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CAROL LIN, CNN ANCHOR: We have some breaking news for you. We have a verdict in the David Westerfield case. He is the man charged with killing Danielle van Dam, a San Diego girl. We are expected to hear the actual verdict at 2:00 p.m. Eastern this time, but I am sure we will have much more analysis and take you to the scene live.
In fact, we're going to have a story here from Thelma Gutierrez, who will give you some background on the case to prepare you for the coverage that we are going to be offering this afternoon. Here is Thelma Gutierrez.
THELMA GUTIERREZ, CNN CORRESPONDENT: It is a trial that took 27 days to go to the jury.
UNIDENTIFIED MALE: Each of you must consider the evidence for the purpose of reaching a verdict if you can do so.
GUTIERREZ: An exhausting legal journey for six men and six women who have the fate of 50-year-old David Westerfield in their hands. During deliberations, jurors will have had 199 different exhibits or evidence to consider, the testimony of nearly 100 witnesses, and the passionate arguments by attorneys on both sides.
UNIDENTIFIED MALE: Because this case is only circumstantial evidence.
UNIDENTIFIED MALE: This is a smoking gun.
GUTIERREZ: During the trial, jurors showed emotion. Some turned away at first glance of the autopsy photographs. Two women teared up when one of Westerfield's pornographic videos was played, depicting a storyline of what appears to be a young girl being raped by two men.
UNIDENTIFIED MALE: Have there been occasions when you have accessed pornography at his house?
UNIDENTIFIED MALE: Yes.
GUTIERREZ: And when Westerfield's 18-year-old son took the stand to testify about pornography found in his father's home...
UNIDENTIFIED MALE: I found some on his computer...
GUTIERREZ: And appeared nervous, they smiled and laughed with him. So who are the jurors? They come from different ethnic and socioeconomic backgrounds. On jury questionnaires, a couple stated pornography is immoral. All 12 said they would be capable of imposing the death penalty.
UNIDENTIFIED MALE: If there is anything I have said that has caused any of you, I will say, heartburn, please, don't hold it against Mr. Westerfield.
GUTIERREZ: Defense attorney Steven Feldman has argued loudly and dramatically that Westerfield is innocent. He says someone else kidnapped and killed Danielle van Dam, and that her parents so-called swinging lifestyle may have created that opportunity.
UNIDENTIFIED MALE: If you engage in risque sexual and drug behaviors, what happens to your children when you don't check on them?
GUTIERREZ: But prosecutor Jeff Dusek said the case boils down to solid physical evidence allegedly found in Westerfield's home and motor home, and told jurors that even from the grave, Danielle had offered them testimony.
UNIDENTIFIED MALE: I told you with my fingerprints, and I told you with my blood. Please listen.
GUTIERREZ: Throughout the trial, David Westerfield sat quietly, showing little emotion. Now, his very life sits precariously in the hands of 12 jurors, people who will be forced to choose between life in prison or death, should they convict him of kidnapping and killing Danielle van Dam.
Thelma Gutierrez, CNN, San Diego.
LIN: And now CNN's James Hattori is standing by live outside the courtroom in San Diego. James, it has finally happened on what, this is now day 11?
JAMES HATTORI, CNN CORRESPONDENT: This would be day ten. They have only had nine days of deliberations, because -- in fact, not even nine full days. By most accounts, it has been a couple of half days here and there, maybe some 40 hours total, so plenty of time, by -- a lot of court watchers were saying that was about average, five, six days would not be uncommon. Eight, nine days getting to the point where they have gone over most of the material they were able to get to.
Charles Feldman, my colleague, is also here. He was up in the courtroom area when the announcement was made. Was there a lot of excitement?
CHARLES FELDMAN, CNN CORRESPONDENT: Yes. There was the normal sort of excitement that you get in a court in a case like this. Because, as you pointed out, it has been a number of days now, and when you have a case like this, people understandably say, what is with it? When is the jury going to reach a verdict, and so, as soon as the word goes out, it is amazing how fast it travels. I had gotten a page, actually, from somebody who told me they would page me with information, and within about a minute or a minute and a half, the buzz was all over the court. As you can hear, as I came down the elevator and went out the lobby here, even the guards downstairs, because they have got radio communication upstairs, they had already heard that there was going to be a verdict announcement in about an hour.
HATTORI: Now, the process as we understand it is, obviously, the lawyers are not here at the courthouse right now. They have to be called, or already have been called, or presumably are being called at this moment. They are allowed, what, half an hour, 45 minutes to come to the courthouse, and court will actually get underway and the verdict will be read at that point.
FELDMAN: Yes, and then usually, as I am sure you know, in cases such as this where you have a murder case, and it is controversial, it would not be unusual to poll the jury, so my suspicion is that once the jury foreperson announces the verdict, there will probably be a poll of the jury just to make sure that everybody is in agreement, because of course, it has to be a unanimous verdict. And the one thing we know by the fact that there was an announcement is that it was unanimous. Whatever the decision is, whether it is guilty or not guilty, everybody obviously agreed to it.
HATTORI: And at this point, the announcement precludes the possibility of a hung jury. This is a verdict, either acquittal or conviction.
FELDMAN: That is correct. Our understanding is that they have reached a verdict, and a hung jury would not, by definition, be a verdict. That is correct.
HATTORI: So, Carol, that is where it stands. Obviously, a mad scramble for the attorneys, probably the van Dam family will be showing up in court. Certainly, that courtroom will be packed with spectators, including the media, and we will have that verdict live for you as it is read, probably within half an hour, or 45 minutes...
FELDMAN: ... about 45 minutes, yes.
HATTORI: ... we'll let you know -- we will let you know at that point.
LIN: All right. In the meantime, James, take us through -- and perhaps Charles can add to this -- take us through some of the read backs that the jurors had asked for in the last few days, you know, interesting in terms of what David Westerfield alibi was at the time.
Can we glean any clues from that as to what conclusion the jurors may have come to?
HATTORI: Well, all of this is obviously speculation, but we do know that they did ask for testimony from an entomologist. There was a big debate over the time of Danielle van Dam's death. She was left out on a rural road, where her body was in a state of advanced decomposition, and the debate was over, can you tell, based on the decomposition, when she actually died.
Westerfield's attorney says that based on their expert that they introduced, that they called in court the time of death was somewhere around mid-February.
FELDMAN: But it is always -- as you know, James, it is always careless to try to predict what a jury -- or try to guess what it is a jury was thinking until the time comes, if it comes, when the jurors decide to talk. Now if it is a guilty verdict in the case, if it is a guilty verdict, they then go on to a penalty phase, which means -- excuse me -- that the jurors would still be under a gag order, so if it is a guilty verdict, we will not know today what information the jurors used to arrive at their conclusion, whether or not any of this material that they had read back to them was instrumental in them reaching the verdict they did. If it is a not guilty verdict, though, my understanding is the gag order would then be lifted, and then we will have a idea what it was that they were actually discussing.
HATTORI: If they chose to share it with the media.
HATTORI: And there has been a certain amount of anxiety between the jury and the media and the judge, and the judge has been very vocal about that. But just to finish the question you were getting at, other materials they have asked for is the interview with police as they interrogated Mr. Westerfield initially. At one point during that interview, he was talking about this trip he had taken in the desert. He was saying I, I, I, was by myself...
FELDMAN: And then he said "we."
HATTORI: And then he slipped up. Apparently, it has been characterized by the prosecution, he slipped up and said "we." And that was a glaring mistake on the part of Mr. Westerfield, according to the prosecution.
Some other material they have asked for is the alleged pornography, child pornography, that was on his computer. They looked at that, although there is some debate as to whether or not they were actually children, or the age of the people in the pictures...
FELDMAN: That is right. Because some of the images, it is impossible to tell, really, and it is a matter for the jury to decide whether or not these were young women who were or weren't of age and therefore consensual.
HATTORI: Of course, that was a misdemeanor charge that he faces on that, but it does speak to, I think, and the prosecution's strategy, it speaks to an intent or frame of mind that he might have been in. I mean, their whole story -- their whole theory is that he had this sexual obsession for young people, and...
FELDMAN: Even though, and we should point out, that he does not have any history of child abuse. He was never convicted of anything to our knowledge, he was never accused of any crime. And that -- as I recall when this first began to unfold, this story, that was one of the things that was very unusual about it, when Mr. Westerfield was named a suspect, was that he didn't seem to fit the usual pattern for these sorts of crimes. He didn't have a history of child abuse, he certainly didn't have any history of violence. He had a fairly middle class existence. He had a good job, he lived in a nice neighborhood in Southern California. He just didn't fit the mold.
HATTORI: I think the prosecution pointed to certain personal problems that he had had recently in terms of employment and relationships, that they sort of implied may have set him off to commit this crime in their theory of how things went.
FELDMAN: Now the question is, does the jury buy all of that, or does the jury sit collectively in its wisdom, and say we don't, and we think that this person is not guilty, and of course he enters this case -- and even now, enjoys the presumption of innocence until that jury announces its verdict, in, now, about 45 minutes.
HATTORI: And the defense attorneys hold -- much of their argument was that there is a reasonable doubt. For example, there is no evidence that was presented establishing his presence inside the van Dam home. So, if he allegedly kidnapped her, why isn't there some sort of evidence that he was in the home, or entered the home, or left the home or anything like that? That is one of their points.
FELDMAN: Right. And as you know, that was an unusual case for another reason because the lifestyle of the victim's parents, very unusual, was also, in effect, put on trial, wasn't it? I mean, these were parents that openly had sexual relations with people outside of their marriage.
HATTORI: So-called "swingers."
FELDMAN: So-called "swingers." There is the issue about whether or not their lifestyle, in effect, invited people into their home.
The defense would argue that people other than Mr. Westerfield, who might have perpetrated this horrible crime against their daughter, so it was an unusual case in the sense that there were two trials going on here, wasn't there? There was the trial of Mr. Westerfield, but there was also, because of the defense, a public trial, if you will, of the lifestyle of Danielle van Dam's parents.
HATTORI: And it will be really interesting to see how that played out in the jury, to the defense's benefit or to their detriment because I can -- you can easily imagine some people say, Well, this has got nothing to do with the crime, and in fact, no one was charged with any crime in relation to that scenario. I mean Mr. Westerfield is the only one on trial here.
FELDMAN: That's right.
HATTORI: So, it will be interesting to see what jury has to say after all of this is over -- Carol. LIN: James, Charles -- what do you know more about this six man, six woman jury?
HATTORI: Well, we do know they are from various social and economic backgrounds, various ages, I think one of them is as old as 83.
FELDMAN: And some of them have children about the same age as Danielle van Dam was, which is 7, at the time of her murder. So, some of the jurors would certainly empathize with the plight of the van Dams, and with the horror of having -- I mean, you know, for the audience to understand all of this, they have to understand that any murder, of course, is horrible, but in this case, here was a young girl snatched out of the safety -- or the perceived safety, really, isn't it -- of her own home, and that strikes a chord with people, and certainly with parents, and certainly, I would think, the jurors who have children of that age...
FELDMAN: ... the notion that you could say good night to your young daughter or young son and come back the next morning and find that they are no longer in their bed, and worse yet that they have been murdered. I mean, that is -- that penetration of this sort of otherwise web of safety that people presume they have in their own home is horrible.
HATTORI: Another point that was gone over during the jury interviews before the trial or in the initial stages of the trial was whether or not -- what their feelings were about the death penalty, because obviously, this is a possible death penalty case for Mr. Westerfield, even though the judge instructs jury during deliberations not to take penalty into account. That is the next stage, if it comes to that. But, they were asked about whether they believe they could -- whether they believe in the death penalty, whether they believe they could impose the death penalty if it came to that, and obviously both the prosecutors and the defense were comfortable with their answers.
FELDMAN: And let me mention something about that phase of this. In the event -- and again, if the verdict is a guilty verdict, as we've talked about before, it then goes to the penalty phase, and according to the district attorney's office, the jury, once again, has to be unanimous in this. They have two choices. They can either opt for the death penalty or they can opt for prison without parole, a lifetime sentence without parole, and that is a recommendation. It goes to the judge. If the recommendation of the jury is for the death penalty, the judge can -- the judge has the option of bumping that down. The Judge can say, no, I think that this doesn't warrant the death penalty. On the other hand, if the jurors recommend a life without parole, the judge in that case does not have the option of upgrading it. See, the judge cannot impose the death penalty. Only in California -- only the jurors are empowered to do that, and interestingly, James, is that in the event the jury is deadlocked, say, on the penalty phase, what happens is they actually have to throw out this jury, the jury that heard the trial, panel a new jury, and that jury would then reach the determination of whether or not Mr. Westerfield, if convicted, would face the death penalty or life without parole. That would be a very difficult thing, I would think, for jurors who didn't cover the trial, or who didn't take part in the trial to do.
HATTORI: And a lengthy process. One other thing we should point out, Charles, is that in order for the death penalty to come into play, Mr. Westerfield has to be found guilty of committing the murder under an aggravated circumstance. In this case, kidnapping. In other words, he has -- the jurors have to be convinced beyond a reasonable doubt that he committed the murder while the kidnapping was in play. That is the capital charge.
FELDMAN: Let's explain to our viewers, in California, because every state is different, as you know, in California, it is called "special circumstances," and if you are charged with murder with special circumstances, and in this case, the special circumstances are kidnapping and some of the other alleged felonies that go along with that, if you are convicted of all of those, then, and only then, in California, is there the option of the death penalty, and the district attorney's office in this case decided a while ago that he would opt for that.
LIN: James, just to clarify, when you were talking about the special circumstance for the death penalty, so it would qualify if David Westerfield committed murder in the process of kidnapping Danielle van Dam?
It would have to be in the process of actually kidnapping her?
HATTORI: That is correct. The two crimes have to be linked somehow. In other words, if the jury...
LIN: Got you.
HATTORI: ... doesn't believe there is enough evidence that he kidnapped her, then they can't call for the...
LIN: OK, James, we are going to leave it at that at the moment.
HATTORI: OK, Carol. Thank you very much.
LIN: Thank you very much.
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