much fun getting ready for the big date. I'll miss her graduation. It most likely would have been with honors. She was a hard worker. I'll miss seeing her go off to college, and I'll wonder what she would have become. She often talked about being a veterinarian, a veterinarian or a dentist. I'll miss seeing her on her wedding day. I won't get to walk her down the aisle.
I'll miss seeing her become a mom. She's such a good -- I know she would have been a great mom. As the years pass, and all these things don't happen, all I'll have are the memories of her, some old pictures and videos and dreams of her, which I hope are always as vivid as they are now, and having to know how brutal the last hours of her life were, my heart and my wife's heart have been broken and my other two children have been deeply hurt.
I asked them about Danielle, and here's what they told me. Derek said -- Derek is her older brother. Derek said, "We had a lot of fun playing together, playing board games and video games. She was a good little sister, because whenever I wanted to play with her, she was there to play with me.
And Dillon said, "Danielle is gone, and I miss her because we used to play games together. It was fun playing with her because she was nice. She would not push and shove. She would always tell me she loved me very much."
It's too soon to measure the full impact of Danielle's abduction and murder on our life and their lives. But we know we have a hole in our hearts that will never heal, and we will miss her for the rest of our lives.
Thank you.
UNIDENTIFIED MALE: Thank you. I think Brenda would now like to address the court, your honor.
MUDD: All right.
BRENDA VAN DAM, DANIELLE'S MOTHER: OK. In early November, I started wondering about how I was going to get through the holidays, and I wanted to think of some things I had to be thankful for, and even though I went through this horrible year, I am so thankful to have been blessed with Danielle, and I thank God every day that I had seven years with her, and she was such a wonderful loving child, and I am so thankful for my other two beautiful children, whom I love and adore, and my wonderful husband who has been by my side through this entire ordeal.
I am thankful for a very supportive family and friends, people I didn't even know before Danielle was taken, who have become very dear to my heart. I am thankful for a jury, a dedicated jury, a very intelligent jury, who's not only intelligent, but they're not blind. They saw through all the smoke screens in front of them, and they sought the truth, and they need to be commended for that.
Most of all, I'm thankful for the justice system, because its the justice system is what put him where he belongs. And I'm thankful to all the men and women who were so dedicated to getting all the evidence done in time to make sure that he was put in his proper place.
Now I have my statement. How can I as a mother find words, meaningful words, that would express how this unspeakable crime has affected my family? I can't. Her father can't. Her brothers can't. Yet this is where our family finds ourself in a courtroom standing across from the man who murdered our precious daughter and who greedily stole the heart out of our family.
Our lives are forever changed. Nothing can be the way it was before February 2nd, 2002. I guarantee you, no matter how hard you try, I will not be able to explain to you what it would feel like if this had happened to your own daughter, even though it happened to mine. The pain runs so deep you can't reach to stop it and the missing never ends. The tears are always one memory away, but I can tell you how it felt to not know where Danielle was for 26 terrifying days. To know that someone else knew where she was and it was not her mommy or her daddy, but an evil stranger, it was sickening, and I felt like my heart was breaking in two and I was dying from the inside.
Our precious Danielle was taken by a monster seeking only self- gratification and not thinking about the sweet child that he was harming or how his horrific crime would impact her family, the community and the world.
You sat by smugly as thousands of people frantically searched for Danielle, and her family anguished over finding her. It disgusts me that your sick fantasies and your pitiful needs made you feel that you needed Danielle more than her family. You put your needs over the needs of her entire family, an entire community, an entire nation to find Danielle.
What could make one human being murder another? This is a question I will forever ask myself.
I remember the day Danielle was born. I was so excited to have been given one of the most precious gives you could receive, another life. Being blessed with a little girl was so very special, and Danielle and I had a special bond. We enjoyed doing many things together. She was a real girly girl. We enjoyed painting our nails together, and I enjoyed doing her hair, shopping was such a joy. Some of the most precious moments spent with her were around the kitchen. She always wanted to cook, and although cooking alone would be easier, I couldn't say know because I realized she would only be this age once, and the memories would last a lifetime.
As Danielle grew older and blossomed into a wonderful little girl, I knew she was a shining star, but I did not for a second think that she would be remembered for something like this. She was a beautiful girl with a very kind, loving heart, and one of her favorite things to do during the holidays was to pick an angel off of the tree and go shopping for that special person, who did not have as much as she did. She truly understood that not every child had a life as wonderful as hers.
She loved being with her friends, school, taking dance lessons, piano lessons, and writing in her journal. About three weeks ago, I got the urge to look through some of her journals and other items in her room, and I sobbed when I read the following journal entry through her own private thoughts, let me introduce you to our innocent and loving little girl who always thought of others.
"I like to be nice to all people at school. It makes them feel great, and I know that it is cool to be thoughtful of others. I look at them when they speak to me, and I listen to be fair, because I want to be treated that way."
I have always told all of my children to treat others as they would want to be treated. She just wanted to be liked and loved by everyone and when I read this journal entry, I felt that even though I do not get to teach her anything else in her short-lived life, I did teach her a very important life lesson: being respectful of others.
Danielle loved spending time with her brothers. I can remember how Derek, Danielle and Dillon would play well together. Playing school was one of her favorite games. Of course, she always wanted to be the teacher. She enjoyed being a big sister to Dillon and teaching him things. She really enjoyed reading to him. It made her feel grownup. She looked up to Derek and knew that she was different than he was. She really had to study hard to do well in school, and this is something that comes easy to Derek. She was very willing to study hard, because she wanted to do as well as him in school.
One night as I laid awake in bed, I could hear Derek and Dillon talking. They now sleep in the same room, because they think they can protect each other. They were talking about creating an army of robots that would make the world a safe place. These are comments from two innocent children who miss their sister dearly. Not only have you taken one of the three most precious gifts I have ever received in life, but you've also taken away a sister from Derek and Dillon and the sense of safety that they once took for granted.
I ask you, why did you not let her go? Why didn't you drop her off in a safe place? If you had done so, she would be with her family now and you would not be facing death. What were you thinking as you killed her? Did you not -- did she not touch your heart one bit? If not, you are heartless, you are an empty shell, you are nothing.
If she did, reclaim some decency and apologize to her brothers, her parents, and your own children and this community. This should not be happening to our children. Our children should be able to be innocent children and safe in our community and our world.
When you took Danielle from us, you took away all of our future dreams we looked forward to sharing with her. If you do have a heart, which I think is very unlikely, you will feel some of this pain soon, because you have a daughter of your own. You will miss all of the good times in her life. You have victimized your own children just because you wanted mine.
Although your children may try to move and change their names, they will always live with the fact that their father was a cold- blooded killer. Danielle was not an object to be taken. She was a human being to be lovingly cared for by her parents. You do not deserve any leniency, any mercy, because you refused to give it to Danielle. You have to live with the memory of her death. I will cherish the memory of her life.
MUDD: OK.
Anything else, Mr. Dusek.
DUSEK: Just briefly. Make sure we understand one thing, the defendant gets no benefit, or should get no benefit, for demanding a speedy trial. He was not trying to save the community, the system or anybody any anguish. He was trying to beat a murder charge. That's why he rushed to trial.
