Deliberations Will Wait For Ill Juror

SAN DIEGO -- A sick juror will remain on the panel considering whether to recommend that David Westerfield be sentenced to death or life in prison for killing 7-year-old Danielle van Dam, a judge ruled Wednesday.

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

Judge William Mudd said the female juror was at home recovering from irritable bowel syndrome and was never admitted to the hospital Tuesday.

The stomach ailment has bothered the woman in the past, Mudd said.

The juror -- a woman in her 30s who said during jury selection that she suffers from stress -- was ordered to rest until Friday, the judge said.

Mudd said he spoke to the woman once Tuesday and again Wednesday morning.

"She is feeling much improved, according to what she told me," the judge said.

Mudd told the remaining 11 jurors to return for deliberations Monday after another panelist said she could not deliberate on Friday because of an annual physical and dental appointment.

The judge apologized to the panel for the inconvenience, praising them for their continued hard work and warning them not to discuss the case in the middle of deliberations.

Prosecutor Jeff Dusek said he thought waiting until Monday was too long, but admitted it was a tough call and said he was glad he "wasn't wearing the black robe."

Defense attorney Steven Feldman agreed with the decision to keep the ailing juror on the panel.

Some analysts have speculated that the sick juror is under intense pressure because she might be the only panelist voting to spare Westerfield's life.

"They're a bunch of idiots," Dusek said, referring to experts analyzing the case.

"The pundits say this is an easy call," Mudd said about his decision on whether to replace the sick juror with an alternate.

He said a decision to replace an existing juror was an "absolute mine field," and was second only to instructional error as a way for cases to be overturned.

The jury already has put in about 14 hours over four days, trying to recommend punishment for Westerfield, a Sabre Springs self-employed engineer convicted of kidnapping and killing his neighbor, who was in second grade.

If the sick juror were to be replaced, deliberations would have to start all over again.

Mudd said he would hear oral arguments Friday on a defense motion challenging the constitutionality of the death penalty in California.