Westerfield Lawyers Gearing For Sentence Fight

SAN DIEGO -- Attorneys in the David Westerfield case prepared Thursday for a fight over what character evidence can be presented to a jury that must recommend whether he is put to death or spends the rest of his life in prison.

WESTERFIELD TRIAL Judge William Mudd Issues Death Penalty Sentence Hear Jury's Death Penalty Recommendation Watch The Jury's Verdict Being Read Share Your Thoughts DANIELLE VAN DAM 1994-2002 Watch Danielle Video Montage E-mail: daniellevandam @yahoo.com Send mail to: P.O. Box 501515 San Diego, 92150

Westerfield, 50, was convicted of kidnapping and killing 7-year-old Danielle van Dam more than six months ago.

Friday, defense attorney Steven Feldman will ask Judge William Mudd to preview what evidence prosecutors plan to present involving violence or use of force, once the penalty phase gets under way Wednesday.

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Prosecution, Defense Will Try To Sway Jury Ex Brother-In-Law Talks About Westerfield

Before they were chosen, the jurors in the Westerfield case said they could impose the death penalty under the right circumstances. But whether they can actually vote for death is another matter, according to experts.

"It's much more complicated than if you had someone with a long past history of criminal behavior, particularly violent crime," Thomas Jefferson School of Law professor David Steinberg told 10News. "That's what the defense is going to argue. This is not a serial killer. This is a guy who, for whatever reason, just lost it one night."

Feldman told the judge he may call as many as 10 out-of-state witnesses in the penalty phase.

Vincent Garcia, a supervising attorney for the Alternate Public Defender's Office, said jurors will hear testimony about Westerfield's childhood, which may explain why he committed the crimes.

"We want to know as much as we can about the person whose life hangs in the balance," said Garcia, who is not involved in the Westerfield case. "When we consider the ultimate penalty, we as a system prefer to know more about a defendant than not."

Another observer, defense attorney David Bartick, said jurors will go through a "weighing process" as they consider the factors justifying the death penalty and the factors justifying life behind bars.

The prosecution's case will include testimony from parents, friends and classmates who knew Danielle, experts said.

"The prosecution is really going to play up who Danielle van Dam was," said alternate Public Defender Jesse Gilbert. "They're clearly going to rely on the jury's emotions, given who the victim was. Frankly, that's why (prosecutors) are going for the death penalty."

Factors to be considered in the penalty phase include the defendant's level of intoxication -- Westerfield was said to have been drunk the night before Danielle was discovered missing on Feb. 2 -- possible mental disorders and lack of criminal record, experts said.

"If the jury has any lingering doubts, this is where it's going to play out," said former prosecutor Mike Still.

Westerfield, who lived two doors from the van Dam family in Sabre Springs, was convicted of murder, kidnapping, possession of child pornography and a special circumstance allegation that the murder happened during a kidnapping.

Prosecutors couldn't prove that Danielle was sexually assaulted because her body was in state of advanced decomposition when it was found Feb. 27.

In presenting evidence on the pornography found in Westerfield's home office, prosecutors said it showed what his motive had been for kidnapping the child.

Some experts predict that Westerfield's attorneys will appeal the convictions because Mudd refused to sequester the jury during deliberations to try to shield them from intense publicity.

A gag order on all participants in the trial remains in place.

If Westerfield is sentenced to death, a motion for a new trial would immediately be filed. If that were denied, the case would be appealed to the state Supreme Court.