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Trial of David Westerfield, criminal defense trial San Diego California
Feldman: criminal defense lawyer
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TRIAL Day 28- august 6th 2002
Closing arguments - Prosecutor Dusek -1
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1 THE COURT: WELCOME BACK, LADIES AND GENTLEMEN.
2 AS WE ENTER THE CLOSING ARGUMENT PHASE OF THE TRIAL
3 I JUST WANT TO REMIND YOU OF SOMETHING THAT I TALKED TO YOU
4 ABOUT WAY BACK WHEN THIS TRIAL STARTED. AND THAT IS THAT WHAT
5 THE LAWYERS HAVE TO SAY IS NOT EVIDENCE. THEY'RE OBVIOUSLY
6 PERMITTED TO COMMENT ON THE EVIDENCE. THEY'RE PERMITTED TO
7 ARGUE WHAT CONCLUSIONS CAN BE DRAWN FROM THAT. BUT THE ULTIMATE
8 DECISION AS TO WHAT THE FACTS PROVE IS FOR YOU FOLKS TO DECIDE.
9 JUST KEEP THAT IN MIND AS YOU HEAR THEIR ARGUMENTS.
10 MR. DUSEK.
11 MR. DUSEK: THANK YOU, YOUR HONOR.
12 LADIES AND GENTLEMEN, WHEN I STOOD IN FRONT OF YOU
13 A LITTLE OVER TWO MONTHS AGO NOW I TOLD YOU THIS CASE WAS ABOUT
14 TWO PEOPLE AND ONLY TWO PEOPLE. DAVID WESTERFIELD AND DANIELLE
15 VAN DAM. THOSE ARE THE TWO PEOPLE THIS CASE IS ABOUT.
16 WE HAVE SAT HERE FOR TWO MONTHS. DAVID
17 WESTERFIELD'S BEEN IN COURT, AS HE'S ENTITLED TO AND AS HE
18 SHOULD BE, BUT I THINK AT TIMES WE'VE LOST TRACK OF THE OTHER
19 PERSON. WE'VE LOST TRACK OF DANIELLE, THE OTHER PERSON THIS
20 CASE IS ABOUT, AND WHAT HAPPENED TO HER, WHAT HE DID TO HER.
21 WE'RE TALKING ABOUT A YOUNG GIRL FOUR FEET THREE
22 INCHES TALL, WEIGHED ABOUT 58 POUNDS, SEVEN-YEARS-OLD, WILL
23 NEVER SEE HER EIGHTH BIRTHDAY. WE'RE TALKING ABOUT WHAT THE
24 DEFENDANT, A 50-YEAR-OLD MAN WHO LIVED TWO DOORS AWAY, DID TO
25 THIS CHILD.
26 THIS CASE, IF YOU STEP BACK AND LOOK AT IT ALL, IS
27 A SIMPLE CASE. IT IS NOT A COMPLICATED CASE, ALTHOUGH THERE MAY
28 BE TIMES WHEN IT SEEMED THAT WAY. CERTAINLY SOME OF THE
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1 SCIENTIFIC EVIDENCE IS COMPLICATED; THE D. N. A. AND ALL THAT
2 TYPE OF STUFF. BUT THE FACTS AND THE REALITY OF WHAT THIS CASE
3 IS ABOUT IS VERY SIMPLE.
4 BACK ON FEBRUARY 1ST GOING INTO FEBRUARY 2ND
5 SOMEBODY KIDNAPPED DANIELLE VAN DAM OUT OF HER OWN HOUSE, OUT OF
6 HER OWN BEDROOM. SIMPLE ENOUGH.
7 BY MY ESTIMATION, 55 HOURS LATER, THAT'S ALL, 55
8 HOURS, GIVE OR TAKE A COUPLE, THE DEFENDANT SHOWED UP AT THE DRY
9 CLEANERS IN POWAY, IN HIS MOTOR HOME AT THE CRACK OF DAWN,
10 BASICALLY IN HIS UNDERWEAR. WHITE T-SHIRT, THIN SHORTS, NO
11 SHOES, NO SOCKS, NO PERSONALITY, AT THE CRACK OF DAWN WHEN IT'S
12 COLD OUT IN FEBRUARY. PARKS HIS MOTOR HOME AS THAT BUSINESS IS
13 OPENING UP AND HALLS IN HIS LAUNDRY, TWO COMFORTERS, TWO PILLOW
14 SHAMS AND HIS JACKET. ON ONE OF THOSE COMFORTERS LAYLA'S HAIR
15 WAS FOUND, THE FAMILY DOG. ON THE JACKET WAS DANIELLE VAN DAM'S
16 BLOOD. ON HIS JACKET TAKEN TO THE DRY CLEANERS THAT MORNING
17 WHEN IT'S COLD OUT, WHEN HE DOESN'T HAVE HIS CLOTHING ON. THAT
18 IN AND OF ITSELF TELLS YOU HE'S GUILTY BEYOND A REASONABLE
19 DOUBT. THAT ALONE. BUT IT DOESN'T STOP THERE.
20 HE'S QUESTIONED BY THE OFFICERS, YOU KNOW, TELL US
21 WHAT'S GOING ON. WHAT'S THE STORY. WHAT'S GOING ON THIS
22 WEEKEND. AND HE SPEAKS TO THE OFFICERS. HE SPEAKS TO JOHNNY
23 KEENE. HE SPEAKS TO PAUL REDDEN. HE SPEAKS TO A MEDIA
24 CONTINGENT. AND HE LIES TO THEM. HE GIVES PHONEY ALIBI, HE
25 GIVES PHONEY EXCUSES FOR WHAT HE'S DOING. HE TELLS US WHERE HE
26 WENT MOST OF THE TIME BUT HE LEFT OUT BIG CHUNKS, LIKE THE DRY
27 CLEANERS, LIKE ALL OF THE INCRIMINATING THINGS. HE GAVE US A
28 BOGUS STORY THAT JUST DOES NOT WASH, IN ADDITION TO THE BLOODY 9368
1 JACKET AND THE COMFORTER WITH THE DOG HAIR. IT'S STARTING TO
2 ADD UP NOW, STARTING TO PILE UP.
3 THE OFFICERS DECIDE WELL, OKAY, MAYBE THERE'S AN
4 EXPLANATION FOR THIS. MAYBE HIS STORY MIGHT BE REASONABLE.
5 LET'S CHECK IT OUT.
6 YOU REMEMBER WE HAD A LADY TESTIFY, CHRISTINA
7 HOEFFS I THINK WAS HER NAME. SHE CAME UP WITH SOME INFORMATION.
8 SHE DIDN'T KNOW IF IT WAS GOOD, SHE DIDN'T KNOW IF IT WAS BAD,
9 BUT SHE SAW ALL THE BLINDS ON THE REAR OF HIS HOUSE CLOSED THAT
10 WEEKEND NIGHT WHEN SHE GOT UP TO TEND TO HER CHILD. MAYBE WE
11 BETTER GO CHECK OUT HIS HOUSE. IF HE'S DOING ALL THESE HORRIBLE
12 THINGS MAYBE HE TOOK HER OVER THERE.
13 WHAT DO THEY FIND? CAN THEY EXCLUDE HIM FROM WHAT
14 THEY FOUND? NO, THEY CAN'T. THEY CANNOT EXCLUDE HIM FROM WHAT
15 THEY FOUND IN HIS HOUSE, IN HIS BEDROOM, IN HIS BED. THEY FOUND
16 HER HAIR, DANIELLE VAN DAM'S HAIR IN HIS BED ON THE PILLOW, ON
17 THE TOP SHEET, ON THE BOTTOM SHEET. HER HAIR. PROOF BEYOND A
18 REASONABLE DOUBT? PROOF BEYOND A POSSIBLE DOUBT. THEY DON'T
19 STOP THERE. THEY CONTINUE THROUGH THE HOUSE AND FIND THE
20 LAUNDRY. IN THE LAUNDRY DO WE FIND ANY SIGN THAT DANIELLE VAN
21 DAM'S BEEN HERE? YEAH. AGAIN, THEY FIND HER HAIR. THEY FIND
22 LAYLA'S HAIR IN HIS LAUNDRY THROUGHOUT THAT LAUNDRY ROOM.
23 THEY WENT TO HIS MOTOR HOME. APPARENTLY THAT WAS
24 SUSPICIOUS. SHOWS UP THE LAUNDRY WITH THE MOTOR HOME BRINGING
25 IN THIS GUILTY STUFF. LET'S LOOK AT THE MOTOR HOME. CAN HE BE
26 EXCLUDED BY THE EVIDENCE THERE? NO, NO, NOT IN THE MOTOR HOME.
27 THEY FIND HER FINGERPRINTS ON THE WALL NEXT TO THE BED. THEY
28 FIND HER HAIR IN THE BATHROOM IN THE SINK WITH THE ROOT STILL
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1 THERE. THEY FIND HER HAIR ON THE FLOOR OUTSIDE THE BATHROOM.
2 THEY FIND HER BLOOD. THEY FIND MORE BLOOD IN THE MOTOR HOME
3 RIGHT BY THAT BATHROOM ENTRANCE. THE BLOOD. THEY FIND DOG
4 HAIRS IN THAT MOTOR HOME. ONCE THEY FIND THOSE SIGNS DIRECTLY
5 LINKING HIM AND HIS PROPERTY TO DANIELLE VAN DAM POLICE GET
6 LUCKY. IF YOU RECALL IT TOOK WHAT, TWO, THREE WEEKS, 23 DAYS TO
7 FIND HER. UP TILL THIS POINT THERE WAS NO DIRECT EVIDENCE THAT
8 SHE WAS EVEN DEAD BUT WE ALL NEW SHE WAS.
9 THEY FIND HER DOWN IN DEHESA. LUCKY. THANK YOU
10 VOLUNTEERS FOR FINDING HER, FOR ALLOWING CLOSURE TO THIS, TO LET
11 US KNOW FOR SURE WHAT WE KNEW ALL ALONG, THAT SHE HAD BEEN TAKEN
12 AND KILLED AND DUMPED LIKE TRASH. BUT WHEN THEY FOUND HER BODY
13 THEY ALSO FOUND MORE EVIDENCE. AN ORANGE FIBER ON HER NECKLACE
14 THAT WE HEARD ABOUT. THEY FOUND BLUE FIBERS IN HER HAIR, ON THE
15 BAG -- THE SHEET, I'M SORRY -- THAT SHE WAS WRAPPED IN FROM THE
16 SCENE. ONE I THINK THEY FOUND ON HER REAR BUTTOCKS AREA. AND I
17 THINK YOU HAVE TO UNDERSTAND SHE WAS NAKED WHEN THEY WERE PLACED
18 THERE, WHEN THEY GOT THERE. SHE WAS FOUND NAKED WITH THESE
19 FIBERS ON HER.
20 SO THE POLICE, THE CRIME LAB -- AND THANK YOU, SAN
21 DIEGO POLICE CRIME LABORATORY -- THE WORK YOU WERE ABLE TO DO IN
22 THE AMOUNT OF TIME YOU HAD. THEY CHECKED THE ORANGE FIBERS,
23 THEY CHECKED THE BLUE FIBERS AND WHAT DID THEY FIND? JUST
24 EXACTLY AS YOU WOULD EXPECT TO FIND IF THE DEFENDANT DID THIS
25 CRIME. THEY GO BACK TO HIS BEDROOM. THEY FIND ORANGE FIBERS ON
26 HIS PILLOW. THEY GO TO THE LAUNDRY ROOM. THEY FIND ORANGE AND
27 BLUE FIBERS EVERYWHERE. THEY GO TO THE S. U. V.
28 HOW WAS SHE TRANSPORTED FROM THE HOUSE TO THE MOTOR
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1 HOME? OUR GUESS IS THE S. U. V. IS THERE ANY EVIDENCE THERE
2 THAT WOULD SO INDICATE? WE FOUND ORANGE FIBERS THERE IN THE
3 REAR SEAT ON THE ARMREST, AND ONE I BELIEVE OVER ON THE
4 PASSENGER SEAT, FRONT PASSENGER SEAT. AND THEY GO BACK TO THE
5 MOTOR HOME AND FIND BLUE FIBERS REMEMBERING THAT SHE HAD BLUE
6 FIBERS IN HER HAIR AND THE OTHER LOCATIONS.
7 IT'S PROBABLY NOT FAIR TO ASK YOU IF YOU CAN
8 REMEMBER WHERE THE BLUE FIBERS WERE IN THE MOTOR HOME. I KNOW
9 IT'S NOT FAIR. YOU FOLKS HAVE SAT HERE AND LISTENED TO THIS ONE
10 TIME THROUGH AND TAKEN PAGES, PAGES OF NOTES. WE HAVE OBVIOUSLY
11 HAD TIME TO DISCUSS THE CASE, WORK THE CASE, ANALYZE THE CASE.
12 BUT CAN YOU REMEMBER WHERE THE BLUE FIBERS WERE FOUND IN THE
13 MOTOR HOME? WHEN THEY WERE ON HER HEAD, UP AGAINST THE
14 HEADBOARD ATTACHED TO HIS BED IN HIS MOTOR HOME, THE HEADBOARD
15 OF HIS MOTOR HOME RIGHT BY THE PRINT WHERE SHE DIED. THAT IS
16 THE CASE. THAT'S IT. IT'S A SIMPLE CASE.
17 BUT THERE IS MORE. THERE IS MORE TO THIS HORRIBLE
18 CRIME, THIS EVIL, EVIL CRIME BECAUSE OF HIS CONDUCT AND WHAT HE
19 DID AFTERWARDS TO TRY TO GET AWAY WITH THIS EVIL CRIME. WE'VE
20 SEEN MUCH OF IT ALREADY. DESTROY THE EVIDENCE. LET ME GET AWAY
21 WITH MURDER OF A SEVEN-YEAR-OLD CHILD. GET RID OF THE BLOOD ON
22 THE JACKET. TAKE THE COMFORTER, THE PILLOW SHAMS TO THE DRY
23 CLEANERS. WHERE IS MY CLOTHING? GET RID OF THE PAJAMAS. WHERE
24 DID THE ORANGE AND BLUE ITEMS COME FROM? GET RID OF THOSE. GET
25 RID OF THE BLACK COWBOY BOOTS THAT WERE DESCRIBED AT DAD'S.
26 HIDE, DESTROY, CONCEAL, WASH ALL THE EVIDENCE. LIE WHEN YOU'RE
27 ASKED WHAT HAPPENED TO THE POLICE DEPARTMENT.
28 AND MAYBE EVEN WHAT AGGRAVATES IT EVEN MORE IS HIS
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1 INTERVIEW WITH THE TV PEOPLE. UNDERSTAND THE SETTING. WHAT'S
2 IN HIS MIND. TWO DOORS DOWN FROM THAT INTERVIEW, TWO DOORS DOWN
3 THE VAN DAMS ARE WONDERING WHERE IS MY CHILD, WHAT HAS HAPPENED
4 TO HER. WILL WE EVER SEE HER AGAIN. WILL WE EVER SEE HER ALIVE
5 AGAIN. HE'S STANDING IN FRONT OF THOSE CAMERAS LYING TO THEM,
6 TO ALL OF US, AND JOKING ABOUT IT. HEY, YOU'RE NOT GONNA PUT
7 THIS ON WITHOUT MY HAT. YUK, YUK, YUK. THAT'S THE KIND OF
8 INDIVIDUAL WE ARE DEALING WITH HERE.
9 BUT IT GETS WORSE, AS WE SAW IN THE PRESENTATION OF
10 THIS CASE. HE TRIED TO BLAME HIS SON. HE TRIES TO PASS THE
11 BLAME OFF ON HIS SON. THE DEFENSE TEAM DID IN THIS CASE. HIS
12 RESPONSIBILITY FOR THAT PORN. NOT MINE. HIS RESPONSIBILITY.
13 THEREFORE, HEY, ALL THESE CIRCUMSTANCES THAT ARE LOOKING BAD,
14 THEY DON'T APPLY TO ME. THEY APPLY TO MY SON, MY OWN FLESH AND
15 BLOOD. AND WE KNOW THAT'S NOT TRUE.
16 MY PURPOSE AT THIS STAGE IS TWOFOLD. TWO THINGS
17 I'M TRYING TO ACCOMPLISH. THE FIRST IS HOPEFULLY TO HELP YOU
18 GET ORGANIZED. YOU HAVE HEARD TWO MONTHS WORTH OF EVIDENCE.
19 YOU'VE JUST HEARD ALMOST AN HOUR OF INSTRUCTIONS. WE'VE GOT I
20 THINK WE COUNTED UP 199 EXHIBITS IN THIS CASE. AND I WILL
21 PRESENT TO YOU AN APPROACH TO HELP YOU GET ORGANIZED. I DID
22 OBSERVE THAT -- PERHAPS I'M EVEN A LITTLE LATE ON THIS -- I
23 NOTICED AS YOU GUYS CAME IN THE COURTROOM HERE THIS MORNING YOU
24 FOLKS HAD ALREADY GOTTEN ORGANIZED. IT LOOKED LIKE THERE WAS
25 PRETTY GOOD LINES COMING IN HERE SO THAT YOU COULD TAKE THE SEAT
26 AND WOULDN'T HAVE TO WALK OVER EVERYBODY ELSE. SO YOU'RE WELL
27 ON YOUR WAY. AND LET ME ASSURE YOU THAT IT WILL SERVE YOUR
28 PURPOSES IF YOU FIND A WAY TO APPROACH THIS TASK. IF YOU LIKE
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1 THE APPROACH THAT I GIVE YOU, GREAT, USE IT. IF YOU DON'T, FIND
2 SOMETHING ELSE. BUT YOUR WORK WILL BE EASIER IF YOU GET
3 ORGANIZED.
4 THE SECOND THING I WILL TRY TO ACCOMPLISH, AND I'LL
5 TELL YOU THAT RIGHT UP FRONT SO YOU KNOW WHERE I'M COMING FROM,
6 I'M HERE TO PERSUADE YOU, TO CONVINCE YOU THAT THE EVIDENCE
7 PRESENTED IN THIS CASE IS BEYOND A REASONABLE DOUBT, IS BEYOND A
8 POSSIBLE DOUBT, IS BEYOND AN IMAGINARY DOUBT THAT DAVID
9 WESTERFIELD MURDERED DANIELLE VAN DAM. UNDERSTAND THAT WHEN I
10 MAKE MY COMMENTS HERE.
11 I THINK WE FIRST HAVE TO TALK ABOUT THE LAW,
12 ALTHOUGH THIS LAW IS NOT THAT COMPLICATED, AND AT LEAST MY
13 ASSESSMENT OF IT DOESN'T APPEAR TO HAVE ANY REAL DISPUTE ABOUT
14 THE LAW. THIS IS ACTUALLY, I'LL CALL IT A FACTUAL CASE, NOT
15 WHETHER OR NOT THE CRIMES WERE COMMITTED, BUT WHETHER OR NOT THE
16 DEFENDANT IS THE ONE THAT DID IT.
17 YOU JUST HEARD THAT THE DEFENDANT IS CHARGED WITH
18 THREE CRIMES: MURDER, KIDNAPPING AND POSSESSING THE DIRTY
19 PICTURES. THREE SEPARATE CRIMES. WE HAVE A SPECIAL
20 CIRCUMSTANCE ALLEGATION ATTACHED TO THE MURDER CRIME.
21 WHAT I'VE DONE WITH THIS BOARD IS MY WRITING. WE
22 SPENT A WHOLE LOT OF MONEY ON D. N. A. SO WE'RE TRYING TO SAVE
23 IT HERE. THIS IS SIMPLY AN OUTLINE OF THE ELEMENTS OF THE CRIME
24 THAT THE COURT JUST READ YOU. AND WHAT I'D LIKE TO DO IS TO
25 REPEAT THAT FOR YOU JUST SO YOU'VE HEARD IT TWICE. AND, AS THE
26 COURT INDICATED, I THINK THESE INSTRUCTIONS WILL BE WITH YOU
27 BACK IN THE JURY ROOM.
28 FIRST COUNT WE HAVE CHARGED IS MURDER. EVERY
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1 PERSON WHO KILLS A HUMAN BEING DURING THE COMMISSION OF
2 KIDNAPPING IS GUILTY OF THAT CRIME. THERE ARE TWO ELEMENTS;
3 A HUMAN BEING WAS KILLED, CAN'T BE A DOG OR CAT;
4 AND THE KILLING OCCURRED DURING THE COMMISSION OF A
5 KIDNAPPING. IT DOESN'T HAVE TO BE INTENTIONAL. IT CAN BE
6 UNINTENTIONAL, IT CAN BE ACCIDENTAL.
7 THERE ARE A VARIETY OF TYPES OF FIRST-DEGREE
8 MURDER. THIS IS WHAT WE CALL FELONY MURDER. WHEN YOU COMMIT A
9 FELONY, CERTAIN TYPES OF FELONIES AND THE PERSON DIES, THAT'S
10 FIRST-DEGREE MURDER. WE'RE DEALING WITH KIDNAPPING HERE. THERE
11 ARE OTHER SERIOUS CRIMES. THERE ARE OTHER TYPES OF FIRST-DEGREE
12 MURDERS WHICH ARE NOT OF CONCERN TO US HERE. THESE ARE THE LAWS
13 THAT PERTAIN TO THIS CASE.
14 THE SECOND HALF OF THE INSTRUCTION THAT THE COURT
15 READ YOU WAS THAT THE KILLING OF A HUMAN BEING, WHETHER
16 INTENTIONAL, UNINTENTIONAL OR ACCIDENTAL, WHICH OCCURS DURING
17 THE COMMISSION OF A KIDNAPPING IS MURDER OF THE FIRST-DEGREE
18 WHEN THE PERPETRATOR, THE DEFENDANT, HAD THE SPECIFIC INTENT TO
19 COMMIT THAT CRIME. THE KIDNAPPING. WE HAVE TO SHOW THAT HE
20 INTENDED TO KIDNAP HER, THAT'S WHAT HE MEANT TO DO, AND THAT SHE
21 DIED DURING THAT KIDNAPPING, EITHER ACCIDENTAL, INTENTIONAL OR
22 UNINTENTIONAL. IF SHE HAS A HEART ATTACK IN THE MIDDLE OF IT,
23 THAT COUNTS. THEY GET HIT BY A CAR AS THEY'RE FLEEING THE
24 SCENE, UNINTENTIONAL. THAT COUNTS. OR CHOKE THE LIFE OUT OF
25 YOU. THAT COUNTS.
26 SPECIAL CIRCUMSTANCE THAT APPLIES TO THAT MURDER
27 KICKS IN OBVIOUSLY ONLY IF HE'S FOUND GUILTY. IF HE'S NOT FOUND
28 GUILTY, TURN OUT THE LIGHTS, EVERYBODY GOES HOME, THE CASE IS
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1 OVER. BUT IF THE CASE OF MURDER IS PROVED BEYOND A REASONABLE
2 DOUBT, THEN YOU GET INTO THE SPECIAL CIRCUMSTANCE. AND I THINK
3 YOU'LL FIND THAT IT'S REMARKABLY SIMILAR TO THE FIRST-DEGREE
4 MURDER IN THIS CASE AS ALLEGED THAT THE MURDER OF DANIELLE VAN
5 DAM WAS COMMITTED BY THE DEFENDANT, DAVID ALAN WESTERFIELD,
6 WHILE THE DEFENDANT WAS ENGAGED IN THE COMMISSION OF THE CRIME
7 OF KIDNAPPING. IF YOU ARE SATISFIED BEYOND A REASONABLE DOUBT
8 THAT THE DEFENDANT ACTUALLY KILLED A HUMAN BEING, AND WAS NOT
9 THE ACCOMPLICE, IT WAS NOT SOMEBODY THAT SAID YEAH, GO AHEAD AND
10 DO IT, HE'S THE ONE THAT ACTUALLY DID THE KILLING, IF YOU'RE
11 CONVINCED THAT HE'S THE ONE THAT DID THE ACTUAL KILLING, YOU
12 NEED NOT FIND THAT THE DEFENDANT INTENDED TO KILL HER IN ORDER
13 TO FIND THE SPECIAL CIRCUMSTANCE TRUE.
14 THE ELEMENTS OF THE SPECIAL CIRCUMSTANCE ARE SORT
15 OF TWO AND A HALF I GUESS. THERE ARE TWO WAYS WE CAN SATISFY
16 THE FIRST ELEMENT. THERE'S ONE WAY WE SATISFY THE SECOND
17 ELEMENT. THAT'S WHY WE HAVE 1A AND 1B. PERHAPS YOU RECOGNIZED
18 THAT WHEN THE COURT READ THE INSTRUCTIONS.
19 1A IS THAT THE MURDER WAS COMMITTED WHILE THE
20 DEFENDANT WAS ENGAGED IN THE COMMISSION OF THE KIDNAPPING. I'M
21 ACTIVELY DOING THIS KIDNAPPING WHEN SHE'S KILLED, OR THAT THE
22 MURDER WAS COMMITTED DURING THE IMMEDIATE FLIGHT AFTER THE
23 COMMISSION OF THE KIDNAPPING. I'VE KIDNAPPED HER. I'VE TAKEN
24 HER TO WHEREVER I'M GOING TO TAKE HER AND DO WHATEVER I'M GOING
25 TO DO TO HER, LEAVE HER BEHIND AND I'M GOING TO HOT TAIL IT TO
26 MEXICO. WHILE I'M IN THAT FLIGHT AND I KILL SOMEBODY IN A
27 TRAFFIC ACCIDENT OR WHATEVER, THAT WOULD COUNT, TOO. OBVIOUSLY
28 THAT'S NOT OF IMPORTANCE TO THIS CASE.
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1 THE SECOND HALF, THE SECOND ELEMENT IS THAT THE
2 MURDER WAS COMMITTED IN ORDER TO CARRY OUT OR ADVANCE THE
3 COMMISSION OF THE KIDNAPPING. TO CARRY OUT OR ADVANCE, HELP YOU
4 COMPLETE IT, HELP YOU GET IT DONE, MAKE IT MORE EFFECTIVE; OR TO
5 FACILITATE THE ESCAPE FROM THAT KIDNAP, TO HELP YOU GET AWAY OR
6 TO AVOID DETECTION. KILL YOUR WITNESS. KILL YOUR VICTIM. YOU
7 JUST KIDNAPPED HER, NOW I HAVE TO KILL HER TO AVOID DETECTION.
8 THAT WOULD QUALIFY.
9 WE'LL MOVE ON TO KIDNAPPING HERE IN A MINUTE. BUT
10 SO THAT YOU UNDERSTAND THE LENGTH OF THE KIDNAPPING, HOW LONG
11 THAT LASTS, IT DOES NOT EXIST ONLY WHEN SHE'S INITIALLY TAKEN,
12 WHEN YOU FIRST GRAB HER. KIDNAPPING IS A CONTINUOUS OFFENSE.
13 THE COURT TOLD YOU THAT WHEN IT SAID THAT THE COMMISSION OF THE
14 CRIME OF KIDNAPPING IS NOT CONFINED TO A FIXED PLACE OR LIMITED
15 PERIOD OF TIME. THAT MEANS IT DIDN'T JUST HAPPEN IN HER HOUSE
16 WHERE HE GOT HER. KIDNAPPING IS A CONTINUOUS OFFENSE. A
17 KIDNAPPING IS STILL IN PROGRESS AFTER THE ORIGINAL TAKING OF THE
18 PERSON. THE KIDNAPPING CONTINUES AS LONG AS THE DETENTION OF
19 THE VICTIM CONTINUES. AS LONG AS HE HAS HER SHE'S BEING
20 KIDNAPPED.
21 SECOND CRIME WE HAVE CHARGED IS OBVIOUSLY THE
22 KIDNAPPING. THE DEFINITION THE COURT GAVE YOU IS AS FOLLOWS:
23 "EVERY PERSON WHO UNLAWFULLY AND WITH PHYSICAL
24 FORCE OR BY ANY OTHER MEANS OF INSTILLING FEAR TAKES OR --
25 STEALS OR TAKES OR HOLDS, DETAINS OR ARRESTS ANOTHER PERSON.
26 STEALS, TAKES, HOLDS, DETAINS, ARRESTS ANOTHER PERSON. AND
27 CARRIES THAT PERSON WITHOUT HER CONSENT FOR A DISTANCE THAT IS
28 SUBSTANTIAL IN CHARACTER. YOU CAN'T VOLUNTARILY GO ALONG, AND
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1 IT HAS TO BE A SUBSTANTIAL DISTANCE. I CAN'T TAKE HER AND MOVE
2 HER OVER HERE. THAT'S NOT SUBSTANTIAL. THAT DOESN'T COUNT.
3 THE COURT GAVE YOU SOME DEFINITIONS OR EXAMPLES OF WHAT IS
4 SUBSTANTIAL. AND BASICALLY WE ARE INCREASING THE DANGER TO THAT
5 VICTIM SO THAT THE INCREASE OF HARM, OF RISK JUMPS UP. TAKE HER
6 TO A PLACE WHERE NOBODY CAN FIND US. NOBODY CAN SEE US. NOBODY
7 CAN HELP HER. NOBODY CAN COME TO HER AID. TAKE HER BACK TO MY
8 HOUSE WHERE NOBODY WILL SEE HER.
9 THERE ARE FOUR ELEMENTS:
10 A PERSON WAS UNLAWFULLY MOVED BY THE USE OF
11 PHYSICAL FORCE OR BY ANY OTHER MEANS OF INSTILLING FEAR. PICK
12 HER UP AND CARRY HER, PHYSICAL FORCE, OR INSTILL FEAR, YOU COME
13 WITH ME, YOU COME WITH ME RIGHT NOW. WE'RE GOING. EITHER ONE.
14 EITHER ONE QUALIFIES.
15 THE MOVEMENT OF THE VICTIM WAS WITHOUT HER CONSENT.
16 SHE DIDN'T KNOWINGLY AND WILLINGLY GO ALONG. THAT WASN'T
17 SOMETHING SHE WANTED TO DO. MAYBE I'D LIKE TO SLEEP THROUGH THE
18 NIGHT AND WAKE UP IN THE MORNING AND GO TO THE FATHER/DAUGHTER
19 DANCE WHEN IT COMES.
20 THE THIRD ELEMENT IS THAT THE MOVEMENT OF THE
21 VICTIM WAS FOR A SUBSTANTIAL DISTANCE. THAT IS SOMETHING THAT
22 WASN'T SLIGHT OR TRIVIAL. PERHAPS WE SEE A SUBSTANTIAL DISTANCE
23 IN THIS CASE. AND CERTAINLY AND MOST OBVIOUSLY THE MOVEMENT
24 MUST HAVE COMMENCED AT A TIME WHEN THE VICTIM WAS STILL ALIVE.
25 YOU CAN'T KIDNAP A DEAD PERSON. WHOA, MAKES SENSE. SHE'S
26 ALREADY DEAD. YOU CAN'T KIDNAP HER. I GUESS IF YOU KILL HER IN
27 THE BED, THAT WOULDN'T COUNT FOR A KIDNAPPING. THAT'S NOT WHAT
28 HAPPENED HERE. WE DON'T NEED TO CONCERN OURSELVES WITH THAT.
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1 WHY WOULD ANYONE KILL HER IN BED, LEAVE NO SIGNS AND THEN TAKE
2 HER? WHY TAKE HER?
3 THE OTHER ELEMENT, THE OTHER ALLEGATION THAT WE
4 HAVE HAD FOR THE KIDNAPPING IS THAT THE VICTIM WAS UNDER 14
5 YEARS-OF-AGE. CLEARLY SHE WAS. SHE WAS HALF THAT AGE.
6 THE THIRD COUNT THAT WE HAVE CHARGED, PERHAPS WE
7 HAVE BEEN A LITTLE LOOSE WITH TERMS HERE. WE'VE BEEN CALLING IT
8 "PORNOGRAPHY." I GUESS ONE WORD IS EASIER TO USE THAN THE
9 ENTIRE DEFINITION THAT SHOWS UP ON THE JURY INSTRUCTIONS AND ON
10 THE VERDICT FORMS THAT YOU WILL BE GETTING.
11 BUT I THINK YOU PROBABLY RECOGNIZE WHEN THE COURT
12 GAVE YOU THE INSTRUCTIONS THE WORD "PORNOGRAPHY" WASN'T EVEN IN
13 THERE. IT WASN'T THERE AT ALL. OBSCENITY WASN'T THERE. THE
14 DEFINITIONS WE ARE USING COME FROM THE JURY FORM AND FROM THE
15 INSTRUCTIONS THAT THE COURT GAVE YOU.
16 THE CRIME IS DEFINED AS FOLLOWS:
17 "EVERY PERSON WHO KNOWINGLY POSSESSES OR CONTROLS
18 IN ANY MANNER THE PRODUCTION OF WHICH INVOLVES THE USE OF A
19 PERSON UNDER THE AGE OF 18, KNOWING THAT THE MATTER DEPICTS A
20 PERSON UNDER THE AGE OF 18 PERSONALLY ENGAGING IN OR SIMULATING
21 SEXUAL CONDUCT, IS GUILTY OF THIS CRIME." A MOUTHFUL
22 ADMITTEDLY.
23 I'VE BROKEN DOWN THE CRIME INTO BASICALLY FOUR
24 ELEMENTS. THE JURY INSTRUCTIONS TALK ABOUT THREE BUT I SPLIT
25 ONE IN HALF. FIRST ELEMENT IS THAT THE DEFENDANT KNOWINGLY
26 POSSESSED THE MATTER, THE STUFF, THE PICTURES, THE PRODUCTION OF
27 WHICH INVOLVED THE USE OF A PERSON UNDER THE AGE OF 18. THE
28 PERSON WE'RE SEEING ON THE IMAGES HAS TO BE UNDER 18. THE
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1 DEFENDANT KNEW THE PERSON WAS UNDER THE AGE OF 18. AND THE
2 PERSON DEPICTED IN THOSE PHOTOGRAPHS, THOSE COMPUTER ITEMS HAD
3 TO BE ENGAGED IN OR SIMULATING SEXUAL CONDUCT, A TERM OF ART
4 WHICH IS THEN DESCRIBED LATER ON. AND BASICALLY THEY ARE ALL OF
5 THE SEX ACTS YOU CAN IMAGINE. PLUS SIMPLY APPEARING IN A
6 SUGGESTIVE MANNER, A POSE TO STIMULATE THE VIEWER. YOU DO NOT
7 HAVE TO BE NAKED. YOU DO NOT HAVE TO BE PARTIALLY CLOTHED. YOU
8 CAN BE FULLY CLOTHED. YOU WILL GET A CHANCE TO LOOK AT ALL OF
9 THE PHOTOGRAPHS, INCLUDING IF YOU REQUEST, THE PHOTOGRAPHS OF
10 DANIELLE LELEK -- DANIELLE L. -- I'M SORRY, DANIELLE L.
11 YOU'LL BE ABLE TO SEE THAT SHE WAS NOT NUDE.
12 LAYING ON A CHAIR BY A POOL, CLOTHED AND A TOWEL OVER HER HEAD
13 AND A SWIM SUIT. BUT YOU'LL BE ABLE TO LOOK AT THAT POSE. LOOK
14 AT THAT POSE AND ASK YOURSELF WHY WAS THAT PICTURE TAKEN. WHY
15 WAS THAT PICTURE SAVED ON MY COMPUTER. ACTUALLY DOWNLOADED ON
16 TO THE C. D.S. YOU'LL BE ABLE TO LOOK AT ALL OF THE REST OF THE
17 THINGS THAT YOU'VE ALREADY SEEN AND YOU'LL BE ABLE TO MAKE THAT
18 DETERMINATION.
19 THE FIRST QUESTION I THINK YOU HAVE TO ASK YOURSELF
20 IS ARE -- ARE THESE THREE CRIMES, WERE THESE THREE CRIMES
21 COMMITTED. AND I WOULD SUGGEST THAT YOU START WITH THE
22 KIDNAPPING. START THERE FIRST. FROM THEN YOU BUILD TO THE
23 MURDER.
24 WAS DANIELLE VAN DAM KIDNAPPED? WAS SHE FORCIBLY
25 TAKEN FROM HER HOME? FROM HER BED? FROM HER BEDROOM? START
26 HERE AND THE CASE AGAIN IS SIMPLE. LISTEN TO THE 911 TAPE. DO
27 YOU REMEMBER WAY BACK WHEN THAT WAS PLAYED HEARING HER MOTHER
28 DESCRIBE THE ANGUISH IN HER VOICE, THE DETAILS OF WHAT HAD
9379
1 HAPPENED? LISTEN TO THAT 911 TAPE. THAT TELLS YOU THE
2 KIDNAPPING HAPPENED. BASICALLY TELLS YOU HOW IT HAPPENED.
3 WE DON'T NEED TO HEAR ALL THE OTHER INFORMATION
4 THAT WE GOT FROM THE VAN DAMS; ALL THE DRUGS, ALL THE ALCOHOL,
5 THE SEX, WHO'S DOING THIS, WHO'S DOING THAT. THAT'S GOT NOTHING
6 TO DO WITH THE KIDNAPPING. IT'S ON THE TAPE, FOUR MINUTES LONG,
7 ABOUT FOUR PAGES OF TRANSCRIPT. THAT TELLS YOU THAT SHE WAS
8 KIDNAPPED.
9 AND AGAIN, YOU DO NOT HAVE TO DECIDE WHERE SHE WAS
10 KIDNAPPED FROM. OBVIOUSLY SHE WAS KIDNAPPED OUT OF HER BEDROOM.
11 BUT SHE COULD HAVE BEEN KIDNAPPED ANYWHERE ELSE. WANDERS OUT
12 OUT IN THE STREET SLEEP WALKING AND HE GRABS HER. WALKING DOWN
13 STAIRS AND HE GRABS HER. WALKING IN THE KITCHEN AND HE GRABS
14 HER. ALL WE KNOW IS SHE WAS TAKEN OUT OF HER HOUSE AND HE DID
15 IT. HOW WAS THIS CRIME COMMITTED? HOW DID HE DO IT? HOW DID
16 HE GET AWAY WITH IT? FIRST OF ALL, I DO NOT HAVE TO PROVE AND
17 YOU DO NOT HAVE TO DECIDE HOW IT WAS DONE. YOU DON'T. GO BACK
18 TO THE DEFINITION. JUST WAS IT DONE. WAS SHE KIDNAPPED, NOT
19 HOW. AND IT'S PROBABLY A GOOD THING BECAUSE KIDNAPPING IS A
20 TYPE OF CRIME THAT'S DONE IN SECRET. THERE IS USUALLY NOT A
21 WHOLE LOT OF DIRECT WITNESSES TO KIDNAPPING. PERPETRATOR AND
22 THE VICTIM. THEY KNOW HOW IT WAS DONE. DANIELLE VAN DAM NO
23 LONGER LIVES.
24 WE DO KNOW THAT IT WAS COMMITTED. WE DO KNOW THAT
25 IT WAS COMMITTED. AND I THINK AT THE BEGINNING OF THIS CASE
26 BACK IN THE OPENING STATEMENTS I TOLD YOU THAT I WOULD TELL YOU
27 HOW IT HAPPENED AND I THINK FROM THE EVIDENCE WE HAVE A PRETTY
28 GOOD IDEA OF HOW IT HAPPENED IN THIS CASE. THERE'S PROBABLY TWO
9380
1 WAYS THAT HE WAS ABLE TO GET AWAY {WERE|WITH} IT. ONE IS BY FAR
2 THE BETTER, IF YOU LOOK AT ALL THE EVIDENCE I THINK. BUT AGAIN
3 YOU DO NOT HAVE TO DECIDE. YOU DO NOT ALL HAVE TO AGREE ON HOW
4 HE DID IT, JUST THAT HE DID IT.
5 TWO WAYS. THE BEST WAY, BASED UPON THE EVIDENCE
6 AND ALL THE EVIDENCE IN THIS CASE, CAME IN THROUGH THE SIDE DOOR
7 IN THE GARAGE. THE GARAGE DOOR HAD BEEN LEFT UNLOCKED WHEN
8 DENISE KEMEL WENT OUTSIDE TO CHECK THE CELL PHONE, TRIED TO MAKE
9 THE CONNECTION, CAME BACK IN AND SHE DIDN'T LOCK IT. IF YOU
10 RECALL, WHEN I ASKED HER "DID YOU LOCK THAT SIDE GARAGE DOOR
11 WHEN YOU CAME BACK INTO THE HOUSE?" SHE KNEW SHE HADN'T AND SHE
12 KNEW WHAT IT MEANT. YOU COULD SEE THE REACTION ON HER. "NO, I
13 DIDN'T." SHE LEFT THE DOOR OPEN.
14 AND ONCE YOU GET INTO THE GARAGE YOU HAVE FREE
15 ACCESS TO THE HOUSE BECAUSE THEY HAD SWITCHED THE LOCKS ON THE
16 HOUSE GARAGE DOOR. ONCE YOU GET INTO THE HOUSE -- OR INTO THE
17 GARAGE YOU GET INTO THE HOUSE. I THINK FROM THE EVIDENCE THAT
18 YOU HAVE RECEIVED THE BEST EXPLANATION IS THAT HE CAME, WENT IN
19 THROUGH THERE, GOT INTO THE HOUSE. THEY CLOSED THE DOOR WHEN
20 THEY GET HOME FROM DAD'S. THE RED LIGHT GOES OFF, THAT ALARM
21 SYSTEM THAT WAS TELLING THEM THAT THE SIDE GARAGE DOOR WAS OPEN.
22 THEY CLOSE THAT, ALARM LIGHTS GO BLANK.
23 THEIR HOME. HE'S INSIDE. THEY PINNED HIM INSIDE.
24 HE DIDN'T GET OUT OF THERE FAST ENOUGH. WHY DO I SAY THAT?
25 BECAUSE IT'S 3 O'CLOCK, 3:30, WHENEVER DANIELLE'S FATHER WAKES
26 UP FOR WHATEVER REASON, WHETHER HE HAD TO USE THE BATHROOM OR
27 THE LIGHTS -- THE SOUND, HE WAKES UP AND HE SEES THE SECOND
28 ALARM LIGHT LIT. HE CHECKS IT OUT. GOES DOWNSTAIRS AND FINDS
9381
1 THE REAR SLIDING GLASS DOOR OPEN. THAT'S HOW HE GOT OUT. ISN'T
2 THAT HOW IT HAPPENED? HE COMES INTO THE HOUSE BEFORE DANIELLE'S
3 MOTHER AND FRIENDS COME BACK FROM DAD'S, GETS PINNED IN AND
4 HIDES SOMEWHERE, PROBABLY IN HER ROOM. AND WE HAVE THE PICTURES
5 HERE THAT SHOW THAT AS YOU STAND IN THE DOORWAY AND LOOK
6 STRAIGHT AHEAD AT DANIELLE'S BED OFF TO THE SIDE IT'S ALL
7 BLOCKED. YOU CAN HIDE OVER THERE. YOU DON'T NEED TO GET IN THE
8 CLOSET. YOU TAKE YOUR CHANCES. YOU HOPE TO ALL THAT YOU CAN
9 HOPE TO THAT NO ONE'S GOING TO WALK IN. AND IN THIS CASE HIS
10 HOPES ARE REALIZED. NOBODY WALKED IN THAT ROOM. YOU SHUT THE
11 DOOR. MAKE SURE NOBODY'S GOING TO WAKE UP. THAT'S HOW IT
12 HAPPENED. HE STAYS THERE UNTIL ALL'S QUIET, WHICH DIDN'T TAKE
13 THAT LONG, AND HE GOES OUT THE BACK DOOR, OUT THE SIDE GATE BACK
14 TO HIS HOUSE. THAT'S HOW IT HAPPENED.
15 THE ONLY OTHER POSSIBILITY, AND IT'S NOT AS GOOD
16 BECAUSE IT DOESN'T TAKE INTO ACCOUNT THE OTHER FACTS, THE OTHER
17 POSSIBILITY WOULD BE THAT THE SIDE DOOR TO THE GARAGE JUST HAD
18 NOTHING TO DO WITH THIS. SOMEHOW HE FORCED HIS WAY IN THROUGH
19 THE REAR SLIDING GLASS DOOR, GOT UP AND GOT HER AND WENT OUT THE
20 SAME WAY. DOESN'T MAKE SENSE BECAUSE IT DOESN'T TAKE INTO
21 ACCOUNT THE FIRST ACTIVATED LIGHT. AND WHY, YOU KNOW, FORCE THE
22 DOOR OPEN. THAT'S HOW IT HAPPENED. HE GOT LUCKY. HE GOT
23 DESPERATE BUT HE GOT LUCKY.
24 THE BOTTOM LINE IS, THOUGH, HE DID IT. HE GOT AWAY
25 WITH IT. SOMEBODY BROKE INTO THAT HOUSE AND GOT HER. SOMEBODY
26 GOT HER OUT WHILE HER SCREAMING, YELLING, ALERTING HER FAMILY,
27 SOMEBODY GOT HER OUT WITHOUT THE DOG DOING ANYTHING. GOOFY
28 PUPPY GOING TO SLOBBER ALL OVER YOU, EVEN IF IT WAS OUT RUNNING
9382
1 AND ABOUT. SOMEBODY ACCOMPLISHED THE KIDNAPPING. THAT'S ALL WE
2 NEED TO KNOW. IT'S NICE TO KNOW HOW IT HAPPENED. I THINK WE DO
3 KNOW HOW IT HAPPENED.
4 ONCE IT HAPPENED THEN WE MOVE ON TO THE MURDER
5 COUNT. AND THE TWO QUESTIONS ARE SIMPLE. WAS A HUMAN BEING
6 KILLED? AND WAS IT DURING A KIDNAPPING? OH, YEAH. OH, YEAH.
7 SHE WAS CERTAINLY KIDNAPPED AND SHE WAS KILLED DURING THAT
8 KIDNAPPING. SHE WAS KIDNAPPED FOR WHO KNOWS HOW LONG, KIDNAPPED
9 OVER TO HIS HOUSE, KIDNAPPED AGAIN WHEN HE TOOK HER UP TO THE R.
10 V., KIDNAPPED HER WHEREVER HE TOOK HER TO KILL HER. SHE WAS
11 KIDNAPPED UNTIL SHE WAS DEAD.
12 WE DO NOT HAVE TO PROVE THERE WAS AN INTENTIONAL
13 KILLING. THERE ARE MANY THINGS THAT WE DO NOT HAVE TO PROVE ON
14 A MURDER CASE, MUCH LIKE THE KIDNAPPING CASE. BUT HE DID KNOW,
15 HE IS SMART ENOUGH TO KNOW, THAT AS SOON AS SHE WOKE UP, AS SOON
16 AS SHE SAW HIS FACE AND RECOGNIZED HIM HE'D HAVE TO KILL HER.
17 HE WOULD HAVE TO KILL HER. YOU CANNOT LET A NEIGHBOR TWO DOORS
18 DOWN GO HOME. YOU JUST CAN'T.
19 MURDER. THE QUESTIONS ARE TYPICALLY ASKED HOW DID
20 IT HAPPEN, WHERE DID IT HAPPEN, WHY DID IT HAPPEN, WHEN DID IT
21 HAPPEN. I DON'T HAVE TO PROVE THAT. YOU DON'T HAVE TO DECIDE
22 THAT. YOU HAVE TO DECIDE WHAT THE ELEMENTS OF THE CRIME, THE
23 INSTRUCTIONS, TELL YOU YOU HAVE TO DECIDE. WE CAN TAKE OUR BEST
24 ESTIMATES, GUESSES, EDUCATED OPINIONS AS TO WHERE SHE WAS
25 KILLED, HOW SHE WAS KILLED, WHY SHE WAS KILLED AND WHEN SHE WAS
26 KILLED. THE WHEN OBVIOUSLY HAS BECOME A POINT OF CONTENTION
27 HERE. THE DEFENSE HAS RAISED AN ALIBI IN THIS CASE. I WASN'T
28 WITH HER WHEN SHE WAS KILLED, THEREFORE, THAT DOES BECOME A
9383
1 POINT THAT WE HAVE TO TALK ABOUT, THAT WE HAVE TO ESTABLISH IN
2 THIS CASE. WHEN WAS SHE KILLED?
3 AND I THINK WE START WITH THE OPENING STATEMENT,
4 PROMISES MADE OF HOW IMPORTANT OR HOW FORCEFUL THIS EVIDENCE WAS
5 GOING TO BE, HOW GOOD THIS ALIBI WAS. WHEN YOU HEARD OPENING
6 STATEMENTS, PROMISES MADE. "YOU'RE GOING TO BE CONVINCED BEYOND
7 ANY DOUBT THAT IT WAS IMPOSSIBLE, IMPOSSIBLE FOR DAVID
8 WESTERFIELD TO HAVE DUMPED DANIELLE VAN DAM IN THAT LOCATION.
9 THE EVIDENCE WILL SHOW BEYOND DOUBT THAT IT WAS IMPOSSIBLE FOR
10 HIM TO HAVE PLACED HER THERE. THEIR EVIDENCE." REFERRING TO
11 US. THAT'S HOW GOOD THE DEFENSE THOUGHT THE EVIDENCE WAS.
12 THAT'S WHAT THEY WERE OPERATING UPON.
13 DID IT MEASURE UP? HARDLY. WHEN YOU LOOK AT
14 EVIDENCE RELATING TO TIME OF DEATH, BASICALLY YOU WERE PRESENTED
15 WITH THREE TYPES OF WITNESSES IN THIS CASE. THE ENTOMOLOGISTS,
16 THE BUG GUYS, THE PATHOLOGIST, DR. BLACKBOURNE, AND THE FORENSIC
17 ANTHROPOLOGIST, DR. RODRIGUEZ. AND YOU HAVE TO USE ALL OF THEM
18 IN CONJUNCTION. ONE DOES NOT OVERWEIGH THE OTHER. THEY EACH
19 HAVE THEIR STRENGTHS, THEIR WEAKNESSES. THEY RELY UPON EACH
20 OTHER FOR CERTAIN THINGS. SOMETIMES THEY'RE GOOD, SOMETIMES
21 THEY'RE NOT SO GOOD, DEPENDING UPON THE SITUATION.
22 AND I'D ASK YOU TO ADDRESS IT IN THIS WAY, IN THIS
23 APPROACH. START WITH THE ENTOMOLOGISTS, THE BUG GUYS. AND I
24 HESITATE TO SAY IT, BUT IF YOU CAN THINK BACK TO DAVID FAULKNER,
25 THE FIRST WITNESS THE DEFENSE CALLED, WHO HAD OBVIOUSLY BEEN
26 CALLED TO THE SCENE BY LAW ENFORCEMENT, HE'S A LOCAL GUY. BRING
27 HIM OUT HERE AND SEE WHAT HE CAN SAY. BUT WHAT I HESITATE TO
28 SAY IS THAT WHEN WE HEARD DAVID FAULKNER TESTIFY AND LISTENED TO
9384
1 WHAT HE HAD TO SAY, MAN, WE DIDN'T KNOW ANYTHING ABOUT BUG
2 EVIDENCE AT THAT TIME. DID WE? CERTAINLY WE DIDN'T KNOW ENOUGH
3 TO ASK HIM A WHOLE LOT OF QUESTIONS. WE DIDN'T KNOW ANYTHING
4 ABOUT ENTERING THIRD STAGE, END STAGE MAGGOT WHATEVER. WE
5 DIDN'T KNOW BEGINNING. WE DIDN'T KNOW END. WE DIDN'T KNOW
6 ABOUT THIS.
7 KAMAL AND THE OTHER GUY, GREENBURG, ANDERSON. WE
8 DIDN'T KNOW ALL THE PROBLEMS, ALL THE LOOP HOLES. CAN YOU
9 IMAGINE WHAT WE WOULD LEARN FROM FAULKNER NOW IF WE GO BACK AND
10 ASK HIM MORE QUESTIONS? I'M SURE WE WANT TO DO THAT, DON'T WE?
11 PERHAPS NOT. BUT I THINK WHEN YOU LOOK AT ALL THE ENTOMOLOGISTS
12 THAT TESTIFIED, WE CAME TO A BASIC UNDERSTANDING OF THEIR FEEL
13 OF WHAT THEY DO, HOW THEY DO IT AND WHERE THE PROBLEMS ARE. AND
14 I THINK THE BASICS ARE AS FOLLOW FROM ALL OF THEM ONCE THEY WERE
15 PINNED DOWN. THEY CAN TELL US THEIR ESTIMATED LENGTH OF TIME
16 FROM THE TIME A FLY DROPS AN EGG ON A BODY UNTIL THE BODY'S
17 RECOVERED. THEY CAN TELL US THAT. GENERALLY. APPROXIMATION.
18 ESTIMATION. THEY CAN DO THAT.
19 AND HOW DO THEY DO THAT? WELL, THE ENTOMOLOGIST
20 HOPEFULLY WILL BE AT THE SCENE AND GATHER UP ALL OF THE INSECTS,
21 THE FLIES AND ALL THE DEVELOPMENTAL STAGES OF THE BUGS. WE
22 COUNT ON HIM TO GET ALL OF THEM, TO NOT ONLY GET ALL OF THE
23 VARIOUS SIZES AND STAGES ON THE BODY, BUT TO DO A THOROUGH
24 SEARCH AROUND THE BODY TO GET ALL OF THOSE LITTLE GUYS THAT ARE
25 LEFT.
26 ONCE YOU GET ALL THE BUGS, THEN OBVIOUSLY, WE HAVE
27 HEARD, YOU GOT TO GET THE APPROPRIATE WEATHER DATA. HOPEFULLY
28 YOU CAN GET WEATHER DATA CLOSEST TO THE SCENE. OBVIOUSLY,
9385
1 THAT'S GOING TO BE IDEAL. IN ALL CASES YOU'RE GONNA FIND A BODY
2 THAT'S NOT CLOSE TO A WEATHER STATION OR A GOLF COURSE OR A
3 AIRPORT. BUT YOU GET WHAT YOU CAN, OR AS MANY SOURCES AS YOU
4 CAN, AND IT LOOKS LIKE YOU WANT HOURLY DATA INSTEAD OF HIGHS AND
5 LOWS FOR THE DAY. BUT STILL, YOU GET WHAT YOU CAN.
6 WE ULTIMATELY LEARNED WHEN WE GOT TO DR. GOFF AND
7 DR. HALL THAT NOT ONLY DO YOU HAVE TO IDENTIFY THE BUGS, THE
8 FLIES, THE MAGGOTS, BUT YOU GOT TO MEASURE 'EM. YOU GOT TO
9 CHECK THEIR LENGTH TO SEE HOW FULLY DEVELOPED THEY ARE. KIND OF
10 LIKE SOMEBODY WHO HAS A TWO-YEAR-OLD CHILD. WHAT IS YOUR
11 TWO-YEAR-OLD CHILD DOING? OH, MY CHILD IS CRAWLING ON HER HANDS
12 AND KNEES. MY TWO-YEAR-OLD CHILD IS DOING ADVANCED MATH. OKAY
13 WELL, MAYBE YOUR CHILD IS A YOUNG TWO-YEAR-OLD AND I'VE GOT AN
14 OLD TWO-YEAR-OLD. THAT'S WHY YOU NEED TO SEE THE LENGTH. JUST
15 BECAUSE THEY'RE IN ONE STAGE DOESN'T MEAN THEY'RE ALL GOING TO
16 BE THE SAME. SO THAT'S WHY THEY MEASURE 'EM, COMPUTE 'EM WITH
17 ALL OF THEIR STUDIES, SAY HEY, IS THIS A BEGINNING TWO-YEAR-OLD
18 OR AN ENDING TWO-YEAR-OLD, AND THEN SOMEHOW YOU EQUATE IT TO THE
19 APPROPRIATE TEMPERATURE FOR YOUR AREA. YOU DON'T WANT TO
20 COMPARE IT -- THE ARCTIC AND PALM SPRINGS. LET'S GET SOME
21 TEMPERATURES HERE THAT ARE GOING TO COMPARE WITH OUR AREA WHERE
22 WE FOUND THIS BODY SO WE CAN HAVE AN APPROPRIATE COMPARISON.
23 WE'VE HEARD HOW THESE GUYS DEVELOP, YOU KNOW, MUCH
24 FASTER AT THE HIGHER RATES. DEVELOPMENTAL SPEED IS SLOWER AT
25 THE LOW RATES, AT THE LOW TEMPERATURES. THEREFORE, FOR
26 COMPARING 'EM TO A HIGH TEMPERATURE, MAN, THESE LITTLE GUYS ARE
27 GOING TO BE MOVING THROUGH THE STAGES REAL FAST. IF YOU COMPARE
28 'EM AT A LOW TEMPERATURE THEY'RE GOING TO BE A LITTLE SLUGGISH.
9386
1 WE'VE ALSO LEARNED THE TERM "POSTMORTEM INTERVAL,"
2 P. M. I. HOWEVER, EVERY TIME SOMEBODY BUYS A HOUSE NOW AND GETS
3 SOME P. M. I. ON THEIR INSURANCE, THAT MAY MEAN SOMETHING ELSE.
4 BUT THE WAY THEY USE IT, I THINK WE UNDERSTAND, IS IT IS A BROAD
5 TERM FROM TIME OF DEATH TO TIME OF RECOVERY, AN OVERALL TERM.
6 THE DEFENSE TRIED TO MAKE IT THE TIME OF EGGS TO
7 THE TIME OF RECOVERY AND IT'S NOT. THEY ALL TOLD YOU THAT, THAT
8 THAT'S NOT THE WAY TO USE IT. IT'S THE ENTIRE TIME, THE
9 POSTMORTEM INTERVAL, FROM TIME OF DEATH TO TIME OF RECOVERY. WE
10 CAN USE THE BUGS TO TRY TO HELP FILL IN SOME OF THAT BUT IT
11 DOESN'T TELL US ALL OF IT. BECAUSE WE DON'T KNOW WHEN THE FLIES
12 GOT ON THERE, FOR ONE THING. VERY OBVIOUS THING RIGHT OFF THE
13 BAT, WERE THERE ANY FLIES AROUND? DID THEY KILL HER? SHE GOES
14 DOWN, FLIES ARE THERE. WE DON'T KNOW THAT. WE HAVE TO MAKE
15 SOME GUESSES, HUNCHES, APPROXIMATIONS BEFORE WE EVEN GET TO THAT
16 POINT.
17 WE'VE LEARNED SOME OTHER THINGS REGARDING
18 ENTOMOLOGY. THESE FLIES IN A NORMAL SITUATION, TYPICAL
19 SITUATION WILL GO TO THE NATURAL OPENINGS; EYES, EARS NOSE AND
20 THROAT. ANY NORMAL CASE THAT'S WHERE THEY GO AND SET UP HOME,
21 LAY THEIR EGGS. YOU'VE GOT THE MOISTURE, YOU'VE GOT THE
22 DARKNESS, YOU'RE HOPEFULLY PROTECTED FROM THE PREDATORS THAT ARE
23 COMING TO GET YOU.
24 AND AS I HAVE MENTIONED, WE HAVE LEARNED THAT THEY
25 DEVELOP FASTER AT HIGHER TEMPERATURES THAN LOWER TEMPERATURES.
26 WE'VE ALSO LEARNED FROM DR. GOFF AND DR. HALL SOME OF THE
27 MISTAKES THAT CAN BE MADE, PERHAPS EVEN COOKING THE BOOKS,
28 MAKING SURE YOU GET THE RESULTS YOU WANT. SUCH AS HOW CAN YOU
9387
1 GET FAULTY RESULTS, UNRELIABLE RESULTS, RESULTS THAT ARE NOT
2 RIGHT? ONE THING YOU CAN DO IS YOU DON'T MEASURE THOSE LITTLE
3 LARVAE GUYS. YOU DON'T DETERMINE IF THEY'RE BEGINNING OR END
4 STAGE OR THE END OF ANY OF THOSE STAGES. WE DON'T KNOW IF DAVID
5 FAULKNER DID THAT. WE KNOW HE COLLECTED THEM. WE KNOW HASKELL
6 MEASURED THEM, BUT WE DON'T KNOW -- AND IF HASKELL'S THE ONE
7 DOING THE MEASURING, YOU MIGHT WONDER WHETHER OR NOT DAVID
8 FAULKNER EVEN MEASURED 'EM, AND THAT MAKES A DIFFERENCE WHEN
9 YOU'RE COMING UP WITH YOUR ESTIMATES. BECAUSE WHEN YOU DO IT,
10 AS BOTH DR. GOFF AND DR. HALL SAID, YOU KIND OF LIKE SAY
11 BEGINNING STAGE, THIS IS HOW LONG IT WOULD TAKE, THE END STAGE,
12 THIS IS HOW LONG IT WOULD TAKE, AND YOU HAVE TO KNOW THEIR SIZE
13 AND PUT 'EM ON THE SCALE.
14 WE KNOW THERE ARE WAYS TO SHRINK THIS TIME PERIOD.
15 AGAIN, DR. GOFF, DR. HALL TOLD US ABOUT THIS MAGGOT MASS
16 TEMPERATURE, ARTIFICIALLY INFLATING THAT TEMPERATURE THAT
17 HASKELL DID. YOU JACK THAT TEMPERATURE UP TO 90, 95 DEGREES FOR
18 24 HOURS, THOSE LITTLE GUYS ARE GOING TO BE DEVELOPING LIKE
19 CRAZY. YOU CAN'T DO THAT, ACCORDING TO THE LAST TWO GUYS.
20 THAT'S NOT FAIR. THAT'S NOT RIGHT. THAT GIVES YOU PHONEY
21 RESULTS. AND HASKELL WAS GOOD ENOUGH TO KNOW THAT. HE WAS GOOD
22 ENOUGH TO KNOW THAT. YOU DO THE SAME THING WHEN YOU JACK UP THE
23 TEMPERATURE IN THE CRYPT. WHEN THE BODY IS TAKEN TO THE MORGUE
24 AND PLACED IN THE REFRIGERATOR UNIT, HERE WHAT, WAS IT 40
25 DEGREES OR SO, I THINK WAS THE STANDARD TEMPERATURE DOWN THERE.
26 THEY DIDN'T USE THAT. HASKELL DIDN'T USE THAT. HE USED THE 60,
27 65 DEGREES, INCREASED THE TEMPERATURE FROM REALITY, SHRINK THE
28 TIME THE BODY -- OR THE BUGS WERE ON THE BODY. GIVE THEM A
9388
1 FAVORABLE TIMEFRAME. USE THE WRONG TEMPERATURE GAUGE,
2 TEMPERATURE STUDIES.
3 WE'VE GOT APPARENTLY THREE PEOPLE WHO DO WORK IN
4 THIS FIELD; KAMAL, GREENBURG AND ANDERSON, AND THEY'VE EACH DONE
5 THEIR STUDIES UNDER VARYING TEMPERATURES. ALL THEIR 80 DEGREES,
6 HOW FAST DO THOSE LITTLE GUYS DEVELOP? THEY MUST SCOOT ALONG
7 PRETTY GOOD AT THAT TEMPERATURE. GREENBURG DID IT AT LOOKS LIKE
8 TWO TEMPERATURE RANGES, 71 AND 84 DEGREES. ANDERSON DID IT AT
9 SEVERAL TEMPERATURES LOOKS LIKE DEPENDING ON WHICH FLIES HE WAS
10 USING. SO WE'VE GOT DEVELOPMENTAL RATES FROM 61 DEGREES ALL THE
11 WAY UP TO LOOKS LIKE 84 DEGREES. THAT'S GOING TO MAKE A
12 DIFFERENCE. WE DIDN'T HEAR ABOUT THIS FROM FAULKNER. I THINK
13 WE HEARD ABOUT IT ONLY FROM HASKELL WHEN I THINK IT WAS HALL
14 SAID HE USED THE KAMAL RATES, THE 80 DEGREES WHICH IS CONSISTENT
15 WITH WHAT HE WAS DOING HERE ALL ALONG, DOING EVERYTHING TO JACK
16 UP THE TEMPERATURE TO SHRINK THE DEVELOPMENTAL TIME. WHAT WE
17 BASICALLY HAVE IS A RANGE OF TEMPERATURES.
18 WHAT ELSE CAN YOU DO TO AVOID THE REALITY OF THIS?
19 WELL, YOU CAN TAKE YOUR BUGS, YOU CAN MEASURE 'EM. YOU CAN
20 DETERMINE WHERE THEY FALL ON THE IN-STAR STAGE, THE BEGINNING OR
21 AT THE END. YOU CAN DETERMINE HOW MANY THERMAL UNITS I THINK IT
22 TAKES FOR THEM TO DEVELOP AND HOW LONG IT'S GOING TO TAKE. AND
23 WHAT CAN YOU DO TO SCREW THINGS UP? WHOOPS, I DON'T HAVE ENOUGH
24 TIME TO MAKE THAT LAST CALCULATION. I DIDN'T HAVE ENOUGH TIME
25 TO PUT A DATE ON IT. THAT'S WHAT YOU CAN DO. I WAS PRESSED FOR
26 TIME. I COULDN'T DO THAT LAST LITTLE BIT OF MATH. INSTEAD, I
27 WILL GIVE YOU A GENERIC TIME PERIOD. THAT'S WHAT HALL DID.
28 THAT'S WHAT HE DID.
9389
1 FINALLY, WE HAD TO SUMMARIZE THEIR TIME PERIODS ON
2 OUR EXHIBIT 197. AND I THINK IT WAS MADE CLEAR WHEN THEY
3 TESTIFIED, AND IF IT WASN'T MADE CLEAR THEN CERTAINLY IT SHOULD
4 BE MADE CLEAR NOW, THAT THE TIMES WE HAVE ON THIS CHART ARE THE
5 TIMES THAT THEY SAID CAME OFF OF THEIR REPORT, THE REPORT THAT
6 THEY PREPARED. CERTAINLY WHEN THEY GOT INTO COURT THEY -- AT
7 LEAST HASKELL SAID WELL, MAYBE THE 13TH BUT UNLIKELY. MAYBE THE
8 12TH BUT UNLIKELY. THESE ARE THE DATES THAT WE HAVE ON THE
9 REPORTS. AND AS WE GO THROUGH THEM, EVERY ONE'S DIFFERENT.
10 EVERY ONE IS DIFFERENT. HAS A DIFFERENT ESTIMATION,
11 APPROXIMATION. SOME MIGHT EVEN SAY GUESS.
12 CERTAINLY WE CAN UNDERSTAND HASKELL'S NUMBERS. HE
13 JACKED UP THE TEMPERATURES, INCREASE THAT MAGGOT MASS
14 TEMPERATURE FOR 24 HOURS. INCREASE THE CRYPT TEMPERATURE. USE
15 KAMAL TO SPEED THINGS ALONG. DAVID FAULKNER, WE JUST DON'T HAVE
16 ENOUGH INFORMATION ABOUT HIM. WE DIDN'T KNOW ENOUGH TO ASK HIM
17 QUESTIONS AT THAT TIME.
18 WE GET TO DR. GOFF AND DR. HALL, AND BASICALLY THEY
19 DID WHAT YOU'D WANT AN EXPERT TO DO IN THIS CASE, ALTHOUGH
20 ROBERT HALL TRIED TO HIDE IT. AND BY THAT I'M SUGGESTING THIS.
21 HERE WE HAVE TWO GUYS THAT APPARENTLY KNOW WHAT THEY'RE DOING.
22 ONE GUY'S A LITTLE MATHEMATICALLY -- HE HAS A PROBLEM HERE AND
23 THERE, CAN'T ADD A COUPLE THINGS, BUT THEY KNOW THEIR SCIENCE.
24 THEY KNOW THEIR SCIENCE.
25 AND YOU BRING IN AN EXPERT AND WHAT DO YOU WANT HIM
26 TO DO? LET'S GIVE ME ALL OF THE INFORMATION SO YOU FOLKS WILL
27 HAVE ALL OF THE INFORMATION TO DECIDE. COMPUTE IT FOR BOTH
28 FLIES, THE REGINA SERACATA, OR WHATEVER THE OTHER ONE WAS.
9390
1 COMPUTE IT FOR SINGING HILLS TEMPERATURES. COMPUTE IT FOR BROWN
2 FIELD TEMPERATURES AND COMPUTE IT FOR THE VARYING OTHER
3 TEMPERATURES WITH KAMAL, GREENBURG AND ANDERSON. GIVE US THOSE
4 ANSWERS. EXPLAIN THOSE ANSWERS. LET THE JURY KNOW WHY ONE YOU
5 THINK IS BETTER THAN THE OTHER. AND WHEN WE DO THAT, BASICALLY
6 THAT'S WHAT DR. GOFF DID. HE GAVE US SINGING HILLS. HE GAVE US
7 BROWN FIELD. HE GAVE US THE TIME PERIODS.
8 I THINK THE NUMBERS ON THE RIGHT, FROM WHAT HE TOLD
9 US, WERE ALL OF THE TIMES BASED UPON HIS CALCULATIONS WHICH WERE
10 NOT AFFECTED BY HIS MATH ERRORS IS WHEN THEY ENTERED THAT THIRD
11 IN-STAR PERIOD. THE NUMBER ON THE LEFT BASED UPON HIS
12 CALCULATION IS WHEN THEY WOULD HAVE COMMITTED THE THIRD IN-STAR
13 PERIOD WHICH, IN FACT, IS WHAT AT LEAST ONE OR MORE OF THOSE
14 LITTLE MAGGOTS WERE AT. THEY WERE AT 17.2 CENTIMETERS OR
15 MILLIMETERS -- I DON'T KNOW THE DIFFERENCE. THEY WERE AT 17.2
16 WHEN 18 WAS THE END OF THE LINE. THEY'RE ALMOST THERE. AND YOU
17 START THAT PHASE AT 11 MILLIMETERS, I THINK IT WAS. SO THEY HAD
18 ALREADY REACHED IT. ALMOST A MILLIMETER A DAY COULD GET THROUGH
19 THAT NINE-DAY PERIOD. SO THAT'S WHY, IT'S THE NUMBER ON THE
20 LEFT ESTIMATED HE ADMITS ESTIMATED AS IT SHOULD BE. PLUS, YOU
21 KNOW, GIVE OR TAKE A DAY ON EITHER SIDE. PLUS IF THEY SHOW UP
22 THERE AT NIGHT, THE FLIES AREN'T GOING TO BE ACTIVE. SO YOU
23 DROP HER THERE THE NIGHT BEFORE, FLIES AREN'T OUT THERE.
24 THERE'S A LOT OF SLOP HERE.
25 DR. GOFF DID WHAT YOU'D WANT AN EXPERT TO DO. LIKE
26 HIM, NOT LIKE HIM, AGREE WITH HIM, DON'T AGREE WITH HIM, BUT HE
27 GAVE YOU THE DATA. CONTRARY TO DR. HALL. WE DIDN'T FIND OUT
28 TILL WE GOT TO CROSS-EXAMINATION THAT HE DID ALL THIS WORK. ON
9391
1 DIRECT EXAMINATION WE HEARD 12 THROUGH 23, FEBRUARY 12 THROUGH
2 23, THAT'S WHAT WE HEARD. BUT WHEN WE GOT A CHANCE TO LOOK AT
3 WHAT HE WAS ACTUALLY DOING, HE DID EVERYTHING. HE JUST
4 SUMMARIZED IT FOR US. HE DID THE COMPUTATIONS FOR BOTH FLIES,
5 FOR SINGING HILLS AND HE TOLD US ALSO FOR BROWN FIELD.
6 HE SAID HE DID THE COMPUTATION FOR ENTERING THE
7 THIRD IN-STAR AND FOR EXITING THE THIRD IN-STAR BUT DECIDED --
8 THE DEFENSE DECIDES YOU GUYS DIDN'T NEED TO KNOW THAT, DIDN'T
9 NEED TO KNOW THAT. IN FACT, IF I REMEMBER RIGHT, THE BLUE
10 NUMBERS UP THERE ARE THE NUMBERS THAT APPEARED ON HIS REPORT.
11 THE RED NUMBERS ARE THE ONES THAT SHOWED UP ON SOME NOTES THAT
12 HE MADE THE SAME DAY BUT WERE NOT TURNED OVER TILL RIGHT BEFORE
13 HE TESTIFIED.
14 ALL YOU FOLKS NEED TO KNOW, ACCORDING TO DR. HALL,
15 IS THAT FEBRUARY 12TH TO 23RD DATE. YOU GUYS PROBABLY CAN'T
16 FIGURE OUT THE REST OF THE STUFF. BUT WHEN WE LOOK AT IT WE CAN
17 FIGURE IT OUT REAL EASY. WE CAN SEE THAT IT TAKES NINE DAYS TO
18 GET FROM THE BEGINNING TO THE END OF THAT THIRD IN-STAR PERIOD.
19 WE CAN FIGURE THAT OUT. WE CAN SEE HOW DOWN THROUGH UNDER
20 ANDERSON AT 16 DEGREES, THE APPROPRIATE TEMPERATURE, 16 DEGREES,
21 THE 61 DEGREES WHICH WAS EVEN A LITTLE HIGH FOR THE AVERAGE AT
22 SINGING HILLS, ENTERS THE THIRD IN-STAR ON FEBRUARY 13TH. OKAY.
23 WHEN DID THEY LEAVE? WHEN DID THEY LEAVE THAT STAGE? WELL, I
24 DIDN'T HAVE TIME TO DO IT. HE GAVE YOU A MOUTHFUL OF ALL THE
25 NUMBERS, ALL OF THE THERMAL UNITS, ALL OF THE COMPUTATIONS BUT
26 HE DIDN'T PUT A DATE OVER THERE. HE DIDN'T PUT A DATE AND HE'D
27 ASK YOU TO BELIEVE THAT HE DIDN'T HAVE ENOUGH TIME. YEAH, SURE.
28 IF HE'D HAVE PUT A DATE THERE HE KNOWS HIS CLIENT WOULD BE
9392
1 GUILTY. HE KNOWS THE PROMISE WOULD HAVE BEEN BROKEN. THAT'S
2 WHY HE DIDN'T PUT HIS DATE THERE. AND INSTEAD, WE HEAR FEBRUARY
3 12TH THROUGH 23RD. JEEZ, HOW DO WE EVEN GET THAT? WHERE IS THE
4 12TH UP THERE? ARE YOU JUST MAKING THAT UP? HE COULDN'T FIGURE
5 IT OUT. THANK GOODNESS HE WAS THE LAST ONE TO TESTIFY AFTER WE
6 HAD A CHANCE TO LISTEN TO EVERYBODY ELSE.
7 THOSE ARE THE ENTOMOLOGISTS AND WHAT THEY TOLD YOU.
8 BUT WE KNOW THIS WAS NOT A TYPICAL CASE. THIS DATA WAS BASED
9 UPON A TYPICAL CASE BY HOW BUGS GO IN THE NOSE, MOUTH, EARS, AND
10 THROAT. THEY START PROGRESSING. WE KNOW THIS IS NOT TYPICAL.
11 FIRST OF ALL, WE KNOW IT'S NOT TYPICAL BECAUSE THAT'S NOT WHERE
12 THEY WENT. THEY DIDN'T GO TO THOSE LOCATIONS WHERE IT WAS MOIST
13 AND DARK AND PROTECTED. THEY WENT TO THE STOMACH. AND THE
14 STOMACH WAS NOT A NATURAL OPENING TILL THE ANIMALS GOT THERE,
15 WHICH BUILDS IN MORE TIME.
16 WE HAVE TO WAIT FOR HER TO BE EATEN BY AN ANIMAL
17 AND THEN FOR THE FLIES TO SHOW UP AND START LAYING THEIR EGGS.
18 WE KNOW SEVERAL OTHER THINGS THAT MAKE THIS SITUATION NOT
19 TYPICAL. DAVID FAULKNER TOLD US THERE JUST WEREN'T AS MANY
20 FLIES OUT THERE THIS YEAR. HE HADN'T SEEN THE POPULATION THIS
21 LOW IN THE ENTIRE TIME HE'D BEEN CHASING THESE BUGS. THAT'S GOT
22 TO TELL YOU, EVEN IF THEY WON'T, THAT YOU'RE NOT GOING TO GET AS
23 MANY FLIES ON THE BODY, THE SAME AMOUNT OF TIME TO START THE
24 PRODUCTION. IT HAS A BEARING. IT HAS A MEANING ON WHAT'S GOING
25 ON.
26 THE WEATHER WAS UNUSUAL. IT WAS DRY, COOL AND HOT,
27 BOTH ENDS BUT IT WAS DRY. NO RAIN SINCE WHAT, 1950, CIVIL WAR
28 DAYS? GEE, BACK WHEN THEY WERE FINDING GOLD UP IN SUTTER'S
9393
1 CREEK, BACK WHEN CALIFORNIA WAS BECOMING A STATE. THAT'S HOW
2 UNUSUAL THE WEATHER SITUATION WAS.
3 THE BODY WAS MUMMIFIED. THAT HIGH, HARD, DRY,
4 UNAPPEALING SURFACE THAT WE HEARD ABOUT SO MUCH. BUGS AREN'T
5 GOING TO LAND THERE. EVEN ON A FRESH BODY THEY'RE NOT GOING TO
6 LAND ON THE SKIN, EVEN THOUGH IT MIGHT BE SOFT AND NICE, AND
7 THERE'S NO MOISTURE. SHE WAS WELL ON HER WAY TO THE
8 MUMMIFICATION THAT WE SAW. AND LOOKS LIKE SHE WAS PROBABLY
9 TRANSPORTED, KEPT OFF THE GROUND FOR A DAY OR TWO, WHEN WE GET
10 INTO WHEN SHE WAS KILLED AND WHAT HE WAS DOING DRIVING ON HIS
11 ADVENTURE THROUGH THE DESERT.
12 WE ALSO HAVE PREDATORS THAT WE HEARD ABOUT THAT EAT
13 THE FLY LARVAE. AND IF YOU RECALL FLY POPULATION IS DOWN,
14 THEREFORE NOT MANY OF THEM ARE GOING TO BE THERE. EARLY PART OF
15 FEBRUARY WAS COLD, AT LEAST FOR US, THEREFORE THE PRODUCTION IS
16 SLOWER. THE GROWTH IS SLOWER. IT GIVES THE ANTS, THE BEETLES,
17 THE FOUR-LEGGED GUYS A CHANCE TO EAT MORE AND MORE AND MORE
18 BEFORE THEY FULLY DEVELOP.
19 NO ONE'S STANDING HERE SAYING THEY WIPED OUT
20 GENERATIONS BUT THEY DID WIPE OUT SOME, AND WE DON'T KNOW HOW
21 MANY. HOW MANY CYCLES, HOW MANY LAYERS? CERTAINLY, THESE GUYS
22 DIDN'T GET -- THE FIRST EGG THAT WAS LAID THERE, THE ANIMALS
23 TOOK CARE OF THAT, THE ANTS DID.
24 THIS IS NOT AN EXACT SCIENCE. THIS IS NOT D. N. A.
25 THIS IS NOT RADIOLOGY. THIS MAY NOT EVEN COME CLOSE TO
26 PSYCHOLOGY. WE KNOW THAT THERE IS NO SUCH THING, IF YOU USE THE
27 TERM APPROPRIATELY, OF THE MAXIMUM P. M. I. THAT CAN BE
28 DETERMINED FROM THE BUGS. THEY WILL TELL YOU THE MINIMUM BASED
9394
1 UPON A TYPICAL SITUATION. THEIR EVIDENCE WOULD BE HELPFUL AND
2 IS RECEIVED IF YOU HAVE A RECENT DEATH AND YOU'RE TRYING TO
3 PROVE SOMEBODY KILLED THE PERSON AFTER THE FLIES WERE ALREADY
4 THERE.
5 I THINK WE ASKED THAT QUESTION. IF WE WERE TRYING
6 TO SHOW THAT SOMEBODY KILLED YOUNG DANIELLE ON THE 25TH OR THE
7 26TH, CAN'T DO THAT BECAUSE THE FLIES TELL US OTHERWISE.
8 THEY'RE HELPFUL NOW. THEY DON'T HELP US.
9 ON THE OTHER END, PUTTING THE ENTOMOLOGIST ASIDE,
10 THE SECOND CATEGORY OF WITNESSES THAT HELPED DETERMINE A TIME OF
11 DEATH AS WE WERE TOLD TO CHECK WITH, DR. BLACKBOURNE, A FORENSIC
12 PATHOLOGIST, A FELLOW WHO DID THE AUTOPSY. HE'S THE MEDICAL
13 DOCTOR. HE SAW HER BODY. HE SAW THE CONDITION IT WAS IN, HOW
14 BADLY SHE WAS MUMMIFIED. YOU DON'T NEED TO SEE IT AGAIN.
15 THAT'S NOT A FRESH KILL. THAT TOOK A WHILE TO GET THERE. THAT
16 IS NOT A BODY THAT'S OUT THERE FOR LESS THAN A WEEK.
17 ON THE 23RD WE HEARD FROM DR. HALL, AND AFTER IT
18 HAD BEEN OUT THERE FOUR DAYS TO GET TO THAT CONDITION. DR.
19 BLACKBOURNE TOLD YOU THAT. HIS ESTIMATE NECESSARILY BROUGHT TEN
20 DAYS TO SIX WEEKS. AND THAT'S ALL YOU CAN DO. YOU CAN ESTIMATE
21 TEN DAYS TO SIX WEEKS. THAT DOESN'T SATISFY THE PROMISE, THE
22 IMPOSSIBILITY THAT WAS GIVEN TO YOU. DR. BLACKBOURNE COULDN'T
23 USE THE STANDARD TEST TO DETERMINE TIME OF DEATH BECAUSE SHE WAS
24 SO OLD, SO MUMMIFIED, SO FAR GONE.
25 THE RIGOR MORTIS, LIVIDITY, CHECKING THE EYEBALLS,
26 THE CORE TEMPERATURE. ALL OF THE THINGS THAT THEY TYPICALLY
27 USE, TIME HAD ALREADY PASSED. THEY COULDN'T USE THEM. THAT'S
28 WHY IT'S NECESSARILY BROUGHT IN THIS TIME PERIOD.
9395
1 AND FINALLY, WE GET TO THE LAST CATEGORY OF
2 WITNESSES WHO HELPED DETERMINE THE TIME OF DEATH. AND PROBABLY
3 THE INDIVIDUAL WHO'S BEST QUALIFIED TO DO THAT, THE FORENSIC
4 ANTHROPOLOGIST, DR. RODRIGUEZ. AND I SAY BEST QUALIFIED FOR ONE
5 REASON. HE DOES IT FULLTIME ALL DAY EVERY DAY. HE LOOKS AT
6 DECOMPOSED BODIES, BODIES THAT HAVE BEEN BLOWN UP, LOST IN WAR,
7 RECOVERED FROM ACCIDENTS, PUTTING PIECES BACK TOGETHER. HE DOES
8 THIS. HE'S THE INDIVIDUAL THE MEDICAL DOCTORS CALL IN, HE TOLD
9 US, TO HELP DETERMINE THIS TIME OF DEATH.
10 HELP ME OUT, DR. RODRIGUEZ. MY TESTS ARE
11 INEFFECTIVE AT THIS POINT. AND HE GAVE YOU THE REASONS FOR HIS
12 ESTIMATION, ESTIMATION OF FOUR TO SIX WEEKS. OBVIOUSLY, IT GOES
13 BACK TO WHEN WE KNOW SHE WAS KILLED. BUT LOOKING AT THE BODY,
14 THAT'S HOW BADLY SHE WAS. THAT'S HOW BADLY SHE LOOKED.
15 HE TALKED ABOUT THE IDEAL CONDITIONS FOR
16 MUMMIFICATION, IDEAL, AND SHE WAS. I SAW THE HANDS, THE FEET,
17 THE COLOR OF HER SKIN FROM THIS. PARTS OF HER WERE TOTALLY
18 BLACK. TOTAL SKIN WAS WRINKLED. SHE WAS SO BADLY DEHYDRATED,
19 SO BADLY MUMMIFIED THEY HAD TO CUT HER HANDS OFF TO REHYDRATE
20 HER FINGERS TO DO THE FINGERPRINTS.
21 THAT'S HOW BADLY SHE WAS MUMMIFIED. SHE WAS A
22 SMALL BODY WHICH MUMMIFIES FASTER, QUICKER WITH NO FAT, NO MEAT.
23 STARTS OUT AT 58 POUNDS I THINK WAS THE ESTIMATE. AT THE MORGUE
24 SHE WAS IN HER 30S. THAT'S WHY THE BUGS DIDN'T GO TO THE EYES,
25 EARS, NOSE AND THROAT. WHY THIS IS NOT A TYPICAL CASE? WHY YOU
26 CANNOT RELY UPON THE BUGS TO SHOW THE IMPOSSIBILITY, IF YOU
27 MUMMIFY EARLY, SHE GOT A HEAD START BEFORE SHE WAS DROPPED. THE
28 EYES, EARS, NOSE AND THROAT WERE NOT ATTRACTIVE TO THE FLIES.
9396
1 WE HAD TO WAIT AROUND UNTIL THE ANIMALS CAME BY AND OPENED HER
2 UP.
3 FINALLY, IN THIS TIME OF DEATH CALCULATION
4 ASSESSMENT, I THINK YOU HAVE TO USE YOUR COMMON SENSE. YOUR
5 COMMON SENSE. YOU HAVE TO LOOK AT THOSE PICTURES. YOU HAVE TO
6 LOOK AND SEE HOW BADLY SHE WAS DECOMPOSED. AND YOU ALSO CAN
7 LOOK AT THE RECOVERY SCENE PHOTOGRAPHS, AND SPECIFICALLY I'M
8 TALKING ABOUT PHOTOGRAPH "E" ON EXHIBIT 4. THERE IS NO NEED TO
9 GET UP CLOSE. BUT YOU CAN SEE WHERE SHE WAS DUMPED, THE SURFACE
10 UNDERNEATH WHICH IS GOING TO DRY OUT, WHICH THERE WAS NO
11 MOISTURE UNDERNEATH, DRY CONDITIONS, MUMMIFICATION. BUT LOOK
12 WHAT'S GROWING OVER HER. THE POISON OAK IS ALREADY STARTING TO
13 GROW OVER HERE. THE LEAVES, THE BRANCHES, THEY'RE ON TOP OF
14 HER. WE DON'T KNOW HOW LONG THAT TAKES, BUT THIS WAS NOT AN
15 OVERNIGHT SITUATION IN.
16 THIS MURDER OCCURRED, THE ELEMENTS OF MURDER, OF
17 COURSE, ESTABLISHED THAT SHE WAS KILLED EARLY FEBRUARY, BEFORE
18 HIS ALIBI KICKS IN. WHAT DAY EARLY FEBRUARY? YOUR GUESS IS AS
19 GOOD AS MINE. WE HAVE SOME ASSUMPTIONS WHEN WE GET TO IT. I
20 THINK WE HAVE SOME PROOF THAT MIGHT INDICATE IT. BUT AGAIN, YOU
21 DO NOT HAVE TO DECIDE WHICH DAY EARLY FEBRUARY.
22 PERHAPS NOW WOULD BE A SWITCHING --
23 THE COURT: ALL RIGHT. WE CAN DO THAT, OR DO YOU WANT TO
24 TAKE AN EARLY LUNCH BREAK, AND IS THAT MORE CONVENIENT TO YOU?
25 DEPENDS ON HOW YOU WANT TO DO IT.
26 MR. DUSEK: LET ME MOVE ON THEN, YOUR HONOR.
27 THE COURT: ALL RIGHT.
28 MR. DUSEK: AS I WAS WORKING THROUGH THE CRIMES AND WHERE
9397
1 THEY WERE COMMITTED, WE'VE ALREADY TALKED ABOUT THE KIDNAPPING.
2 WE'VE JUST FINISHED TALKING ABOUT THE MURDER.
3 MOVING ON TO THE DIRTY PICTURES, WAS THAT CRIME
4 COMMITTED? AND I THINK HERE YOU HAVE TWO QUESTIONS. DO THE
5 IMAGES QUALIFY AS DIRTY PICTURES, AS SEXUAL MATERIAL, AS THE
6 COURT DEFINED THEM FOR YOU? AND THE SECOND QUESTION IS WHO
7 POSSESSED THEM. WAS THE DEFENDANT IN POSSESSION OF THEM? FIRST
8 QUESTION, DOES IT QUALIFY. AND I WILL USE THE TERM "PORN" JUST
9 FOR EASE OF COMMUNICATION AT THIS POINT. ONE WORD IS BETTER
10 THAN THE WHOLE PHRASE.
11 IS IT PORN AS DEFINED IN THE STATUTE? YOU SAW THE
12 PICTURES ONE TIME. YOU SAW WHAT THEY DEPICTED. AND AGAIN, IT'S
13 JUST THE LIVE PEOPLE THAT COUNT. THE DRAWINGS DON'T COUNT. BUT
14 YOU SAW WHAT THEY WERE. HOW OLD THEY LOOKED, WHAT THEY WERE
15 DOING, WHAT THEY WERE SAYING. YOU KNOW THEY QUALIFY AS PORN.
16 YOU SAW HOW OLD THEY WERE. IF YOU MUST LOOK AGAIN, LOOK AGAIN.
17 HOW ELSE DO WE KNOW IT'S PORN? PROBABLY THE BEST
18 SO YOU DON'T HAVE TO LOOK AGAIN IS THE DEFENSE EXPERT MARCUS --
19 OR DR. LAWSON, MARCUS, I THINK, LAWSON. HE TOLD YOU THEY WERE
20 PORN BY HIS ACTIONS. HE WOULDN'T TAKE 'EM ON AN AIRPLANE TO GO
21 ACROSS STATE LINES BACK TO WASHINGTON. HE WOULDN'T RUN THE
22 RISK. HE DIDN'T WANT TO BE ARRESTED. CLEARLY IT QUALIFIES AS
23 PORN AS DEFINED BY THE LAW.
24 MR. FELDMAN: YOUR HONOR, OBJECT TO THAT LAST LINE AS
25 IMPROPER, BASED UPON THE COURT OF APPEAL.
26 THE COURT: DULY NOTED. OVERRULED.
27 MR. FELDMAN: AND I'D LIKE TO MAKE WHATEVER REQUISITE
28 MOTIONS I MAKE, PLEASE TAKE THEM --
9398
1 THE COURT: I WILL TAKE THEM AT AN APPROPRIATE TIME.
2 CONTINUE, MR. DUSEK.
3 MR. DUSEK: THE ONLY QUESTION IS WHO POSSESSED THEM. AND
4 YOU HEARD THERE WAS ACTUAL POSSESSION AND CONSTRUCTIVE
5 POSSESSION. YOU ARE IN POSSESSION OF THE BADGE THAT'S ON YOU
6 NOW. YOU HAVE ACTIVE CONTROL OF THAT. THESE WATER BOTTLES IN
7 FRONT OF YOU, YOU HAVE CONSTRUCTIVE POSSESSION OF THEM. YOU
8 HAVE CONTROL OVER THEM, BUT YOU DO NOT HAVE ACTIVE CONTROL OF
9 THEM. IT'S NOT IN YOUR POSSESSION RIGHT NOW. THE REASON THAT'S
10 IMPORTANT, BECAUSE HE DID NOT HAVE THE C. D.S AND THE ZIP DISK,
11 ZIP DRIVES ON HIS PHYSICAL POSSESSION, PHYSICAL PERSON. HE HAD
12 'EM IN HIS OFFICE AREA. WE'RE TALKING ABOUT CONSTRUCTIVE
13 POSSESSION HERE.
14 NOW, WHO POSSESSED THEM? WHO POSSESSED THIS STUFF?
15 DEFENSE CALLED DR. LAWSON. SIMILAR VAIN OF DR. HALL, AS I LOOK
16 AT IT. DR. LAWSON APPROACHED THIS CASE, HIS ASSESSMENT, WITH
17 BLINDERS ON. LIMITED FOCUS. I DON'T WANT TO LOOK AT ALL OF THE
18 EVIDENCE. I JUST WANT TO LOOK AT THE STUFF SO I CAN BLAME NEAL.
19 I JUST WANT TO LOOK TO COMPUTERS TO SEE WHO'S BEEN GOING THROUGH
20 THE E-MAILS, TO SEE WHO'S BEEN GOING THROUGH THE WEBSITES. I'M
21 JUST GONNA LOOK AT THAT. FORGET ABOUT THE ZIP DISKS AND THE C.
22 D.S, WHICH IS WHERE THE STUFF IS, THAT'S THE CRIME. NOT ON WHAT
23 YOU HAVE ON YOUR COMPUTER AND WHAT YOU'VE DONE WITH IT AND HOW
24 MANY TIMES YOU'VE LOOKED AT IT.
25 HE SPENT ALL OF HIS TIME, IT SOUNDED LIKE, LOOKING
26 AT THE COMPUTERS, TRYING TO POINT THE FINGER AT NEAL. THAT'S
27 WHAT HE DID. HE TOLD IS THAT HE EVEN REVIEWED NEAL'S POLICE
28 REPORT. IF YOU'LL RECALL, WHEN NEAL WESTERFIELD TESTIFIED HE
9399
1 SAID YEAH, I GAVE A POLICE REPORT. IT'S BASICALLY WHAT I'M
2 SAYING HERE IN COURT. IT'S NOT MINE. WE LEARNED FROM NEAL THAT
3 HE HAD EVEN TOLD THE DEFENSE HE HAD INTERVIEWED WITH HIM AND
4 TOLD HIM THE SAME THING. BUT DR. LAWSON COMES IN HERE WITH I'M
5 JUST GONNA GET NEAL. I'M GONNA CREATE REASONABLE DOUBT. HE WAS
6 A HIRED GUN, AND HE WAS UNNECESSARY. HE DIDN'T HAVE TO COME IN
7 HERE.
8 IF WE WANT TO KNOW WHO THE PORN BELONGED TO ASK
9 NEAL. YOU SAW HIM TESTIFY. YOU WERE ABLE TO ASSESS HIM HERE.
10 HE DIDN'T NEED TO GET UP THERE. HE SHOULDN'T HAVE HAD TO GET UP
11 THERE AND TESTIFY. HE SHOULDN'T HAVE HAD TO DO THAT. MARCUS
12 LAWSON AND OTHERS FORCED IT. HE GOT UP THERE AND TOLD US, YEAH,
13 I LOOKED AT SOME OF THAT STUFF. BUT I DON'T DOWNLOAD IT. I
14 DON'T PUT IT ON C. D.S. I DON'T PUT IT ON ZIP DISKS. I DON'T
15 ORGANIZATION IT. I DON'T LABEL IT AND I DON'T LOOK AT IT.
16 WHO DOES? WE HAD TO ASK HIM, HAD TO ASK HIM, AND
17 HE HAD TO SAY MY DAD. THAT STINGS. IT WASN'T NECESSARY. AND,
18 IN FACT, HIS TESTIMONY IS CORROBORATED BY THE PHYSICAL EVIDENCE,
19 THE CIRCUMSTANTIAL EVIDENCE, IF YOU WILL.
20 IF YOU RECALL WHERE THOSE ZIP DISKS WERE FOUND,
21 NEAL EVEN KNEW WHERE THEY WERE FOUND, BY NO. 12 IN HIS DAD'S
22 OFFICE. HE WAS IN THERE LOOKING FOR WHATEVER IT WAS HE WAS
23 LOOKING FOR AND HE FOUND 'EM. LIKE ANY CURIOUS GUY, HE'S GOING
24 TO TAKE A PEAK AT SOME. THEY WERE IN HIS DAD'S OFFICE. HIDDEN
25 BEHIND HIS DAD'S BOOKS IN AN ENVELOPE LABELED WITH HIS DAD'S
26 BUSINESS NAME SPECTRUM. HIS DAD'S I. E. A. CODE, WHATEVER THAT
27 MEANS, AN I. E. A. THAT APPEARS ON SOME OF HIS DAD'S BUSINESS
28 DOCUMENTS.
9400
1 JIM WATKINS TOLD YOU THEY FOUND A ROLODEX WITH THE
2 COMPUTER PORN SITES ON IT IN HIS COMPUTER. THERE SHOULD BE NO
3 DOUBT AS TO WHO POSSESSED THAT. THINK ABOUT IT. THE THING
4 THAT'S ALWAYS STRUCK ME --
5 MR. FELDMAN: OBJECTION, PERSONAL OPINION.
6 THE COURT: OVERRULED. PROPER ARGUMENT.
7 MR. DUSEK: IN YOUR COMMON SENSE, I WOULD IMAGINE MOST
8 GUYS AND MAYBE EVEN MOST LADIES HAVE TAKEN A PEAK AT PLAYBOY
9 THROUGH THE YEARS, MAYBE EVEN BOUGHT ONE OR TWO. AND AS A CHILD
10 MAYBE YOU EVEN KEPT A FEW AROUND. BUT HOW MANY? HOW MANY YOUNG
11 BOYS WHEN THEY HAVE THEIR PLAYBOYS AND KNOW WHAT IT CONTAINS ARE
12 GONNA HIDE THEIR PLAYBOYS IN THEIR DAD'S OFFICE? WHO'S GONNA DO
13 THAT?
14 HIDE YOUR PLAYBOY IN YOUR DAD'S OFFICE SO HE WON'T
15 FIND IT AND I WON'T GET IN TROUBLE. THAT'S WHAT THE DEFENSE IS
16 TELLING YOU HAPPENED IN THIS CASE. NEAL WESTERFIELD CREATED THE
17 PORN, LABELED IT, HID IT IN HIS DAD'S OFFICE. NO. HIS DAD DID
18 IT. AND ALL THE BLAME FROM THE DEFENSE COMES DOWN ON HIS OWN
19 FLESH AND BLOOD.
20 LET'S GET INTO THE REAL HEART OF THIS CASE, BECAUSE
21 THE HEART OF THE CASE IS NOT WHERE WERE THESE CRIMES COMMITTED.
22 THE HEART OF THIS CASE IS WHO DID 'EM. WHO'S RESPONSIBLE. WHO
23 WAS RESPONSIBLE FOR THESE HORRIBLE, EVIL CRIMES. THERE'S ONLY
24 ONE ANSWER. DAVID WESTERFIELD. ONLY ONE. THE MAN WHO'S BEEN
25 SITTING HERE IN COURT THROUGHOUT THIS TRIAL. HE'S THE ONE THAT
26 DID THESE CRIMES.
27 AS I APPROACHED THIS CASE AND HOW I WOULD -- HOW WE
28 WOULD PUT IT ON, WE HAD A PLAN AND THE PLAN IS FAIRLY SIMPLE.
9401
1 MAYBE YOU COULD SEE IT AS WE WENT ALONG. OUR FIRST TASK WAS TO
2 PROVE THE CRIMES WERE COMMITTED. OUR SECOND TASK OR OBJECTIVE
3 WAS TO PROVE WHO DIDN'T DO THE CRIME, AND THE BULK OF THE CASE
4 WAS TO PROVE WHO DID DO THE CRIME. THAT'S THE WAY THAT WE
5 PROGRESSED THROUGH THIS CASE. WE'VE ALREADY TALKED ABOUT WHO --
6 WHETHER OR NOT THESE CRIMES WERE COMMITTED. THE SECOND PHASE IS
7 WHO DIDN'T DO IT.
8 AND THERE ARE POTENTIAL SUSPECTS. THE FIRST AND
9 MOST OBVIOUS ARE DAMON AND BRENDA VAN DAM, OBVIOUS SUSPECTS FOR
10 KILLING THEIR CHILD. YOU HAVE TO CONSIDER THAT. YOU HAVE TO
11 LOOK AT THAT. BUT THEN YOU HAVE TO LOOK AT THE EVIDENCE, AND
12 YOU KNOW THAT THERE IS NO EVIDENCE TO SUPPORT THAT. NONE
13 WHATSOEVER. AND PERHAPS THERE'LL EVEN BE A CONCESSION, WHO
14 KNOWS. THEY DIDN'T KILL THEIR CHILD. THEY DIDN'T KILL YOUNG
15 DANIELLE. EITHER ONE OR THE OTHER OR BOTH. I'M ALMOST
16 EMBARRASSED TO TALK ABOUT IT, EVEN SUGGEST THE POSSIBILITY THAT
17 THEY WOULD HAVE KILLED THEIR CHILD, TAKEN HER TO DEHESA AND
18 DUMPED THIS SEVEN-YEAR-OLD CHILD NAKED IN THE DIRT LIKE TRASH
19 FOR ANIMALS TO DEVOUR. NO. THEY DIDN'T KILL YOUNG DANIELLE.
20 THEY DIDN'T STRIP HER NUDE AND TOSS HER OUT THERE AFTER THEY
21 WERE DONE WITH HER WITH NO BURIAL, NO DECENCY, NO NOTHING.
22 YOU LISTEN TO THAT 911 TAPE AND YOU KNOW BRENDA VAN
23 DAM DIDN'T KILL HER CHILD. YOU GO BACK TO THE FIRST WITNESS IN
24 THIS CASE. CAN YOU REMEMBER WHO IT WAS? JULIE HENNES, THE LADY
25 WHO LIVED ACROSS THE STREET, WHO WAS BRINGING HER KIDS OVER TO
26 THE VAN DAM HOME SO BRENDA VAN DAM COULD WATCH HER.
27 SHE TOLD US WHAT SHE SAW AFTER THE VAN DAM FAMILIAR
28 BECAME AWARE THAT DANIELLE WAS GONE, THAT SHE WAS MISSING. AND
9402
1 THE PANDEMONIUM BROKE LOOSE. SHE TOLD US THAT SHE SAW DAMON VAN
2 DAM ON THE CURB OUTSIDE THEIR HOME CRYING, CRYING OVER THE LOSS
3 OF HIS DAUGHTER. SOMEBODY TOOK MY BABY. SOMEBODY TOOK MY BABY
4 IS WHAT SHE HEARD DAMON VAN DAM SAY.
5 HE WAS THE ONE THAT WANTED TO MAKE SURE THE POLICE
6 DEPARTMENT HAD DONE ALL OF THEIR WORK INSIDE THE HOUSE BEFORE
7 THEY RETURNED. HE WAS THE ONE THAT GOT RID OF THOSE FRIENDS,
8 DO-GOODERS WHO WERE STARTING TO CLEAN UP ALL THE FINGERPRINT
9 POWDER UP AND DOWN THE STAIRWAY. STOP, STOP, THEY MAY WANT TO
10 COME BACK. PLEASE STOP. HE'S THE ONE THAT PUT THE BARRICADE ON
11 HER DOOR AND TOLD THEM TO CHECK FOR MORE PRINTS, CHECK THE
12 WINDOWS. SOMEBODY TOOK MY BABY.
13 AND YOU WATCHED THEM HERE IN COURT AS THEY
14 TESTIFIED ABOUT DANIELLE AND THEIR EMOTIONAL REACTION WHEN THEY
15 SAW HER BEDROOM PICTURES. THEY COULDN'T DO IT. THEY COULDN'T
16 DO IT. THEY DID NOT KILL YOUNG DANIELLE.
17 WHO IS THE NEXT POSSIBILITY? THE BUNCH AT DAD'S.
18 THIS NEFARIOUS GROUP FROM DAD'S, THE PEOPLE THAT THEY MET UP
19 WITH OVER THERE; DENISE KEMAL, RICH BRADY, KEITH STONE AND
20 BARBARA EASTON. MAYBE THOSE GUYS ARE POTENTIAL SUSPECTS. YEAH,
21 SURE, JUST AS LIKELY AS THE PARENTS.
22 ALTHOUGH, I ASK YOU TO GO BACK. WHEN YOU HEARD
23 OPENING STATEMENTS IN THIS CASE AND THE DESCRIPTIONS THAT WERE
24 GIVEN TO YOU REGARDING THE DOPE DEALING, THE DOPE TRANSACTIONS,
25 THE SELLING AND DEALING AND SMOKING AND USING, AND THIS DOPE
26 DEALER THAT WAS SUPPLYING THEM. IN YOUR MINDS DID YOU FORM AN
27 IMAGE OF WHAT RICH BRADY LOOKED LIKE, THIS DOPE DEALER? WERE
28 THEY SUCCESSFUL IN PLANTING AN IMAGE IN YOUR MIND? IF THEY
9403
1 WERE, WHAT HAPPENED WHEN YOU SAW HIM? IS HE THE SAME GUY THAT
2 HAD BEEN PLANTED OR CREATED? NO. NO. THESE ARE SUBURBAN
3 PEOPLE, WHICH PROBABLY DOESN'T MEAN ONE THING OR ANOTHER. NOT
4 ONE THING OR ANOTHER. BUT THEY ARE PEOPLE WHO KNEW THE VAN DAMS
5 AND, MORE IMPORTANTLY, KNEW DANIELLE. THEY KNEW HER. SHE WAS A
6 REAL PERSON TO THEM, NOT A THROW AWAY CHILD WHO I DON'T EVEN
7 KNOW THE NAME OF, NEVER EVEN SEEN BEFORE. SHE WAS A REAL PERSON
8 THAT THEY HAD BEEN AROUND, TALKED TO, INTERACTED WITH. THEY
9 DIDN'T DO THIS CRIME.
10 AND IN FACT, ALL OF THE TESTIMONY INDICATES THEY
11 LEFT THE HOUSE EMPTY HANDED. YOU'RE PROBABLY WONDERING WHY I
12 WAS BEING SO STUPID ASKING THOSE QUESTIONS. DID YOU HAVE A
13 LITTLE CHILD WHEN YOU LEFT THE HOUSE? LET'S GET IT OUT THERE.
14 THEY DIDN'T DO IT. TWO LADIES LEFT THE HOUSE TOGETHER. TWO
15 GUYS LEFT THE HOUSE TOGETHER. THEY DIDN'T DO THIS CRIME.
16 WHO IS THE NEXT POTENTIAL? WE'VE ALREADY MENTIONED
17 IT. NEAL WESTERFIELD. NEAL WESTERFIELD. HAD ANYONE, BEFORE HE
18 WAS CALLED, AFTER WE HEARD THE COMPUTER TESTIMONY ABOUT HOW HE
19 IS THE PERVERT LOOKING AT ALL THAT STUFF, HOW MANY THOUGHT I
20 WONDER IF HE'S THE ONE THAT DID THIS CRIME, AND MAYBE HIS DAD'S
21 JUST COVERING FOR HIM? WE KNOW THAT'S TRUE. THAT'S NOT TRUE
22 NOW. ACTUALLY, IT'S JUST THE OPPOSITE. JUST THE OPPOSITE. THE
23 DEFENDANT DID THE CRIME AND THE DEFENSE IS BLAMING NEAL AT LEAST
24 IN PART, ALTHOUGH THEY TRIED TO DISTANCE THEMSELVES FROM THAT.
25 DR. LAWSON, YOU'RE THE ONE THAT DECIDED WHAT
26 COMPUTER EVIDENCE TO LOOK AT. YOU MADE THOSE DECISIONS. WE
27 DIDN'T TELL YOU WHERE TO GO. WE DIDN'T FOCUS YOU. BUT THE
28 POINT IS CLEAR. SEE IF WE CAN GET SOMEBODY HOOKED ON NEAL. AND
9404
1 WE KNOW HE DIDN'T DO IT BECAUSE HE SAT HERE AND TOLD YOU HE
2 DIDN'T. AND WHEN YOU SAW HIM YOU KNOW HE DIDN'T DO IT. AND WE
3 HAD TO PUT HIM ON TO ESTABLISH THAT. AND WE PUT ON AN ALIBI FOR
4 HIM.
5 IN FACT, CITIZENS CAME FORWARD, SAID HE WAS WITH US
6 OR OUR HOUSE DOING COMPUTER STUFF. NEAL WESTERFIELD DIDN'T DO
7 IT. THAT LEAVES ONE LAST CATEGORY BEFORE WE GET TO THE BIG GUY.
8 THAT LAST CATEGORY IS ALMOST AN UNNAMED INDIVIDUAL. IT'S PRETTY
9 MUCH THE BOOGIE MAN. IT'S THE BOOGIE MAN. IT'S SOME UNKNOWN
10 GUY OUT THERE. SOME MYSTERY PERSON. HE MUST HAVE DONE IT.
11 GOD, PLEASE MAKE IT HIM, BECAUSE IF IT'S NOT HIM, WE KNOW WHERE
12 THE ARROWS GO.
13 AND PERHAPS WE'VE GOT SOME OF THAT LET'S MAKE UP
14 THE BOOGIE MAN HERE, TWO I GUESS POTENTIAL BOOGIE MEN AND WOMEN.
15 COULD BE CHEROKEE YOUNGS AND RYAN TYROL, I THINK WAS HIS LAST
16 NAME. HEY, THEY'RE PROBABLY THE GUYS. THEY GOT INVITED BACK TO
17 THE HOUSE. THEY PROBABLY WENT OVER THERE, SNEAKED OVER THERE,
18 SNEAKED IN THE HOUSE, WHOOP-DEE-DO, PARTIED WITH THESE FOLKS,
19 SEX, DRUGS AND ROCK AND ROLL, AND JUST OUT OF THE BLUE LET'S GO
20 GRAB A KID AND GO KILL HER. WE KNOW THAT'S NOT TRUE. WE KNOW
21 THAT DIDN'T HAPPEN. THEY SAID THEY DIDN'T GO OVER THERE.
22 NOBODY ELSE SAID ANYONE ELSE GOT INTO THAT HOUSE, THAT THEY WERE
23 AWARE OF.
24 AND I SUPPOSE WE TAKE FROM THAT TESTIMONY, WELL,
25 SHE WENT UP THERE INVITING THESE TWO, THEY PROBABLY INVITED
26 THESE TWO AND THESE TWO AND JEEZ, THEY DO IT ALL THE TIME. YOU
27 HAVE TO MAKE YOUR DECISION BASED UPON THE EVIDENCE THAT COMES IN
28 HERE, THE TESTIMONY THAT COMES IN. THE BOOGIE MAN DIDN'T DO
9405
1 THIS CRIME EITHER AS MUCH AS THEY WOULD LIKE YOU TO BELIEVE. HE
2 DIDN'T DO IT.
3 THAT LEAVES DAVID WESTERFIELD. THAT LEAVES DAVID
4 WESTERFIELD. AND FROM THE VERY BEGINNING YOU PROBABLY DIDN'T
5 WANT TO BELIEVE IT WAS TRUE. I WOULD SUGGEST I WOULD GUESS YOU
6 PROBABLY DIDN'T WANT TO BELIEVE THIS MAN DID THE CRIME BECAUSE
7 IN YOUR MIND YOU PROBABLY HAVE STEREOTYPES OF THE TYPE OF PEOPLE
8 THAT DO THIS. HE CERTAINLY DOESN'T MEET THOSE STEREOTYPES, IF
9 YOU HAVE THEM.
10 BUT ANOTHER REASON WHY YOU DON'T WANT TO BELIEVE IT
11 IS BECAUSE IT UPSETS, DESTROYS YOUR SENSE OF PROTECTION, YOUR
12 SENSE OF SAFETY. I CAN PROTECT MY OWN BECAUSE I CAN SPOT THE
13 BAD GUYS OUT THERE. LOOK WHAT WE HAVE HERE. NICE NEIGHBORHOOD.
14 NEW NEIGHBORHOOD. NICE POOL. INVITES THE NEIGHBORS OVER.
15 LET'S THEM USE IT. EMPLOYED. HAS A COUPLE OF KIDS OF HIS OWN.
16 LIVES DOWN THE STREET AND GIVES NO OUTWARD SIGNS OF THE DANGER.
17 IF HE IS THE GUY, THAT SHATTERS, THAT DESTROYS ALL
18 OF OUR SENSES OF PROTECTION. HOW CAN I PROTECT MY FAMILY IF I
19 CAN'T SPOT 'EM, IF I CAN'T SEE, IF THERE ARE NO SIGNS? HOW CAN
20 I PROTECT THEM? YOU CAN'T. AND THAT'S THE SCARY PART. HE DID
21 IT. HE LIVED TWO DOORS DOWN. TWO DOORS DOWN.
22 YOU LOOK AT THE EVIDENCE THAT WE HAVE HERE THAT
23 SHOWS THAT HE DID IT, AND IT WILL BE HIS CONDUCT, HIS OWN WORDS,
24 TODAY'S SCIENCE AND YOUR COMMON SENSE. COMBINE ALL OF THOSE AND
25 THE CONCLUSION IS INESCAPABLE.
26 HE HAD THE OPPORTUNITY TO DO THIS CRIME. HE
27 CERTAINLY DID. HE WAS BASICALLY UNACCOUNTED FOR FROM THE TIME
28 HE LEFT DAD'S UNTIL 8 O'CLOCK THE NEXT MORNING WHEN YOUNG
9406
1 11-YEAR-OLD HOLLY SAW HIM UP ON SKYRIDGE WHEN HE WENT UP TO PICK
2 UP HIS R. V. MOTOR HOME. HE WAS ON HIS OWN. NOBODY SAW HIM.
3 HE LIVES WITH NOBODY. HE'S ON HIS OWN. WE KNOW HE LEFT
4 DAD'S -- WELL, WE'RE NOT REAL SURE, APPARENTLY HE'S NOT REAL
5 SURE ON WHEN HE LEFT DAD'S. HE TOLD THE TV INTERVIEW HE LEFT
6 DAD'S FROM 10:00 TO 10:30. CHECK IT OUT. HE TOLD PAUL REDDEN
7 HE LEFT BETWEEN 10:30 AND 11:00. CHECK IT OUT. I'M NOT GONNA
8 QUIBBLE OVER A HALF HOUR. BIG DEAL. HIS BUDDIES DOWN AT DAD'S,
9 HIS DRINKING BUDDIES DOWN AT DAD'S PUT IT CLOSER TO MIDNIGHT.
10 WERE THEY PAYING ATTENTION? HARDLY.
11 WHEREVER YOU PUT THAT TIMEFRAME, THOUGH, HE HAD
12 SEVERAL HOURS ON HIS OWN AFTER DAD'S WHEN DAMON WENT TO BED
13 AROUND 11 O'CLOCK, TO GET TO THE HOUSE AND TO GET INSIDE. 11
14 O'CLOCK DAMON VAN DAM GOES TO BED, ABOUT, BALLPARK, ESTIMATION.
15 AND HE AWAKES, HE TOLD US, AT AROUND 1:45, AND HE BASICALLY
16 STAYS AWAKE WAITING FOR THE GANG TO COME HOME. THAT'S THE
17 PERIOD OF TIME WHEN HE GOT INTO THE HOUSE. HE GOT IN AFTER
18 DAMON VAN DAM WENT TO BED AND FELL ASLEEP AND HE WAS STILL THERE
19 WHEN THE GROUP COMES HOME FROM DAD'S.
20 WHAT KNOWLEDGE DID THE DEFENDANT HAVE THAT EVENING?
21 IN HIS MIND HE THOUGHT THERE WAS ONLY A BABY-SITTER AT THE
22 HOUSE. ONLY A BABY-SITTER. HE ORIGINALLY GOT THAT IDEA WHEN
23 DANIELLE'S MOTHER WENT OVER SELLING THE GIRL SCOUT COOKIES.
24 DAMON'S GOING TO GO SNOW BOARDING OR WHATEVER FOR THE WEEKEND.
25 I'LL TRY TO GET A BABY-SITTER AND MAYBE I'LL SHOW UP THERE AT
26 DAD'S.
27 HE TELLS US ON THE TAPES HE THOUGHT THERE WAS A
28 BABY-SITTER. OUT OF THE BLUE HE POPS OFF WITH THAT. THERE WAS
9407
1 NOBODY AT HIS HOUSE THAT HE HAD TO BE CONCERNED WITH. SON WAS
2 GONE. HE'S LIVING THERE ALONE. NOBODY TO MONITOR WHERE HE'S
3 COMING AND GOING. HE WORKS AT THAT HOUSE ALL DAY LONG
4 UNSUPERVISED. HE CAN COME AND GO AS HE WANTS DURING THE DAY.
5 HE CAN WALK THE NEIGHBORHOOD. HE CAN GET SOME EXERCISE, GO UP
6 AND DOWN THE STREET, KNOW WHO'S THERE, WHO'S NOT THERE, LOOK IN
7 WINDOWS, FROM THE SIDEWALK OF COURSE, GO OUT AT NIGHT. SOMEBODY
8 HAS THEIR LIGHTS ON. PERHAPS YOU WANDER THROUGH YOUR
9 NEIGHBORHOODS. WELL, LET'S WHAT THEIR LIVING ROOM LOOKS LIKE.
10 LET'S SEE HOW THEY'RE DECORATED. IF THE CURTAINS ARE OPEN YOU
11 CAN TAKE A PEAK. IT DOESN'T TAKE THAT MUCH. IT DOESN'T TAKE
12 THAT MUCH AT ALL.
13 HE TOLD PAUL REDDEN, YEAH, HE DIDN'T KNOW THE FLOOR
14 PLAN. IT WAS A DIFFERENT HOUSE BUT I SUPPOSE I COULD FIGURE IT
15 OUT IF I REALLY HAD TO. THEN THE SCARY PART. PAUL REDDEN'S
16 INTERVIEW. WE HEARD EARLIER ON THE TAPE WHERE HE TALKS ABOUT
17 THE "WE" ON HIS DESERT TRIP. BUT THE PART THAT JUMPS OUT, AT
18 LEAST TO ME AND MAYBE TO YOU, HE WAS ASKED A QUESTION, "HAVE YOU
19 EVER BEEN IN THE VAN DAM HOME?" REMEMBER HIS ANSWER? "I WAS
20 NEVER INVITED IN." NEVER INVITED IN. WHY NOT JUST GIVE A YES
21 OR NO? "I WAS NEVER INVITED IN."
22 PAUL REDDEN FOLLOWED IT UP LATER, YOU KNOW. TELL
23 ME THE TRUTH, YOU KNOW, GET OFF THE FENCE. "HAVE YOU EVER BEEN
24 IN?" "NOT THAT I KNOW." "NOT THAT I'M AWARE OF." WHY NOT JUST
25 SAY NO? IS HE TRYING TO TELL US SOMETHING? IS HE TRYING TO
26 WORK UP HIS NERVE AND DIDN'T HAVE IT? THAT'S THE SCARIEST PART.
27 NEVER BEEN INVITED IN. WHOA.
28 WE'VE GOT THIS AD, OBVIOUSLY A MAILER THAT SHOWED
9408
1 UP AT HIS HOUSE, YOU KNOW, FREE MAILER THAT GOES OUT TO
2 EVERYBODY IN THE WHOLE NEIGHBORHOOD. BIG DEAL. BUT WHY DOES HE
3 HAVE IT FOLDED, ACCORDING TO DETECTIVE TOMSOVIC, SO THAT IT'S
4 JUST SHOWING THE CANOPY BED? WHY IS THAT? MAYBE IT MEANS
5 NOTHING. MAYBE IT DOESN'T MEAN ANYTHING AT ALL. BUT WHY DOES
6 HE HAVE THAT? THAT COMES REAL CLOSE TO BEING DANIELLE'S BED
7 WITH THE CANOPY. IS HE GOING TO BUY IT FOR NEAL? THE DAUGHTER,
8 LISA, WHO DOESN'T SPEND MUCH TIME THERE, IT SOUNDS LIKE? WHY
9 DOES HE HAVE IT? I CAN SEE WHY YOU HAVE IT. YOU HAVEN'T THROWN
10 YOUR TRASH AWAY. WHY IS IT FOLDED TO THAT? WHOA. NEVER BEEN
11 INVITED IN.
12 THE COURT: COUNSEL, THIS MIGHT BE A GREAT TIME TO BREAK
13 FOR LUNCH.
14 ALL RIGHT. LADIES AND GENTLEMEN, WE'RE GOING TO
15 TAKE THE LUNCH BREAK. REMEMBER WE ARE GOING TO BE OFF JUST
16 UNTIL 1 O'CLOCK. PLEASE REMEMBER THE ADMONITION OF THE COURT
17 NOT TO DISCUSS ANY OF THE EVIDENCE OR TESTIMONY AMONG YOURSELVES
18 NOR WITH OTHERS, NOR FORM OR EXPRESS ANY OPINIONS ON THE MATTER
19 UNTIL IT IS SUBMITTED TO.
20 HAVE A PLEASANT LUNCH. WE'LL SEE YOU AT 1 O'CLOCK.
21 1 O'CLOCK.
22
23 (AT 11:55 A.M. THE NOON RECESS WAS
TAKEN UNTIL 1:00 P.M. OF THE SAME DAY.)
24
25 --O0O--
26
27
28
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