Westerfield Defense Fighting To Keep Witnesses Out

SAN DIEGO -- The judge in the David Westerfield trial will hear more arguments today on a defense request to bar prosecutors from calling penalty-phase witnesses to testify about the convicted killer's past criminal acts.

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

The penalty phase -- to determine if the defendant is sentenced to death or life in prison with no chance for parole -- starts Wednesday.

The prosecution can legally call witnesses to testify about past bad acts to convince a jury that Westerfield, 50, should die by lethal injection for kidnapping and killing 7-year-old Danielle van Dam.

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Hearing Began Friday

Judge William Mudd said he will announce after the closed-door hearing his rulings on which witnesses -- if any -- can testify.

The same jury that found Westerfield guilty will make a recommendation on punishment, but Mudd will make the final decision.

Lead prosecutor Jeff Dusek told the judge last week that he would seek to introduce police reports on Westerfield if witnesses were not allowed to testify.

Danielle's parents are expected to testify about how the loss of their daughter has devastated their family. The judge last week denied a defense motion challenging the constitutionality of the death penalty.

Mudd also kicked out the pool still photographer in the trial, Dan Trevan, for taking a shot of the victim's grieving parents as the verdicts were read.

The photo of Brenda and Damon van Dam was published in newspapers across the country the next day, including an "Extra" edition of the San Diego Union-Tribune the afternoon of the verdicts.

A hearing on that is set for tomorrow.

Westerfield 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 analysts contend that Westerfield will likely die of old age in prison in any event, given he is already 50 and California has a large backlog of scheduled executions, which are carried out at the rate of about one a year.

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.

Westerfield has only a drunken driving conviction on his record.