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LARRY KING, HOST: Tonight, the van Dam murder trial -- nine days and counting, and still no verdict from the jury in San Diego. What's going on?
Did David Westerfield kidnap and murder his neighbor, seven-year- old Danielle van Dam this past February? Could we be headed for a hung jury?
Tonight, our panel of experts get into it. Joining us in Los Angeles, jury consultant, Jo-Ellan Dimitrius. In New York, child protection advocate Marc Klaas, whose daughter Polly was kidnapped and murdered in 1993. Also in New York, Court TV anchor and former prosecutor Nancy Grace. Back in L.A., famed defense attorney Mark Geragos. And in San Diego, Steve Fiorina covering the trial for KGTV.
The van Dam murder trial and your phone calls -- next on LARRY KING LIVE.
Well, the obvious first question, we'll go to Jo-Ellan Dimitrius, who is a jury consultant, who deals with these things all the time. What's your read?
JO-ELLAN DIMITRIUS, JURY CONSULTANT: Well, based on what I know happened today, actually an observer in San Diego noticed that two of the jurors came out, because they're pretty well protected. They're allowed to have lunch in the court.
But they also are allowed to go out. And in this situation, two of the female, the older female jurors came out and they were having lunch together at an undisclosed location. And they were very heavy in conversation.
So, based on the continuous requests for feedback about the etymologist and the time of death, and the fact that there are two women that are out, my experience in these kinds of cases where there's long, protracted deliberations, is that groups go off in factions.
You know, most people don't like to go out with somebody they're arguing with in the jury room for lunch. They like to have a little bit of a break. And so they tend to go out with people of like ...
KING: So your read is ...
DIMITRIUS: My read is, it's a 10 to two, that there's two people that are hung up right now. And clearly the issue is, when was the body dumped. KING: It will be 10 for conviction, you believe.
DIMITRIUS: I think so.
KING: All right.
DIMITRIUS: I think so.
KING: Nancy Grace, your forecast. You've usually been a lot right on this program. But you said there would be a verdict the next day. Obviously, this jury has surprised you.
NANCY GRACE, ANCHOR, COURT TV: They have surprised me. I keep going back to the obvious fact, Larry, that her blood -- Danielle's blood -- is on his floor, on his jacket.
And I don't care what an entomologist has to say about what a bug may have done last February. That does not negate the DNA ...
KING: All right, but...
GRACE: ... evidence. But I agree ...
KING: ... but why are they out ...
GRACE: ... with Jo-Ellan ...
KING: ... nine days?
GRACE: I agree with Jo-Ellan, that if you look at those nine days, they have only been deliberating less than 30 hours. I've never seen a jury have it so easy.
I predict -- you know, it's California. They're having a little aroma therapy. They're having a little foot massage.
They have not worked a full day yet. They certainly do not have working lunches. They leave at lunch time. They come back when they ask Judge Mudd, they're calling their own hours.
So, really, in deliberations they have not been out that long. But I agree with Jo-Ellan. I think it's a nine to three or a nine to two split, because if it had been a one hold-out, Larry, that one hold-out would have been beaten into submission by now.
KING: And your read, Mr. Geragos.
MARK GERAGOS, DEFENSE ATTORNEY, LOS ANGELES: Well, if they're getting aroma therapy, they're not doing it on the juror's salary of $5 a day, then. So I don't know. Apparently they're ...
GRACE: I'm saying ...
GERAGOS: ... independently wealthy.
GRACE: ... the defense provided it. GERAGOS: The fact of the matter is, in a case like this where you have both a potential for a penalty phase, there's no rush. I mean, there's no reason in the world for this jury to do anything but go through the evidence.
They had an unbelievable number of witnesses here. I think there was almost 98 witnesses, many of them called more than once, over -- almost 200 exhibits ...
KING: So you're saying they're doing their duty.
GERAGOS: They're doing exactly what they're supposed to do. They're supposed to go through and methodically look at the evidence.
Remember, they didn't exactly rush through this trial in the first place. The prosecution didn't go through this like greased lightning.
KING: Well, they're not supposed to do what Nancy thought they would do, just go in and say, there's the blood. It's obvious.
GERAGOS: Never. That's what, I mean, it's never going to be what you're going to want a jury to do, number one. And number two, you know, to a certain extent, the prosecutor tended to invite this upon himself.
When he went in, in that closing argument and started to speculate about the Westerfields going into the house and spending two hours there and being in the closet and then coming out, and there was no real forensic evidence to support that, what he invited them to do, and jurors to do, is to start to speculate on a theory, basically over-try this case.
And that happens a lot of times.
KING: Before we get Steve's read, right from at the scene, what is yours, Marc Klaas?
MARC KLAAS, DAUGHTER POLLY ABDUCTED AND MURDERED IN '93: Well, you know, Larry, I think in some ways, this is probably the most scrutinized jury since O.J. Simpson. And I think that they're taking their responsibility very seriously.
You know, in our case, when Polly's killer was on trial, they had confession. They had -- he took them to the body. It still took four days for the jury to come back. They did work full days, I must say.
These poor parents -- I spoke to Brenda van Dam the other day. She's an absolute mess. I wish people would understand that, and I wish this jury would really get off the dime and start deliberating a little more conscientiously and get this thing finished with.
DIMITRIUS: You know, one thing that I wanted to add is, I think Marc is absolutely correct. This jury is taking their time. And the reason behind that is, they have every night to go back home and recharge. They can recharge their batteries. They can come back and go at it with great vim.
And that's the difference we see between a jury that isn't sequestered, versus one that is, where they have to be around each other 24 hours.
KING: Steve, and what's the word there right at the scene in San Diego?
STEVE FIORINA, KGTV, SAN DIEGO: They were faced with so much confusing and contradictory evidence. I'm not surprised at all that it's gone this long. In fact, I would not be surprised to see it go into next week.
The point that was brought up about two of the jurors were seen today somewhere, talking together amongst themselves, they've been together since May 28th. These people began jury selection that far back.
Many of them have bonded over the course of this, and to suggest that they are talking about the case during their lunch hour -- they have been told time and again by Judge Mudd, they are only to deliberate in the deliberation room. They are not to talk about this outside whatsoever.
To look at the personas of the jurors, we have seen them virtually bubbly a few days late last week and early this week. The few that I saw today seemed very serious about what they were doing. But I saw no real change in the way they were looking at each other or treating each other.
They have bonded ...
KING: So, ...
FIORINA: ... much before they ever got into the deliberation room.
KING: So are you saying, Steve, ...
FIORINA: And if ...
KING: ... that you get no read as to anything imminent?
FIORINA: I felt today that there was very little chance. So all of a sudden, in the back of my mind I'm thinking, hey, we could have it this afternoon.
We could see something tomorrow morning. I don't think that that's out of the realm of possibility.
We also talked about what the prosecutor is doing. We've got so much contradictory evidence, but we've also got the emotion of this. And the jurors were told they cannot let emotion enter in. However, it has to.
This was a horrible, horrible crime. Many of them are parents, grandparents. They have seven-year-old kids in their own families. And that has to be weighing on them.
You talked about one or two or three jurors over in the corner saying, I don't believe it. Well, they had so much evidence to look at, not just the blood, the fingerprints, the fibers. They also had the bug evidence, which was very in the opposite direction.
So, you may have one juror sitting there. You may have several that say, you know what? I just don't understand that. So they've had rereads of a lot of the testimony.
They had the forensic entomologist that was brought out to the scene that night and testified for the defense. They had the medical examiner who did the autopsy.
They also had the fiber expert who declared that orange fiber that was on her necklace was the very close match to all these orange fibers found in Westerfield's home and motor home.
Therefore, they've got so many things, they've had the rereads, and they can't just have two or three sentences when they want a reread. They ...
GRACE: But that's not contradictory.
FIORINA: ... take every word by that witness.
GRACE: That's not contradictory, though, not at all contradictory. In fact, nobody ...
FIORINA: Not that brought (ph) hair and ...
GRACE: ... ever challenged ...
FIORINA: ... fiber and fingerprint, no.
GRACE: Nobody ever challenged the fact ...
FIORINA: None of that is contradictory.
GRACE: ... that her blood is in his RV, on his clothes.
FIORINA: Yeah, but these ...
GRACE: Her hair was found in ...
KING: One at a time.
GRACE: ... his trash can with a bottle of bleach ...
KING: Let ...
GRACE: ... he used to clean up.
KING: But isn't it true, Nancy, to what you're arguing, is your mind, as opposed to the 12 people who heard every minute of that trial. GRACE: Well, actually, I ...
KING: They were there. We weren't.
GRACE: Actually, I did hear every minute of the testimony, and those particular facts were not contradicted.
KING: So maybe you're saying ...
GRACE: The main contradictory evidence ...
KING: ... this jury is strange?
GRACE: I'm saying that I don't understand, with the victim's blood in his home and on his clothing, and her hair in his trash can with a bottle of bleach to clean up the scene, what the holdup is. However, the etymology testimony was very confusing.
KING: Well, let me get a break and we'll pick up with more. Our panel is with us the whole way. Your phone calls are included.
Lisa Beamer is here tomorrow night. Don't go away.
KING: When Steve Fiorina was saying that the jury was not discussing this outside of the jury room, both Jo-Ellan and Mark were about to leap on the table.
Are you saying you know they ...
GERAGOS: Well, I hate to disabuse anybody of what the judge tells you, that you're not supposed to discuss it. I can't tell you how many times, virtually every case I have, there's some report of a juror who's talking in the elevator to another juror, or a juror down in the cafeteria who doesn't realize that my investigator is sitting at the next table over, and they're talking about the case.
It's human nature. You can't get away from it. But it's in the -- it's in the air, I mean, in this -- and this case, especially. It's virtually impossible for them not to be consumed by it.
KING: Is it encouraging, Jo-Ellan, that they haven't said anything to the judge like, it's hopeless.
DIMITRIUS: Oh, I think so. But I think probably, towards the end of this week, it may become that way, at which point what the judge will do is to issue what they call an Allen charge, which is basically saying to these folks, look, folks. You've been good jurors, you've been conscientious. But we need to have a unanimous verdict.
And it's basically an order that he gives to them. And it's like the last minute.
GERAGOS: In California, there's just a raging controversy, because the Allen charge -- which you can use in federal court, which says, we've wasted enough time and energy on this case, and we don't want to do it again -- has been declared disfavored in California.
But there's some recent cases where there's a 11 to one or 10 to two splits, where judges have removed people here in California. And the courts of appeal have been fighting this out.
There's a recent Supreme Court case as to how far ...
KING: And remove people from the jury?
GERAGOS: ... from the jury. I mean, there's been -- there have been cases recently, within the last six months, that have been decided at the appellate level here, that tells to judges, you have to be very careful if you remove one of those hold-out jurors.
KING: Since this is life or death, Nancy, does this reinforce your faith in the jury system or cause doubts?
GRACE: Right now, I think I'm like everybody else in America other than those 12 jurors, wondering what's going on, and I'm concerned.
I have faith in the jury system. I hope that they are going through all the evidence, as they should.
But I think the jury often -- we put a jury up on a pedestal. They're just like you and me. I think they do talk about the case when they're not supposed to. I think they talk about it amongst themselves in groups, which they are not supposed to do.
And I think they saw a pressure to outside influences.
I agree with Jo-Ellan, at a certain point, they've either got to be dynamited -- which is a phrase used to describe the Allen charge, that reminds them, their duty is to everybody, to the public, the victims, the defendant and the public that has impaneled them.
GERAGOS: You know, the one thing, though, Nancy, I -- when you say putting them up on a pedestal, I put the system up on a pedestal. And if you have jurors, and they're going through, and they're requesting the read-backs, and they're requesting to take a look at the evidence, I think that that's wonderful.
I think that's exactly what they're supposed to do.
GRACE: I think that's wonderful, too, Mark ...
GERAGOS: That reinforces ...
GRACE: ... Geragos, but I ...
GERAGOS: ... the fact that they're ...
GRACE: ... do not agree ...
GERAGOS: ... actually paying attention.
GRACE: I do not agree ...
GERAGOS: I don't want a jury that's going to ...
GRACE: ... with banker's hours ...
KING: Let him finish, Nancy.
GERAGOS: Wait, these banker's ...
GRACE: ... and two-hour lunches.
GERAGOS: We don't know ...
GRACE: They need to get to work.
GERAGOS: ... we don't know whether or not the judge made some kind of accommodations based on doctors' appointments. We don't know if there's child care issues.
GRACE: Yes, we do. He has ...
GERAGOS: We don't know if the judge has decided ...
GRACE: ... made those accommodations.
GERAGOS: ... we don't know if the judge has decided that he's going to make these, or let these jurors have control of their own destinies, so that he doesn't lose any.
Because of you lose one juror, you have to go back to start. And you have to start all over again, which is, I'm sure he doesn't want to do.
KING: Marc ...
GERAGOS: So maybe he's accommodating that.
KING: Marc Klaas, isn't the ultimate of all this, so what if we wait some days. Don't we want a corrected, logical, well-judged, well-received, well-researched jury?
KLAAS: Well, we want the truth to come out, and we want them to convict this guy.
KING: So if that ...
KLAAS: I agree with -- listen, ...
KING: Wait, hold, hold it. What if the truth doesn't convict him, Marc? I mean, you -- see, you've convicted him. And if ...
KLAAS: Well, you know, I ...
KING: ... all -- they're doing their duty, you don't ... KLAAS: ... you know, Larry, I ...
KING: ... convict him, right? You just said that.
KLAAS: I have to agree.
KING: You just said we want him convicted.
KLAAS: Larry, I have to agree with Nancy. Everything is everywhere -- the hair, the fiber, the blood. It's on his clothing. It's in the RV. It's even in his four -- it's in his SUV. It's in his bed.
Everything's everywhere. I mean this guy has convicted himself, simply by the fact that he didn't do a very good job of cleaning up when he bleached everything out.
So, you know, I think it's pretty clear that this man is guilty.
I would think that if David Westerfield were a poor, black man, this jury would have been back in two days.
KING: Oh, well that's some -- Steve, is that ...
KLAAS: Well, you know ...
KING: ... is that the general feeling in the area? Is it a feeling that ...
FIORINA: I think since day one of the -- one of the topics today was whether or not there is any possibility the jury feels there's no wiggle room, because prosecutors asked for first degree murder and kidnapping, which then would carry the possibility of the death penalty.
There is no lesser included charges to be considered. So there's some debate whether or not some of the jurors may think, well, you know, he may be guilty. But what if, for instance, he killed her in the bedroom and then there's no kidnapping. If there's no kidnapping, there's no first-degree murder.
So maybe they're sitting there debating points of law rather than evidence at this point. We don't know.
KING: Could that happen, Jo-Ellan? We don't know. So why are we making ...
DIMITRIUS: Oh, sure.
KING: ... presumptions?
DIMITRIUS: Well, because ...
KING: We don't know.
DIMITRIUS: We don't know, but based on the talent of all the folks that are on the show this evening, I think we've all had a lot of experience with jurors. And we know from talking to them after the fact, what they talk about, what their issues are.
Certainly, talking about ...
KING: But it is possible, is it not, that we all could be thinking one way, and they're thinking in a way we ain't thinking, because they were there. We weren't.
DIMITRIUS: Absolutely. Absolutely. Look at the O.J. jury.
KING: OK. You were -- you were a jury selector in that jury, right?
DIMITRIUS: I was.
KING: That jury came back how fast?
DIMITRIUS: Three hours.
KING: OK. We all read them wrong.
GERAGOS: And they were sequestered. And their -- and they didn't -- they knew that they didn't have to go into what's called the penalty phase.
GERAGOS: So all of those things factor in.
The fact of the matter is, is that I could go after and give you chapter and verse, juries in this county or in this state that have been out for 30 days and come back with a conviction, that have been out for 17 days and come back with a conviction, that have gone out for nine days and come back with a conviction.
You don't know what they're thinking. As long as they're looking at the evidence, I don't see why there's any great hue and cry to condemn them, say they're not doing their job or anything else.
In fact, to my mind, that smacks of mob rule.
KING: Nancy, how do you respond to that? Why shouldn't ...
GRACE: Well, ...
KING: ... they take their time?
GRACE: Well, they should take their time in reviewing the evidence, and obviously, they are.
I'll tell you, I do place my faith in one guy, and that is this judge, Larry. I haven't always agreed with his rulings, but he has been incredibly fair, down the middle. He's a straight shooter.
This guy has tried cases for the defense. He's been a civil lawyer, as well. No-nonsense judge. I like this guy.
And I think that if he any whiff that there was going to be a hung jury, he would have already dynamited them with the Allen charge. We would know about what was going on.
I think that he has an agreement with them as to their hours and their duties and where they're headed, and that ...
GERAGOS: Except (UNINTELLIGIBLE)...
GRACE: ... he doesn't see any trouble.
GERAGOS: I agree with all of the things you've said about this judge. He's -- I think he's conducted this thing under extreme pressure in a very admirable way.
GRACE: He has.
GERAGOS: The problem is, is he does not -- in California, cannot use what's called an Allen charge. He can -- and he has to tread very carefully on anything he does, if he gets a hint that this jury is hung.
But this guy has, in the face of enormous criticism -- I think he was criticized yesterday in an editorial down in San Diego ...
GRACE: Oh, it's been constant, Mark.
GERAGOS: ... of being the Saddam Hussein ...
GRACE: It's been constant.
GERAGOS: ... of the First Amendment. I mean, ...
GRACE: It's ridiculous.
GERAGOS: ... this guy's taken nothing but grief.
He's had these two idiots here in L.A. ...
GRACE: And I wanted to correct ...
GERAGOS: ... from the radio station down there ...
GRACE: ... also. This guy is ...
GERAGOS: ... who camped out, hassling the jury ...
GRACE: ... not ...
KING: Did two guys do that?
GRACE: ... this guy is not ...
GERAGOS: Two guys ...
GRACE: ... charged with murder one.
GERAGOS: ... camped out. This guy -- this guy has had to deal with two of these idiotic DJs from L.A., ...
GERAGOS: ... standing outside of the courtroom, ...
KING: Make you feel proud your race.
GERAGOS: ... yeah, go ahead -- standing outside of the courtroom calling jurors broccoli.
GERAGOS: I mean, he's had to deal with that. That's the kind of stuff he's had to -- he's been a ringmaster of the ...
GRACE: Oh, he's been attacked, too ...
GERAGOS: ... circus down there.
GRACE: ... Mark.
He has been attacked ...
GERAGOS: Oh, personally he's been attacked ...
GRACE: ... his integrity's been attacked ...
GERAGOS: ... unmercifully.
KING: I've got to break in. You said he's not -- it's not first degree murder?
GRACE: Right. This guy Westerfield -- 50-year-old David Alan Westerfield -- and believe it or not, the guy's got three medical patents under his belt -- is charged with felony murder, kidnapping and possession of child pornography. There is no murder one charge.
KING: We'll be right back with more. Your phone calls will be included. Don't go away.
(BEGIN VIDEO CLIP)
JEFF DUSEK, PROSECUTOR: On the jacket was Danielle van Dam's blood. On his jacket, taken to the dry cleaners that morning, when it's cold out, when he doesn't have his clothing on.
That, in and of itself tells you he's guilty beyond a reasonable doubt.
(END VIDEO CLIP)
(BEGIN VIDEO CLIP)
STEVEN FELDMAN, DEFENSE ATTORNEY: There's too many holes. No smoking gun. There's too many explanations. They can't put it together. That's the problem. It doesn't come together.
(END VIDEO CLIP)
KING: We heard from the prosecutor. We heard from the defense. Steve Fiorina, have -- what are the lawyers saying?
FIORINA: I thought the lawyers both did a very good judge in their final summations. However, the prosecutor brought them back to the heinousness of the crime and the emotion.
They didn't hear from the parents for the last two months of the trial. And he took them back in his final, his closing arguments, he said, let's go back to the very first witness -- the neighbor across the street, who that morning got called back to pick up her child who had been staying with the van Dams that morning while they were at a soccer sign-up or something.
She said, she came across the street and there's Damon sitting on the curb crying, sobbing, somebody stole my baby. And I looked at the jurors and I saw at least four of them, very discreetly, wiping tears, just trying to do it so that it didn't seem noticeable.
But that had to have an impact.
Steve Feldman is an outstanding attorney, and he brought up a lot of -- as -- contradictions, as we talked about, with regard to the bug evidence.
And one thing, too, I'd like to point out. The jurors are told from the outset, this is the most important job you will ever do in your life.
They're also told that these are the attorneys. We have to respect what they're saying, what they're doing. Listen to all the evidence, not part of it, all of it.
They bring in the bug evidence, which is the main portion of that contradictory testimony. And they say, well, it was brought to us. We have to pay attention to it. We have to sort it out.
We have to figure out, is it that important? Does it have anything close to as much importance as that blood on the jacket lapel, as those hair fibers? As the hairs in the sink drain, as the fiber in the necklace?
That's what they're weighing right now.
KING: If it is one person, Jo-Ellan, let's say it's down to -- we're all surmising here, we ain't there -- but it's one person that just won't budge. That's it, right? Hung jury if you can't budge them.
DIMITRIUS: Well, if you can't -- if you can't budge them ...
KING: Judge can't strangle them, right?
DIMITRIUS: You can't strangle them, you can't shoot them. You know, and we also have to take into consideration that, because in the jury selection process, this jury went through questions about the death penalty, and how -- what their attitudes are.
They ultimately know that if they convict Mr. Westerfield, they have to go on to the penalty phase. So this jury is taking this very seriously, which they should.
And if there's one person that, in their mind, you know, cannot go along with everyone else, certainly we've all seen situations where it's ended up as a hung jury.
KING: And juries have surprised you, don't they Geragos?
GERAGOS: They all -- well look ...
KING: (UNINTELLIGIBLE) it's completely.
GERAGOS: You -- we ...
KING: Now what do you think?
GERAGOS: Exactly. And that's usually the case. I can't tell you how many times that you've -- I've given a closing argument, the jury's been out -- I mean recently. The month before last I had a jury that was out for five days. I thought they'd be back immediately with a not guilty.
They ended up being out for 4.5 days, and then sent out a question. They had already found my client not guilty of all the felony counts, and they were hung on a misdemeanor, lesser included, which nobody would have expected.
So, you never know what they're thinking. And for all I know, of any of us know, they may not be hung at all. They may just decide, they took those jury instructions seriously. They're going through the evidence. They've decided, maybe one of the -- the foreperson is methodical and wants to go over every piece of evidence, and because it was a long trial and say, let's weigh it before we come to a decision.
KING: The truth is, Marc Klaas, we don't know, right?
KLAAS: No, of course we don't know. And I hope that Mark Geragos is absolutely correct in his assessment.
I'm just so concerned, you know, they talk about the great lawyering this defense attorney did. Basically he spent weeks assassinating the character of a family who had recently lost their young daughter, and then brought in these bug guys, or this bug guy, to throw a little confusion into it.
And, you know, the first real estate agent I ever had said, if you throw enough poop against the fence, some of it's bound to stick.
And I kind of feel that that's the way he's conducted himself in this trial, by just, you know, lambasting and vilifying these, this poor family. It's terrible stuff.
KING: Sadly, but Nancy, isn't that what a defense attorney is supposed to do? Argue for his client?
GRACE: Well, argue for his client, yes. But I don't think character assassination is part of a defense attorney's job duty.
You know, we keep saying, we don't know what they're thinking, we don't know what they're doing. But ...
KING: That's true.
GRACE: ... you know what, Larry? We can read the signpost (ph). We can look at what they have specifically requested as read-back eight. They wanted to hear Westerfield's statement to the police.
He exercised his constitutional rights, didn't take the stand, didn't want to be cross-examined. But he gave a very unusual and detailed statement to police.
They asked to have that read back, Larry. Then, that wasn't enough. The icing on that sour cake was they wanted the transcript. They wanted to check out word for word. Then they wanted to see the child pornography -- reams of it found on his computer. And then finally, they wanted to hear this etymology testimony.
So mostly, they've asked for state witnesses' read-backs.
GERAGOS: And interestingly enough, Nancy, if you take a look at it, most of that stuff that they've asked for has come out in almost the same order chronologically that it did in the trial -- almost. Which means that maybe ...
GRACE: Yeah, you're right.
GERAGOS: ... they're just going through the evidence, ...
GRACE: I agree with you.
GERAGOS: ... in a very methodical way. And maybe they've got a foreman who is trying to do this in such a fashion that they don't miss anything.
KING: Jo-Ellan, isn't that what a jury is supposed to -- aren't they doing apparently what a jury is supposed to do?
DIMITRIUS: Oh, absolutely.
KING: Especially when a life is at stake.
DIMITRIUS: Absolutely. And I don't think that anyone can be or should be critical of this jury for doing something ... KING: But they are getting criticized ...
DIMITRIUS: ... (UNINTELLIGIBLE) be doing.
KING: ... a lot, right?
DIMITRIUS: Oh, of course they are.
KING: Radio programs in ...
DIMITRIUS: Of course they are.
GERAGOS: Well, and I think it's unconscionable. I mean, the -- they're doing -- these are people who gave up an inordinate amount of time in their lives. They're not getting paid -- I was not being facetious. That $5 a day, or whatever it is, is what they get. A lot of ...
GERAGOS: ... these people don't get -- we just raised the fee ...
GRACE: They got a raise. They got ...
GERAGOS: ... recently in California.
GRACE: ... a raise.
GERAGOS: They got a raise.
GERAGOS: But the still don't ...
GERAGOS: ... I don't know that they still get all their mileage, though. And some of them ...
GRACE: I think they have to pay for their lunch, too.
GERAGOS: Right, exactly. And some of them do not, after 10, 15, 20 days, some of their employers will not pay for the jury duty.
DIMITRIUS: That's right.
GERAGOS: These people have to go through, obviously, a very emotional type trial. They have to listen to all this. They have to concentrate.
It's real work. It's exhausting emotionally. And for people to take pot shots at them from the outside, that somehow they're not taking it seriously, I think is unfair.
I think it denigrates these citizens who left their life, basically put their lives on hold to come and do the right thing and do justice.
If we don't have people who will do this, there's no point in having the kind of system that we have in America. We might as well be in some place where you presume people guilty, and then let them prove their own innocence.
KING: We'll take a break and come back. We'll be including your phone calls, reintroduce the panel to you as well. By the way, tomorrow night on LARRY KING LIVE, her first live appearance with the publication of her new book, appropriately titled "Let's Roll," Lisa Beamer tomorrow night, with your phone calls. We'll be right back.
KING: Back with our panel. Going to go to your phone calls. Jo-Ellan Dimitrius, the jury consultant, the CEO of Vincent (ph) & Dimitrius, one of the world's top jury and trial consulting firms. In New York is Marc Klaas, the founder of KlassKids Foundation, a strong advocate for child protection. In New York is Nancy Grace, the anchor of "Trial Heat" on Court TV and a former prosecutor; Mark Geragos, defense attorney; Steve Fiorina in San Diego is off to do a special report. He'll be back with us shortly, and he covers it for TV in San Diego.
And let's go to St. Joseph, Missouri. Hello.
CALLER: Hello, panel.
CALLER: My question is was Westerfield wearing that jacket when he was dancing with the mother? And also, how close does a mother and daughter's DNA match? Could it be the mother's blood, if she was dancing with him, and the jacket?
GERAGOS: Yes, the DNA, there are various kinds. The mitochondrial, what they call, does come from the maternal side so that it could be a match. There is ways to further distinguish that. And, frankly, I can't tell you, maybe Nancy can and watches whether they introduced evidence of that.
GRACE: Yes, I can. Yes, I can.
GERAGOS: And as far as the jacket, it's my understanding from the testimony that he was wearing that.
GRACE: First of all, there was both types of DNA, mitochondrial DNA, which comes from the mother. It's less reliable and less specific. The blood found in his floor and on his jacket, however, was not a mitochondrial match. It was an absolute match to 7-year-old Danielle van Dam.
And the viewer is right. He was wearing a leather jacket, which makes it virtually impossible to transfer fiber or hair, which is the defense theory. To top it all off to the viewer, he said in his statement to police he went home and had a shower. Now, that must be some mighty tough DNA to stick to a leather jacket and live through a shower and show up in his RV the next day.
KING: Le Grand, Iowa, hello.
CALLER: Hi, Larry. Hi, panel. My question is for Nancy. And I was just wondering, you know, when the police went to question Mr. Westerfield the day that he came back from the desert, that morning they said that he was sweating really, really bad and underneath his armpits. And then, during the trial, he seemed so calm and the only emotion that he ever showed was just that teardrop when Neil (ph) was testifying. I was just wondering what is your opinion on that?
GRACE: Well, you know, I offered to FedEx Mr. Westerfield some sweatpants because he obviously had this severe problem when the police had just walked up to him to ask him some questions in his front yard to ask him a few questions, he sweat buckets and everybody noticed it.
Not so in the courtroom. But I do want to point out, he showed absolutely no emotion. This is what he looked like the entire time. The viewer is dead on. He shed one tear when his own son, Neil Westerfield, took the stand and said, uh-uh, it's not my child pornography, as the defense would have you believe, it's my dad's.
KING: Should any of that count, Jo-Ellan, how he looks?
DIMITRIUS: Oh, absolutely...
KING: It does count.
DIMITRIUS: That's a very important consideration, not only how he looks, but how each one of these experts came across on the stand.
KING: So everything counts?
DIMITRIUS: Absolutely, everything counts.
KING: San Diego, hello.
CALLER: Hi, Larry.
KING: Yes, go ahead.
CALLER: This question is for Nancy Grace or Steve Fiorina.
KING: Steve is gone now, but he'll be back. So, it's for Nancy. Go ahead.
CALLER: Did the defense ever give an explanation of the blue fibers on her naked body and his headboard? I mean, that couldn't be from transfer from dancing.
GRACE: No, ma'am, they never did give an explanation. But this is what they did. They suggested to this jury that the RV had been left at some point unknown unlocked in the neighborhood and that maybe, although there were no witnesses to support it, not even one, that maybe she went in and played in the RV and somehow transferred fibers. I consider the fibers caught in her little necklace and also found in his home to be some of the strongest evidence. You're right. There was no explanation.
KING: This does appear like an awfully tough case for the defense, does it not, Mark?
GERAGOS: I don't think there's anybody who would suggest otherwise. I think that closing argument by the defense, I said it before, I thought that Feldman's argument to the jury was engineered towards trying to get a hung jury. I mean, that was a good portion of the argument.
KING: Explain to the audience what happens when a jury is hung.
GERAGOS: When a jury is hung, the first indication you'll have is that they will send out a note to the judge that says we've deliberated, we've taken a number of votes and we cannot reach a verdict. What do we do now; or, judge we need some instruction, somebody is not deliberating. Sometimes that's what you'll see; or, judge, we're hopelessly deadlocked, please give us some guidance. Then the judge has to call in the lawyers at that point and make a decision, do I give them further instructions or call the jurors out, put them in the jury box and question them, do you think further deliberation would be helpful at this point? Is there anything that I can get you that would help you to resolve this question?
KING: That has to be done in public?
GERAGOS: That has to be done in open court. Any -- penal code section 1138 says in California, any communication between the judge and the jury must be done after consultation with the lawyers and in open court.
KING: Mountain View, Wyoming, hello.
CALLER: Hello. This is for whoever might be able to give me an answer. If that jury comes back hung, will California reprosecute?
GERAGOS: Absolutely. There's no question. I don't care if it was 11-1 for acquittal, they will reprosecute. There is not a chance anywhere that the mother of the prosecutor has been born that is not going to recharge this case (UNINTELLIGIBLE).
KING: By the way, just as off the top, can you have five hung juries or...
GERAGOS: Yes. I mean, there is cases -- I've tried cases in Los Angeles three times. There are reports of and I know lawyers that have tried cases four times in murder cases here in Los Angeles County. San Diego, as Steve will tell you, when he gets back on...
KING: He's back now.
GERAGOS: ... has had four trials within the last couple of years that were all hung and that all came back later to be retried.
DIMITRIUS: I've actually worked on a case here in Los Angeles that there were four trials previous, four hung juries previous to the time that I got involved in it. And I think one of the other things we need to consider is just the politics of it too. We have a D.A. in San Diego who is running for re-election. So, I think it would be very, very...
GERAGOS: I'll take that bet.
KING: Steve, does this tell us that San Diego is a rather independent thinking county?
FIORINA: As we mentioned, we have had four cases over the past several years where there have been hung juries, I mean, major cases, and they've come back. And what the D.A. does in this case, and so does the defense attorney, is goes back to each of these jurors and say where were you convinced, where were you not convinced? Where were the hang-ups?
And in the case that Paul Pfingst, our district attorney, won his -- basically his election a few years later was one where there was a California Highway Patrol officer who was later convicted by Pfingst of strangling a co-ed and then throwing her body off a bridge. He went, the first district attorney did not win it. It hung up. And they went back and interviewed these jurors and Pfingst went over all the notes, reorganized the case, decided what stayed, what went and then he added the emotion of it. And he really -- you could see in his gestures, in his voice, you could hear it in his voice, he was wrapped up in that case. And that was communicated to the jury and they won that one very quickly. So, yes, they go back and they think about it.
KING: We'll take a break. Hold that one, Steve. We'll be back with more phone calls on LARRY KING LIVE. By the way, Matthew Perry will join us on Thursday night. That should be very interesting. Matthew Perry Thursday night. We'll be right back.
(BEGIN VIDEO CLIP)
JEFF DUSEK, PROSECUTOR: We don't want to hear how he took her out of her own bed and took her to his, and then to his bed in the RV. But he did. We don't want to hear about that. She struggled, as we can see. She fought, as we can see. She bled, she left her fingerprints, she left her hair.
(END VIDEO CLIP)
(BEGIN VIDEO CLIP)
STEVEN FELDMAN, DEFENSE ATTORNEY: Does he gag her? There's no gags. Does he tie her up? There's no rope. Does he kill her? There's no evidence of that. How does she get out of there? You have to guess. They have to guess.
(END VIDEO CLIP)
KING: We're back. Durham, North Carolina, hello?
CALLER: Hi, Larry. My question to the panel is that since David Westerfield was such a fan of bleach, was it ever speculated during the trial what the effect of pouring bleach over the body of Danielle van Dam would have been then premature mummification or keeping the bugs at bay?
KING: Marc, do you know anything about that, Marc Klaas?
KLAAS: You know, I don't know anything about that. But what I do know, Larry, is that when you leave these little kids out and you leave them exposed, you're hoping that the critters will get at them so that they can be dissipated and basically disappear. That's why there is not a lot of little bodies buried in this country. You can't determine the cause of death after a body has been exposed for 20 or 30 days. It was the same with Polly. They found a little garret (ph), but that was the only way they could determine how she was murdered. They decompose -- it's a terrible situation. You also can't determine a sexual crime against them, again, for the same reason, too much decomposition.
KING: San Diego, hello.
CALLER: Hi, Larry, how are you?
CALLER: My question is for Nancy Grace. In the preliminary hearing, a picture, a blown-up picture was used, I believe, of Mr. Westerfield's right arm showing (UNINTELLIGIBLE)...
GRACE: We were just talking about that.
KING: Let her finish the question. What's the question?
CALLER: Well, I'm just wondering why the prosecution didn't bring that picture up this time, even though it was used in prelim?
GRACE: As I recall, that photo was brought into evidence early on, and we were just talking about that. It's so funny that you bring it up. What that was, Larry, is that on Westerfield's arm, there were five little fingernail marks, little half moon marks on his hand, dug into his hand. And that did come into evidence, as I recall.
KING: It did come into evidence?
GRACE: Mm-hmm. But then when they looked at her hands, they bagged her hands at the scene and they did not find his DNA under her hands. But so much of her had been destroyed in the desert.
KING: Boston, hello.
CALLER: Hi, Larry.
CALLER: My question is for Nancy Grace. First of all, I want to say every thought that goes through my head comes out of your mouth. You must be an Aries. My question is this: David Westerfield also has a daughter. Why do we never hear about her and why did she not have a room at her father's house and go on all these so-called desert trips, as did Neil...
GRACE: Very interesting. Very interesting.
KING: Do we know?
GRACE: Well, I hadn't thought about that. No, we don't really know. But I do know she never appeared during the trial. He had a former brother-in-law that appeared during the trial, quite often, to support him. Other than that, no one, including the daughter, the viewer is mentioning.
KING: Steve Fiorina in San Diego, do you know anything about the daughter?
FIORINA: She is older. They are -- he is twice divorced and she lives with her mother. She used to spend some time with him. But his mother only -- Westerfield's mother only came to the courthouse during the preliminary hearing. We never saw her during the trial either. The family, I think, wanted to distance themselves from this and add speculation.
KING: Port Richie, Florida, hello.
CALLER: Yes, hi, good evening, Larry. My question is for Nancy. Nancy, first of all, I think you are great. Nancy, why in the police tape, when the police were questioning him, did he always say the word we?
GRACE: Oh, I heard that. That's the strangest thing, Larry. He was describing this odyssey, he went all by himself about 400 to 600 miles through the desert the weekend Danielle disappeared. The only member of the neighborhood that took off and left and did not help to find Danielle.
OK, while he was out there, he claimed he was alone the entire time, and the viewer is correct. He slipped up in his police statement and said, in fact, while we were driving around, I mean, while I was driving around, whoops. And that statement came into the jury.
KING: Of course, some people do say the collective we at times.
DIMITRIUS: Well, I've done a lot of study of behavior of people that aren't telling the truth. And what usually happens is there is a change in the syntax, which obviously happened here. It was interesting because it was right in the middle of the interview. I took a look at it the other day, and in two sentences he says we and then goes back and corrects himself.
KING: If this is a very tough call, and let's say it's 11 -- 10- 2 and they convince the other two to go with it and they go reluctantly because of the days, does that lessen the chance for a death penalty?
DIMITRIUS: Absolutely, because traditionally, what we've seen in these types of cases is if there are holdouts for a period of time and for whatever reason they go along with the majority, when they do get down to the penalty phase, in which they make the decision about either death or life without the possibility of parole, there is no way that they're going to be rolled over on that one.
KING: We'll be back with our remaining moments. Don't go away.
KING: We're back with our panel. Middletown, New York, hello.
CALLER: Yes, hello, Larry. My question is, if David Westerfield is acquitted of this murder and he were to go out and repeat this crime as many predators do, would the jury in any way be able to be held responsible?
DIMITRIUS: No, they won't. But that's an interesting question because let's look at the Avila case. We have...
KING: The mother on this program blamed the jury.
DIMITRIUS: Right. Right. She blamed the jury. I'm sure we'll never see any of those jurors, but those jurors did what they thought they needed to do, and for whatever reason they didn't find reasonable doubt, and we can't convict them for that.
KING: Here's one of the problems we have in media. It's for all of you. A juror is watching this show, which they are allowed to do, correct, or they're not allowed?
GERAGOS: Well, the judge has instructed them not -- to avoid anything.
KING: Let's say they walk through the room and they just hear that call.
GERAGOS: Right. Exactly.
KING: And this is a person on the fence. That's prejudicial, isn't it?
GERAGOS: It's certainly going to be. If you are the defense, you're certainly going to be screaming bloody murder if you ever find out about it. I mean, that's the thing. How do you ever find out about that except anecdotally?
KING: Philadelphia, hello. CALLER: Hi, Larry. I don't think David Westerfield is guilty. I really don't. I wanted to ask Mark, he's a wonderful lawyer, Mark, if this jury hangs, do you think the next jury will be sequestered?
GERAGOS: You know, I think this judge has been surprised, and he said he's been surprised at what has happened here with this jury trial. There were comments today that he had made that he was almost distressed about it. I think what you would see is if this case is retried, I don't think he's going to let cameras into the courtroom. And I think if he doesn't let cameras into the courtroom, then he will not have the need for the sequestering of the juries because you're not going to have the same kind of circus atmosphere.
KING: Nancy, you would argue that, would you not, against his -- if he threw the cameras out, and that would be another judge?
GRACE: Yes, I would argue that because I fully believe in an open courtroom. And in this day and age, that means a camera in the courtroom.
KING: Don't you agree, Marc Klaas?
KLAAS: You know, I do to a degree, Larry. But I think if this jury doesn't come back conclusively, we have to remember that everybody, including Mr. and Mrs. van Dam, are going to have to go through this whole thing again.
KING: Yes. Do you favor court trials televised, Jo-Ellan?
DIMITRIUS: I do. I think that the public has a right to know. And I think that if this case is a hung jury, everybody is going to be talking about it anyway, and...
KING: Steve Fiorina, is your station one of those criticized by the judge?
FIORINA: No. We have -- he has criticized the media in general. And specifically, he'll say many of you who are here every day are not the ones who are a problem. He's says we're getting, as Marc Klaas mentioned earlier, the people from Los Angeles who not only were down here passing out the broccoli, they were also up offering pizza at the van Dams house and Westerfield's house during the search time. A little girl, 7-years-old, is missing and they are down here...
GERAGOS: It really is...
GERAGOS: I was going to say, it is one of the few times that you might want to see some restrictions on the First Amendment.
KING: Ellijay, Georgia, hello.
CALLER: Larry, very informative show. I'd like to ask don't the defense attorneys usually make much more money than the prosecution attorneys and doesn't that sometimes impact the case since the defense attorneys make more money?
GERAGOS: Look, I won't hide the fact that I make a lot more money than any prosecutor around. But I will tell you that 99 percent of the defense attorneys across this country do not. I mean, the great majority of defense lawyers are eking out a living are not, the great majority of them are public defenders, who are in the trenches every day. So, there is -- there are inequities. I don't dispute that for a second.
If you have the ability to afford a better defense, you can have the ability to hire experts. You have the ability to do better investigations and you tend to even out the -- what I consider to be the prosecutor's advantage.
KING: Based on you know now, Jo-Ellan, do you expect a verdict or is that too...
DIMITRIUS: I say let's go on and see what happens this week. But I think that definitely there is a 10-2 split.
KING: That's what you feel, a 10-2 split?
DIMITRIUS: Yes, I do.
KING: Nancy, do you expect a verdict soon?
GRACE: You know what, Larry? I really believe this child, through her fiber, her hair, her blood, her fingerprints is going to reach this jury. I don't see any possibility but a guilty verdict.
KING: Marc Klass, do you expect a verdict soon? We only got 30 seconds.
KLAAS: Yes, I hope so, Larry. Ultimately, this guy is going to do down one way or the other.
KING: And Mr. Geragos?
GERAGOS: You know, I think that there's going to be -- we're going to hear something tomorrow afternoon. How is that? I'm going to make a prediction. You're going to hear something tomorrow afternoon. Exactly, I'm going to give Nancy a chance to come back and slam me later on. I'm predicting they come back with a note that they're hung over the verdict tomorrow afternoon.
GRACE: I will.
KING: Thank you all very much. We'll come back and tell you about tomorrow night, maybe. Don't go away.
KING: In her first live appearance for her new book, "Let's Roll," Lisa Beamer will join us right here at this table tomorrow night. And Thursday night, it's going to be a great pleasure to have him here, because he is one of my -- well, I'm out of time. Matthew Perry will be here and I know Aaron Brown joins me in liking him, as we both like Aaron.
Mr. Brown is about to host "NEWSNIGHT" in New York. Go.
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