DA Responds To Westerfield Request

SAN DIEGO -- A delay in convicted child killer David Westerfield's sentencing is unwarranted and would serve no legitimate purpose in the case, a prosecutor argued in court papers filed Monday.

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's lawyers want Friday's scheduled sentencing postponed so they can investigate claims that 7-year-old Danielle van Dam was killed in the bedroom of her Sabre Springs home -- not during a kidnapping.

Deputy District Attorney Jeff Dusek also said in his court papers that the unidentified source quoted in a San Diego Magazine article provided no basis in fact, or otherwise, for his theory that the child was killed at home.

"No forensic evidence of a violent assault was found in Danielle's bedroom," the prosecutor wrote. "Why kill her inside her own home, then take her body -- the only evidence linking the killer to the crime -- with you as you try to flee the crime scene?"

The prosecutor pointed out that Danielle's fingerprints, blood and 8-inch-long hairs found inside the defendant's motorhome clearly prove she was alive while inside the motor home the last weekend of her life.

Westerfield, 50, was convicted three months ago of murder and murder during a kidnapping, which made him eligible for the death penalty. The same jury later recommended that the former self-employed engineer be put to death.

Defense attorney Robert Boyce said last week that the defense needs time to investigate claims in the article that law enforcement sources told the author Danielle was killed in her bedroom the night of Feb. 1, 2001, or early the next morning.

Boyce also said the defense is preparing a new trial motion based on several, unspecified grounds.

The attorney said media requests for sealed documents in the case and writs requesting appellate review, along with personal matters, have detracted from the preparation of a new trial motion.

In the San Diego Magazine article, the author quotes a police department source who states that Westerfield, after entering Danielle's bedroom, "hit her, and that was it."

Boyce argues that the information is material and relevant to the charged offenses of kidnapping, felony murder based on kidnapping and the kidnapping special circumstance allegation -- which was the basis for the death penalty.

"It should be obvious that this 'investigation' is, and shall continue to be, both futile and a poor use of judicial and other resources,"' Dusek wrote in response.

Westerfield's attorneys have had ample time to pursue the lead, the prosecutor states.

"With at least four attorneys and an unknown number of investigators, ample time has passed to contact and interview 'the likely suspects,'" Dusek wrote.

The author of the article has refused to identify the unnamed individual quoted in his article, the prosecutor said.

He said police officers involved in the case all said the quoted opinions did not come from them.

Dusek said a second reason the defense cited to delay the sentencing does not constitute good cause.

The defense "mysteriously" alludes to other undisclosed legal issues that could undergird its arguments for a new trial, Dusek said.

"Such ambiguity," he wrote, "does not constitute good cause (for delay)."

The prosecutor said Westerfield's attorneys have had more than two months since the penalty phase recommendation to prepare for sentencing.

"The People are entitled to a timely resolution of the case," Dusek wrote. "A delay would serve no legitimate purpose."

"More importantly, a continuance of any length would leave us in the same position we are currently in -- knowledge of an inadmissible, speculative opinion voiced -- or not -- by some unknown individual," he added.

Prosecutors argued at trial that Danielle was alive when she was kidnapped from her bedroom, then killed sometime after Westerfield took her to his bedroom and later to his motor home.

The child's body was discovered Feb. 27 under a tree off Dehesa Road in the East County. The discovery, made by volunteer searchers, came five days after police arrested Westerfield for murder.