Westerfield Juror Hospitalized

SAN DIEGO -- The jury considering the punishment for convicted child-killer David Westerfield was sent home without deliberating Tuesday because a juror was hospitalized for undisclosed reasons.

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Superior Court Judge William Mudd announced that the woman, referred to as juror number eight, was taken to a hospital by her husband this morning.

Few details were released, but Mudd told attorneys for both sides that X- rays were being taken of the woman, who had exhibited symptoms of a problem that had kept her incapacitated for as long as a week in the past.

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During jury selection, the panelist disclosed that she suffered from stress, but it was unknown if her hospitalization was for stress-related reasons.

During the brief hearing today, Mudd ordered jurors to return to court Wednesday, at which time the woman's ability to serve on the panel would be re-evaluated. He rejected the idea of replacing her with an alternate juror right away.

Mudd then asked the attorneys to comment.

"I think it's too early to pull the plug on her," prosecutor Jeff Dusek said.

"I agree that day-to-day is appropriate to evaluate her condition," defense attorney Steven Feldman said. He added that the defense opposed replacement because the juror has been on the panel "since day one."

If she does have to be replaced, one of the six alternates would be selected through random drawing. Deliberations in the penalty phase would have to begin anew.

Jurors are being asked to choose between death by lethal injection or life in prison without parole for the kidnapping and killing of Danielle van Dam.

The same jury that convicted Westerfield of all charges have deliberated more than 14 hours -- over four days -- without arriving at a decision on punishment.

They went home early Monday because two jurors felt ill.

Defense attorney William Nimmo said jurors are probably having moral and philosophical discussions rather than talking about the facts of the case.

"I've got to think that the jury is having disagreements about what the penalty should be," Nimmo said. "We're gauging two of the most horrendous punishments known to man."

Nimmo said freedom is such an important concept to Americans that we send our own children to foreign lands to defend it.

"This is exactly what (Westerfield's) lost," the attorney said. "He has lost that concept of freedom."

Under the law, the 50-year-old former Sabre Springs resident is not "the worst of the worst" and should be spared execution, the attorney said.

But the recommendation is up to the 12 members of the jury, Nimmo said.

"That's a heavy decision ... this struggle over life and death," the attorney said.

Nimmo said that even if Westerfield, a twice-divorced father of two, gets life in prison without parole, he will spend the rest of his life in a nasty, sterile environment.

On Friday, the panelists asked to listen to interviews done with the convicted child killer -- and for access to penalty phase evidence.

The jury asked to listen again to an interview 10News' Mark Matthews did with Westerfield as he returned to his home in Sabre Springs on Feb. 4, two days after the child disappeared and before Westerfield's arrest.

The television interview was played during the trial's guilt phase.

Westerfield told the reporter he had just returned from a weekend in the desert and didn't know anything about the missing child.

During the guilt phase of the trial, Westerfield's attorneys argued that the defendant couldn't have killed the young girl because he was under constant police surveillance from Feb. 5 until his arrest Feb. 22.

The jury also asked to listen again to an interview Westerfield did with police interrogation specialist Paul Redden later on Feb. 4.

Jurors heard about 40 minutes of that interview, in which the defendant explains his every move that weekend, including drinking, and dancing the night of Feb. 1 with a group, which included the victim's mother, at Dad's Cafe and Steakhouse in nearby Poway.

Westerfield was convicted of kidnapping, murder, possession of child pornography, and a special circumstance allegation that the murder took place during a kidnapping.

Should the jury be unable to reach a unanimous verdict, the prosecution will likely look at the vote to decide whether to seek the death penalty again, or let a life without parole sentence stand.

Either way, Westerfield's future appears grim. If he is sentenced to death by injection, he would be sent to San Quentin State Prison and wait through the lengthy appeals process in a spartan cell.

A life sentence carries no possibility of parole. Experts said Westerfield would likely be housed in a section for "special needs" prisoners, who require protection from the general population.