Still Photographers Remain Banned From Westerfield Trial

SAN DIEGO -- A photograph showing the reaction of Danielle van Dam's parents as David Westerfield was convicted of killing their daughter prompted a judge Tuesday to ban all still cameras during the trial's penalty phase.

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

San Diego-Union Tribune photographer Dan Trevan took the photo of Damon van Dam consoling his wife Brenda as a jury found Westerfield guilty of kidnapping and murdering their 7-year-old daughter.

Superior Court Judge William Mudd said Trevan -- designated as the pool still photographer for the trial -- violated an order "that is black and white."

Under California's Rule 980, photographs of the jury and spectators are not permitted.

"This was a direct and clear violation," the judge said.

Edward P. Davis, an attorney for Trevan, argued the photographer was within his rights to shoot the picture of the van Dams because they were trial participants.

"They were witnesses," Davis told the judge. "They've been involved in the media from the very beginning."

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But Mudd (pictured, right) said Trevan was on notice that no photos were to be taken of people in the gallery.

"He knew the rule," the judge said. "He knew and understood 980. The sanction is to get rid of him. And that's exactly what I'm going to do."

Davis unsuccessfully argued that Trevan was acting in good faith when he shot the photo that ran in an extra edition of the Union-Tribune the afternoon of the verdicts and in newspapers around the world the next morning.

"I think the court has unfairly vilified Mr. Trevan," Davis said. "He sincerely wanted to comply with the court's order."

Mudd banned all still photography from the trial and from the third floor of the county courthouse. Photographers who violate the order will be detained and their cameras confiscated, the judge said.

Westerfield, 50, was convicted last week of murder, kidnapping, possession of child pornography and a special circumstance allegation that the killing happened during a kidnapping.

In Wednesday's penalty phase, the same jury that found the defendant guilty will be asked to recommend a sentence of death by lethal injection or life in prison without parole.

Final sentencing will be left up to the judge.

Prosecution witnesses are expected to testify about past criminal acts committed by the defendant.

A videotape of Danielle's life will also be shown to the jury.

Defense attorneys will try to show that Westerfield lived a mostly crime-free life until he was convicted of murder.

Mudd took under submission a defense motion that California's death penalty represents cruel and unusual punishment and violates the Eighth Amendment to the Constitution.

Some experts have said that Westerfield doesn't fit the mold of California's 616 death row inmates.

Westerfield was a successful white businessman who had some education, while most death-row inmates are people of color, uneducated, and poor.

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.

Eleven people have been executed since 1978, when the death penalty was re-instated in California, according to the Department of Corrections.

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.

Lead prosecutor Jeff Dusek told the judge that his portion of the penalty phase will last only a day, possibly a little longer.