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Trial of David Westerfield, criminal defense trial San Diego California
Feldman: criminal defense lawyer
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TRIAL Day 29- august 7th 2002
Final closing arguments - Prosecutor Dusek - 1
9617
1 THE COURT: WELCOME BACK, LADIES AND GENTLEMEN.
2 ALL RIGHT. MR. DUSEK, YOUR CLOSING COMMENTS,
3 PLEASE.
4 MR. DUSEK: THANK YOU, YOUR HONOR.
5 I HARDLY KNOW WHERE TO START. AFTER HEARING WHAT
6 WE JUST HEARD I HARDLY KNOW WHERE TO START. YOU WERE TOLD TO
7 EXPECT A REBUTTAL AND YOU ARE CERTAINLY GOING TO GET A REBUTTAL,
8 WHEN YOUR GIVEN FALSEHOODS, MISREPRESENTATIONS, TOTALLY
9 DISTORTIONS THROUGHOUT THE ENTIRE CLOSING ARGUMENT.
10 WE ALL SAT THROUGH THIS TRIAL AND HEARD THE
11 EVIDENCE. WE ALL CAN READ OUR NOTES. WE ALL CAN READ THE
12 TRANSCRIPTS AND KNOW WHAT THE TRUTH IS. ALL OF US CAN DO THAT.
13 ALL OF US SHOULD DO THAT. ALL OF US HAVE NOT DONE THAT.
14 THERE'S ANOTHER POINT. ONE POINT, PROBABLY THE
15 ONLY ONE WHERE I WILL AGREE WE DO HAVE A MORAL PROBLEM WITH WHAT
16 HE DID TO THAT CHILD. WE ALSO HAVE A LEGAL PROBLEM WITH WHAT HE
17 DID TO THAT CHILD. THEY ARE THE SAME. THEY BOTH VIOLATE THE
18 LAW, MORALITY, ALL THAT IS RIGHT IN THIS WORLD. MAKE NO MISTAKE
19 ABOUT THAT. MORALITY AND LAW ARE ON THE SAME FOOTING HERE.
20 LET'S START WITH THE BUGS RIGHT NOW. THAT CHART IS
21 NOT RIGHT. THAT IS A MISREPRESENTATION OF WHAT THOSE PEOPLE
22 TALKED ABOUT, OF WHAT THEY SAID. IT'S SLICK. IT'S NICE. BUT
23 IT IS WRONG.
24 LEE GOFF, 9TH THROUGH THE 14TH OF FEBRUARY. I
25 DON'T THINK SO. LEE GOFF EXTENDED IT OUT HERE AT SINGING HILLS
26 TEMPERATURES FROM FEBRUARY 2ND THROUGH FEBRUARY 12TH, SINGING
27 HILLS. THAT'S GOT TO BE EXPANDED IF WE'RE GOING ON ALL THE
28 EVIDENCE, BOTH COMPUTATIONS AT BOTH TEMPERATURES AT SINGING
9618
1 HILLS THE BEST TEMPERATURE.
2 DR. HALL, IS THAT ACCURATE? THAT CERTAINLY MATCHES
3 THE LITTLE TIMEFRAME HE PUT IN HIS REPORT AND HE TRIED TO STICK
4 TO, THE FEBRUARY 12TH THROUGH 23RD. BUT WHEN WE SAW HIS
5 CALCULATIONS, IF YOU RECALL, HE'S THE ONE THAT HE SAID HE DID
6 NOT HAVE ENOUGH TIME TO MAKE THE CALCULATIONS ON, THAT LOWER
7 RIGHT-HAND CORNER. BALONEY, HE HAD ENOUGH TIME, HE HAD ENOUGH
8 TIME TO DO IT IF HE WANTED TO. HE'S ONE THAT TELLS US NINE DAYS
9 FROM THE BEGINNING TO THE END OF THIRD IN-STAR. HE SAYS THAT
10 TAKES US BACK TO THE FIRST PART OF FEBRUARY.
11 WE'RE STARTING TO GET SOME CONCORDANCE NOW? YES,
12 WE ARE. BUT YOU CAN'T LOOK AT JUST THAT. YOU HAVE TO LOOK
13 BEHIND THE NUMBERS. HOW DID YOU MAKE THE CALCULATIONS? HOW DID
14 YOU GET THERE? WHAT FACTORS DID YOU TAKE INTO CONSIDERATION?
15 THE DEFENSE SIMPLY WANTS GIVE ME A NUMBER AND I'M GONNA GO WITH
16 THAT.
17 PERHAPS SOME OF YOU FOLKS -- MOST EVERYBODY'S HAD
18 AN EXPERIENCE BUYING A CAR. I'VE GOT SO MUCH MONEY I'D LIKE TO
19 BUY A CAR THAT'S GOING TO BE BEST SUITED FOR ME. I'VE GOT
20 ENOUGH MONEY TO BUY A CAR THAT'S GOT OH, PROBABLY 50,000 MILES
21 ON IT. THAT'S PROBABLY THE BEST I CAN DO. LET ME SEE IF I CAN
22 FIND SOME CARS THAT HAVE 50,000 MILES ON THEM. ARE YOU GOING TO
23 BUY THE FIRST CAR WITH 50,000 ON IT THAT YOU SEE? NO. YOU WANT
24 TO GO BEHIND THE NUMBERS. YOU'RE GONNA WANT TO FIND OUT WHAT
25 KIND OF 50,000 MILES. AM I BUYING A CAB WITH 50,000 MILES
26 THAT'S BEEN GOING IN AND OUT OF THE CITY ALL DAY LONG, STOP AND
27 GO? AM I GONNA WANT TO BUY A CAR THAT'S BEEN DOING THE BAJA
28 500? AM I GONNA WANT TO BUY A CAR THAT'S 40-YEARS-OLD AND A
9619
1 LITTLE OLD LADY'S BEEN DRIVING IT BACK AND FORTH TO CHURCH?
2 THEY'RE NOT ALL THE SAME. THAT'S WHY I HAVE TO GO BEHIND THE
3 NUMBERS AND UNDERSTAND WHAT WAS GOING ON HERE.
4 DAVID FAULKNER WE KNEW CERTAINLY ASKED VERY LITTLE
5 ABOUT HIS COMPUTATION. THERE WAS ARGUMENT MADE HERE ABOUT WHO
6 HAD TO GO GET MORE WITNESSES AND D. A. HAD TO DO THIS AND D. A.
7 HAD TO DO THAT. BUT WHEN YOU LOOK AT IT, DAVID FAULKNER
8 CERTAINLY WAS CALLED OUT BY LAW ENFORCEMENT, MADE HIS
9 COMPUTATIONS, MADE HIS NUMBERS, TESTIFIED HERE. WE HAVE VERY
10 LITTLE UNDERSTANDING OF HOW HE GOT TO HIS NUMBERS. WE CERTAINLY
11 GOT MORE BETTER QUESTIONS ASKED TOWARDS THE END. BUT HE TOLD US
12 HEY, THAT'S JUST AN ESTIMATE. AND THAT'S A MINIMUM. I CAN'T
13 TELL YOU THAT'S WHEN BODY WAS THERE. HE SAID THAT'S WHEN THE
14 FLIES WERE THERE. HE ALSO TOLD US MAN, THEY'RE SUPPOSED TO BE
15 IN THE HEAD. THEY WEREN'T. UNDER NORMAL CIRCUMSTANCES, THEY
16 WEREN'T IN THE HEAD. I THOUGHT MAYBE SHE WAS COVERED. MAYBE HE
17 DIDN'T CONSIDER THE MUMMIFICATION ASPECT OF IT.
18 OBVIOUSLY, THE DEFENSE DIDN'T LIKE THAT TESTIMONY
19 AS THEY ACCUSE US OF NOT LIKING IT. HOW DO WE KNOW? NEIL
20 HASKELL COMES IN. LET'S SEE IF WE CAN BOLSTER IT. THEY'RE THE
21 ONES UPING THE ANTE HERE.
22 FAULKNER, HE'S A LOCAL GUY. TOLD US ABOUT HOW
23 THERE'S VERY FEW FLIES OUT THERE THIS YEAR AND ALL THE OTHER
24 FACTORS THAT HE WAS TALKING ABOUT. AND HE DIDN'T EVEN RAISE THE
25 MUMMIFICATION. HE DIDN'T EVEN APPARENTLY CONSIDER THAT FOR NO
26 FLIES ON THIS BODY EARLY ON.
27 NEIL HASKELL COMES IN, AND HE'S THE ONE THAT IS
28 COOKING THE BOOKS, JACKING UP THE TEMPERATURES THAT ARTIFICIALLY
9620
1 INFLATED MAGGOT MASS TEMPERATURES, SPEEDING THINGS ALONG SO
2 THOSE BUGS GET DEVELOPED A LOT FASTER. ARE YOU GOING TO BELIEVE
3 WHAT HE HAS TO SAY? THE WAY HE TESTIFIED? NO. NO, YOU CAN'T
4 DO THAT. HE JACKS UP THE TEMPERATURE IN THE MAGGOT MASS, JACKS
5 UP THE TEMPERATURE IN THE CRYPT, USES KAMAL'S 80 DEGREES. HE'S
6 DOING EVERYTHING HE CAN TO SPEED THAT PROCESS ALONG. AND HE
7 TELLS US FLIES ARE SUPPOSED TO GO TO THE HEAD FIRST. THEY
8 DIDN'T. WHAT HAPPENED? WHAT HAPPENED? WHAT WAS THE DELAY?
9 RODRIGUEZ TELLS US WHAT THE DELAY PROBLEM IS. THE
10 MUMMIFICATION.
11 WE GET TO LEE GOFF. AND WHEN YOU LOOK AT HIS
12 NUMBERS THEY GO BACK TO EARLY FEBRUARY. AGAIN, AN ESTIMATE. AN
13 ABSOLUTE ESTIMATE. MINIMUM EXPOSURE TO WHEN THE EGGS ARE LAID
14 ON THE BODY. AND HE'S THE ONE THAT STARTS EXPLAINING HEY, YOU
15 KNOW, EGGS ARE HERE IN THE STOMACH. SOMEBODY HAD TO GET TO THAT
16 BODY FIRST AND OPEN IT UP AND GIVE US A PLACE FOR THESE FLIES TO
17 GO. THEY CERTAINLY DIDN'T GO TO THE HEAD. EVERYONE WHO SAW THE
18 BODY TOLD YOU THAT. NO MAGGOT MASS THERE. NO INFESTATION. ONE
19 MAYBE IN AN EYEBALL. MAYBE ONE OR TWO AROUND THE MOUTH. BUT
20 NOT WHAT THESE PEOPLE WOULD EXPECT, THE MAGGOT MASS AFTER THIS
21 AMOUNT OF TIME.
22 SOMETHING WAS WRONG HERE. SOMETHING IS OUT OF THE
23 ORDINARY, AND WE KNOW IT'S THE WEATHER CONDITIONS AND THE DRYING
24 OF THIS YOUNG SMALL CHILD WHICH MADE HER UNATTRACTIVE UNTIL SHE
25 WAS OPENED UP, HE CONSIDERS FOR THE FIRST TIME, WE HEAR ABOUT
26 THE BEGINNING AND THE END OF THAT THIRD IN-STAR, AND YOU'VE GOT
27 TO MAKE YOUR CALCULATIONS BECAUSE OF THAT. AND CERTAINLY THEY
28 SHOULD HAVE BEEN DOING IT BECAUSE OF THE TEMPERATURES, I'M
9621
1 SORRY, BECAUSE OF THE LENGTH OF THOSE LITTLE GUYS.
2 HALL EVEN TELLS US THE SAME THING. HE MADE HIS
3 CALCULATIONS BEGINNING AND END OF THAT THIRD IN-STAR. WHERE HE
4 COMES UP WITH HIS 12 TO 23 DAY IT DOESN'T MATCH HIS COMPUTATIONS
5 ON ANY OF THEM. HOW COME THE BUGS WEREN'T IN THE HEAD? I DON'T
6 HAVE AN EXPLANATION FOR THAT. SURE, HE DID. HE DIDN'T WANT TO
7 GIVE IT TO YOU. EXPLANATION IS THE BODY WAS MUMMIFIED. IT WAS
8 UNATTRACTIVE.
9 IN FACT, WAS HE THE ONE THAT TOLD US YOU OUGHT TO
10 CONSULT THE PATHOLOGIST. LOOK AT THE MEDICAL DOCTORS. THEY'RE
11 LOOKING AT THESE BODIES ALL THE TIME. PERHAPS THEY CAN GIVE YOU
12 A BETTER RANGE, BETTER ESTIMATE. AND THE DOCTORS GO TO THE
13 ANTHROPOLOGIST WHEN THEY CAN'T MAKE THE DETERMINATION OR THEY
14 NEED ADDITIONAL HELP. THAT'S WHAT WE'RE TALKING ABOUT HERE.
15 THE DECAY PROCESS CHART THE DEFENSE UTILIZED,
16 EXHIBIT NO. 176, OKAY. THAT'S GREAT FOR A MIDWEST
17 DECOMPOSITION. SOMETHING THAT'S DECOMPOSING IN HUMID
18 CONDITIONS. WHEN THE BODY GOES THROUGH THAT MOISTURE PROCESS,
19 YOU KNOW, PUTRIFY, GET WET, GET GOOEY, AND THEN AT THE END OF
20 THE PROCESS IT STARTS TO DRY OUT ONCE YOU GET, OH, AT LEAST
21 ACCORDING TO THE CHART, WAY DOWN THE -- WAY DOWN THE ROUTE
22 THERE. WE HEARD FROM MULTIPLE INDIVIDUALS IN THIS FIELD. THERE
23 ARE TWO WAYS. MIDWEST HUMID DECOMPOSITION OR DRY AIRED
24 MUMMIFICATION PART OF DECOMPOSITION. TWO DIFFERENT TYPES. THIS
25 CHART IS MISLEADING. IT'S TOTALLY INAPPROPRIATE FOR WHAT WE
26 HAVE HERE IN SAN DIEGO IN THE SOUTHWEST WITH LOW HUMIDITY. THIS
27 DOESN'T DO IT. IF YOU FOLLOW THIS YOU WILL CERTAINLY GET
28 MISLED.
9622
1 YOU AGAIN HAVE TO LOOK AT ALL OF THE FACTORS WHEN
2 YOU'RE TRYING TO MAKE THAT DETERMINATION AND CONSIDER THAT THEY
3 ALL ARE PROVIDING ESTIMATES. THE ENTOMOLOGISTS ARE PROVIDING
4 ESTIMATES SIMPLY FROM THE EGG LIFE ON THE BODY. THAT'S ALL.
5 THAT IS ALL.
6 THE MEDICAL DOCTORS, THE ANTHROPOLOGISTS ARE
7 LOOKING AT THE BODY ITSELF. HOW LONG DOES IT TAKE THIS BODY TO
8 GET IN THIS CONDITION? DR. RODRIGUEZ IS NOT STUDYING MUMMIES.
9 HE'S NOT CRAWLING AROUND THE PYRAMIDS IN EGYPT OR IN THE ANDES.
10 HE'S LOOKING AT HUMAN BODIES NOW. YOU HEARD WHAT HE DID. DON'T
11 BE MISLED ABOUT WHAT HE REALLY DOES IN HIS LIFE. HE TALKED
12 ABOUT KOSOVO, DESERT STORM, PUTTING BODIES BACK TOGETHER AND THE
13 PIECES AND THE DECOMPOSITION AND AGING THOSE BODIES. THAT'S
14 WHAT HE DOES. THAT'S WHY HE IS IMPORTANT TO THE ESTIMATIONS, TO
15 THE CALCULATIONS, TO THE FACTS IN THIS CASE.
16 WE HAVE BASICALLY CERTAINLY NO IMPOSSIBILITY OF THE
17 BODY BEING OUT THERE AS YOU WERE PROMISED. NONE WHATSOEVER.
18 AND WE HAVE THE BEST EVIDENCE OF SHOWING WHY SHE WAS IN THE
19 CONDITION SHE WAS WHEN SHE WAS FOUND. THE BUGS CAN HELP US IN A
20 LIMITED TIMEFRAME. THEY CANNOT HELP US AND DIDN'T HELP US AND
21 WILL MISLEAD EVERYONE IF WE TRY TO MAKE THEM DO SOMETHING THAT
22 THEY'RE NOT HERE TO DO.
23 LET ME GO BACK TO THE BEGINNING OF THE OPENING OR
24 CLOSING BY DEFENSE COUNSEL. WHEN HE HAD THE CHARTS ON THE BOARD
25 ABOUT ALL THE RIGHTS AND OBLIGATIONS AND THOMAS JEFFERSON
26 EXPLAINING ABOUT THE EVILS OF THE TALIBAN. I'M NOT SURE IT WAS
27 BACK THERE AT THAT TIME, BUT MAYBE THERE'S SOME RELEVANCE THERE.
28 BUT WHAT HE WAS TALKING ABOUT, AND MAYBE YOU SAW WHAT HE WAS
9623
1 TRYING TO DO, WHAT HE WAS TRYING TO ACCOMPLISH, WHO HE WAS
2 LOOKING FOR, WHICH ONE OF YOU, HE WAS TALKING ABOUT ALMOST
3 ENCOURAGING A HUNG JURY. YOU DON'T HAVE TO LISTEN TO ANYBODY
4 ELSE. YOU DON'T HAVE TO CONSIDER ANYBODY ELSE. THE JUDGE SENDS
5 YOU BACK IN THE JURY ROOM, YOU DON'T HAVE TO CHANGE YOUR MIND.
6 YOUR RIGHTS. YOUR RIGHTS. HOLD YOUR GROUND.
7 CERTAINLY WE ARE ENTITLED TO EVERYONE'S INDIVIDUAL
8 OPINION. THAT IS RIGHT. THAT IS JUST. AND THAT IS AS IT
9 SHOULD BE. BUT EVERYONE SHOULD GO INTO THAT JURY ROOM WITH AN
10 OPEN MIND. AS WE ASKED QUESTIONS IN THE OPENING STATEMENT --
11 DURING JURY SELECTION, WILL YOU EXPRESS YOUR VIEWS TO EVERYBODY
12 ELSE? YES, I WILL. WILL YOU LISTEN, TRULY LISTEN WITH AN OPEN
13 MIND TO EVERYONE ELSE? ALL ASSURED US THAT YOU WOULD AND YOU
14 WILL. YOU HAVE TO IF WE'RE GOING TO REACH A UNANIMOUS VERDICT
15 IN THIS CASE. THAT IS WHY THE JURORS ARE SENT INTO A JURY ROOM
16 RATHER THAN EACH AND EVERY ONE OF YOU HEADING OFF TO A SEPARATE
17 POLLING BOOTH.
18 IF WE JUST WANT YOUR OPINION WITHOUT CONSIDERING
19 EVERYONE ELSE, YOU GO OVER THERE, PULL A LEVER, YOU GO TO THE
20 NEXT ONE, PULL A LEVER, AND RIGHT DOWN THE LINE. THERE IS
21 SUPPOSED TO BE GIVE AND TAKE WITH OPEN MINDS. I WANT TO HEAR
22 WHAT YOU HAVE TO SAY. PLEASE LISTEN TO WHAT I HAVE TO SAY.
23 THAT IS GOOD. WHAT IS REASONABLE. WHAT ISN'T. YOU WILL HAVE
24 TO MAKE THAT DETERMINATION BACK THERE, OBVIOUSLY. AND WHEN
25 YOU'RE MAKING THAT DETERMINATION OF WHAT IS REASONABLE AND WHAT
26 ISN'T, THERE ARE MANY WAYS TO LOOK AT THAT. ONE MIGHT BE ARE
27 THERE ANY FACTS TO SUPPORT THAT POSITION. I WOULD SUGGEST THAT
28 THAT IS PROBABLY A GOOD START.
9624
1 ONE OTHER WAY, WELL, HOW REASONABLE IS MY POSITION?
2 WELL, IF I'M STANDING IN A CROWD OF TEN, 20, 30 PEOPLE AND I'M
3 THE ONLY ONE HOLDING MY POSITION AND EVERYONE ELSE SAYS I DON'T
4 THINK SO, HOW REASONABLE IS MY POSITION? IF EVERYONE ELSE SEES
5 IT OTHERWISE, MAYBE I'M LOOKING AT THE WRONG FACTS. MAYBE I'M
6 BRINGING IN OUTSIDE INFLUENCES. MAYBE I'M MISSING THE BOAT
7 SOMEHOW.
8 KEEP AN OPEN MIND, LISTEN TO ALL THE EVIDENCE,
9 LISTEN TRULY TO WHAT EVERYONE ELSE HAS TO SAY. AS I THINK THE
10 COURT EXPLAINED, YOU FOLKS ARE NOT ADVOCATES. YOU'RE NOT
11 PARTISANS HERE. IMPARTIAL TRUTH FINDERS. THAT'S WHAT WE'RE
12 LOOKING FOR.
13 HE KEPT TALKING ABOUT CIRCUMSTANTIAL EVIDENCE AND
14 WHAT YOU HAVE TO FIND. TRULY, YOU RECEIVED THE INSTRUCTION ON
15 CIRCUMSTANTIAL EVIDENCE, AND MUCH OF THIS CASE IS CIRCUMSTANTIAL
16 EVIDENCE. THERE IS DIRECT EVIDENCE. THERE IS CIRCUMSTANTIAL
17 EVIDENCE. THERE IS STATEMENTS FROM THE DEFENDANT. THERE IS
18 SCIENTIFIC EVIDENCE. BUT LET'S GET TO THE CIRCUMSTANTIAL
19 EVIDENCE AND SEE IF WHAT HE WAS SAYING IT WAS IS TRULY ACCURATE.
20 AS I'VE HEARD HIM TALK, AND PERHAPS YOU ALSO
21 THOUGHT, IF THERE ARE REASONABLE INTERPRETATIONS OF EACH
22 SPECIFIC PIECE OF EVIDENCE, TWO REASONABLE INTERPRETATIONS OF
23 EACH FIBER, EACH BLOODSTAIN, EACH LIE, IF THERE ARE TWO
24 REASONABLE INTERPRETATIONS, HE TOLD YOU YOU HAD TO ACCEPT THE
25 ONE THAT LED TO NOT GUILTY.
26 WHAT YOU REALLY HAVE TO DO IS, FIRST OF ALL,
27 DETERMINE WHETHER OR NOT EACH OF THOSE INDIVIDUALS HAVE BEEN
28 PROVEN BEYOND A REASONABLE DOUBT. THE INSTRUCTIONS TELL YOU
9625
1 THAT. EACH FACT OR CIRCUMSTANCE UPON WHICH THE INFERENCE
2 NECESSARILY RESTS MUST BE PROVED BEYOND A REASONABLE DOUBT.
3 FIND ALL OF THE FACTS THAT ARE GOING TO LEAD TO THE ULTIMATE
4 INFERENCE. IS IT ESTABLISHED BEYOND A REASONABLE DOUBT. EACH
5 INDIVIDUAL FACT.
6 IT'S KIND OF LIKE -- KIND OF LIKE THIS ROPE IF WE
7 MAKE LIKE THIS IS THE ULTIMATE CIRCUMSTANTIAL EVIDENCE
8 INFERENCE. THE ROPE IS MADE UP OF MANY, MANY TWINES, JUST LIKE
9 THE ULTIMATE CONCLUSION IN THIS CASE IS MADE UP OF MANY, MANY
10 FACTS. IF ANY ONE OF YOU, AND YOU ALL GET TO MAKE THAT
11 INDIVIDUAL ASSESSMENT YOURSELF, ONE FACT, PICK ONE, DID HE LIE
12 ABOUT THE WALLET. USE THAT ONE FOR AN EXAMPLE. IF ALL OF YOU,
13 OR EACH INDIVIDUAL, IS CONVINCED BEYOND A REASONABLE DOUBT, YES,
14 THAT WAS A LIE, THAT CAN BE PART OF YOUR ROPE. IF THERE IS A
15 FACT THAT I'M NOT CONVINCED ON THAT ONE BEYOND A REASONABLE
16 DOUBT, YOU PULL THAT STRAND OUT AND GET RID OF THAT FACT. I'M
17 NOT GOING TO CONSIDER THAT BECAUSE IT'S NOT ESTABLISHED BEYOND A
18 REASONABLE DOUBT. EACH FACT LEADING TO THE INFERENCE, THE FINAL
19 CONCLUSION. SO WHAT YOU DO IS YOU PUT TOGETHER ALL OF THE FACTS
20 IN THIS CASE, AND THEN YOU DETERMINE WHETHER OR NOT THE ULTIMATE
21 CONCLUSION, THE ULTIMATE INFERENCE, ARE THERE TWO REASONABLE
22 INTERPRETATIONS, OR IS ONE REASONABLE AND ONE UNREASONABLE. YOU
23 DO NOT DO IT INDIVIDUALLY. SO YOU TAKE ALL THE FACTS THAT YOU
24 ARE CONVINCED BEYOND A REASONABLE DOUBT EXIST, AND THEN YOU MAKE
25 THAT DETERMINATION. DOES THAT ROPE STILL HOLD? IS THERE ONLY
26 ONE REASONABLE INFERENCE, ONE REASONABLE INTERPRETATION, ONE
27 REASONABLE CONCLUSION? AND YOU KNOW WHY THAT'S TRUE?
28 JUST AS AN EXAMPLE, DO YOU GUYS PLAY 21?
9626
1 BLACKJACK, OVER AT VEGAS? IF WE WERE TO GET A DECK OF CARDS AND
2 GO DOWN THE ROW HERE PLAYING 21, AND I'VE GOT THESE TWO GUYS ARE
3 GONNA WATCH AND MAKE AN ULTIMATE DECISION IN THIS CASE, ONE OF
4 THEM I SEND OUTSIDE THE ROOM, ONE OF 'EM I ALLOW TO SIT IN HERE
5 WHILE WE'RE PLAYING 21. HE GETS TO WATCH, HE DOESN'T. I WORK
6 MY WAY DOWN THE ROOM HERE. I PLAY ONE HAND OF 21. SHE PULLS A
7 19, I GET A 20. OH, I'M PRETTY LUCKY. SHE'S PRETTY UNLUCKY. I
8 GO DOWN TO THE NEXT PERSON, ANOTHER FACT. YOU DRAW AN 18, I GET
9 A 19. WHOOPS, YOU'RE UNLUCKY. I'M PRETTY LUCKY. NEXT HAND,
10 YOU GET A 20, I GET 21. AND I GO RIGHT DOWN THE LINE. EACH
11 TIME I BEAT YOU BY ONE. HOW DID I DO THAT? AM I LUCKY? ONE
12 INFERENCE, OR DID I CHEAT? YOU BRING THESE TWO FELLOWS INTO THE
13 ROOM. THE FELLOW WHO HAD TO SIT OUTSIDE AND HE SITS IN HERE AND
14 WATCHES THE LAST HAND, WELL, BAD LUCK. JUST A CHANCE. THE
15 INFERENCE IS I DIDN'T CHEAT. NO REASON TO THINK I DID. HE'S
16 ONLY LOOKING AT ONE FACT. THE OTHER INDIVIDUAL WHO SAT IN HERE
17 AND WATCHED ME WIN EVERY SINGLE HAND BY ONE CARD KNOWS I HAD TO
18 CHEAT. THAT'S WHY YOU HAVE TO LOOK AT ALL THE FACTS BEFORE YOU
19 MAKE THAT ULTIMATE DECISION. THEY DON'T WANT YOU TO DO THAT.
20 THEY DON'T WANT YOU TO DO THAT. THEY WANT YOU TO VIOLATE THE
21 LAW, NOT APPLY THE LAW AS IT IS WRITTEN, AS IT WAS INSTRUCTED,
22 AS YOU TOOK AN OATH TO FOLLOW.
23 AND WHEN WE START LOOKING AT CIRCUMSTANTIAL
24 EVIDENCE, ALL OF THE EVIDENCE IN THIS CASE, YOU KIND OF LOOK AT
25 WHAT'S REASONABLE AND WHAT ISN'T. WHAT ARE THE POSSIBILITIES OF
26 THAT REALLY HAPPENING IN MY COMMON SENSE?
27 PERHAPS THE COURT'S PADRES AND THE LOCAL CHARGERS
28 MIGHT BE AN EXAMPLE. HOW REASONABLE IS IT THAT THE PADRES ARE
9627
1 GOING TO GET INTO THE WORLD SERIES AND WIN THE WORLD SERIES THIS
2 YEAR? AND THE CHARGERS ARE GONNA GET IN THE SUPER BOWL AND WIN
3 THE SUPER BOWL THIS YEAR? IT'S POSSIBLE. IT'S NOT REASONABLE.
4 SORRY, GUYS. THE STATISTICS OF THAT, THE CHANCE OF THAT IS
5 VIRTUALLY NIL. YET THE POSSIBILITY OF THAT IS GREATER THAN ALL
6 OF THESE OTHER FACTORS COMING TOGETHER IN ONE CASE AND LEADING
7 US DOWN THE PATH OF NOT GUILTY. THE PADRES AND THE CHARGERS
8 HAVE A GREATER CHANCE THAN ALL OF THESE FACTS COMING TOGETHER AT
9 ONE TIME IN ONE PLACE.
10 THE COURT -- I'M SORRY -- COUNSEL TALKED ABOUT
11 PROOF BEYOND A REASONABLE DOUBT. AND SURELY WE HAVE TO PROVE
12 THIS CASE BEYOND A REASONABLE DOUBT, REASONABLE DOUBT, SUBJECT
13 TO REASON, BASED UPON FACTS, BASED UPON EVIDENCE, NOT BASED UPON
14 QUESTIONS, NOT BASED UPON MISREPRESENTATIONS, NOT BASED UPON
15 FANTASIES.
16 THE DEFENSE PUT UP ON THE BOARD AND DREW SOMETHING
17 REGARDING THE PROOF THAT HAS TO BE SHOWN, IF YOU RECALL, AT THE
18 TOP OF HIS CHART WAS PROOF BEYOND A REASONABLE DOUBT. BASICALLY
19 THAT WAS THE TOP OF THE MOUNTAIN AS HE CREATED THE VISUAL IMAGE
20 FOR YOU FOLKS. AND EVEN FROM THE INSTRUCTIONS THE COURT GAVE
21 YOU, YOU KNOW THAT IS NOT TRUE. YOU WORK YOUR WAY UP.
22 CERTAINLY AT THE BOTTOM, IF THERE IS NO EVIDENCE HE'S ENTITLED
23 TO A NOT GUILTY. ABSOLUTELY. WE ALL KNOW THAT. IF THERE IS
24 PREPONDERANCE OF THE EVIDENCE, THE OTHER EXAMPLE THE DEFENSE
25 USED WHERE THERE'S JUST SLIGHTLY MORE THAN HALF, THAT'S NOT GOOD
26 ENOUGH. THE DEFENSE WINS. IF THE EVIDENCE REACHES CLEAR AND
27 CONVINCING EVIDENCE, ANOTHER STANDARD THE DEFENSE USED, HE STILL
28 WINS. THAT'S A GIVEN. WE ALL KNOW THAT. EACH AND EVERY
9628
1 COURTROOM UP HERE WILL OPERATE ON THAT SAME PRINCIPLE.
2 IF I PROVE THIS CASE BEYOND A REASONABLE DOUBT HE'S
3 GUILTY, HE IS GUILTY. BUT THAT IS NOT THE TOP OF THE MOUNTAIN.
4 AS THE COURT INSTRUCTED YOU, AND YOU WILL RECEIVE IN YOUR JURY
5 ROOM, I DO NOT HAVE TO RISE TO THE LEVEL OF ELIMINATING ALL
6 POSSIBLE DOUBTS. I DON'T HAVE TO DO THAT. IN MOST CASES WE
7 CAN'T. THERE ARE IMAGINATIONS THAT CAN RUN WILD WITH CONSPIRACY
8 THEORIES, POSSIBILITIES. WHOA, I WONDER ABOUT THIS. I WONDER
9 ABOUT THAT. I DON'T HAVE TO PROVE THIS CASE BEYOND A POSSIBLE
10 DOUBT. THE INSTRUCTIONS TELL YOU I DO NOT HAVE TO PROVE THIS
11 BEYOND AN IMAGINARY DOUBT. AND AS WE SEE ON TV SO MANY TIMES, I
12 DO NOT HAVE TO PROVE THIS CASE BEYOND A SHADOW OF A DOUBT, JUST
13 BEYOND A REASONABLE DOUBT. AND WHEN WE GET THERE AND LOOK AT
14 ALL THE EVIDENCE, IT'S WAY ABOVE THAT STANDARD. IT'S WAY ABOVE
15 THAT STANDARD WHEN YOU LOOK AT ALL THE EVIDENCE.
16 PERHAPS NOW YOU CAN UNDERSTAND WHY SOME OF THE
17 QUESTIONS WERE ASKED DURING JURY SELECTION IN THIS CASE. SOME
18 OF THE QUESTIONS THAT EACH INDIVIDUAL WERE ASKED. CAN YOU MAKE
19 THE DECISION BASED UPON THE EVIDENCE THAT COMES FORWARD IN THIS
20 CASE? YOU ALL SAID YES, YES, YES, WHICH WE WOULD EXPECT YOU TO.
21 I THINK I THEN ASKED MANY OF YOU, PERHAPS SOME OF YOU EVEN
22 HEARD, OTHERS IF YOU WEREN'T ASKED DIRECTLY, DO YOU THINK YOU
23 CAN KEEP TRACK OF THE EVIDENCE COMING FROM THE WITNESS STAND AS
24 OPPOSED TO THE EVIDENCE OR STATEMENTS COMING FROM THE ATTORNEYS'
25 MOUTHS? QUESTIONS ARE NOT EVIDENCE. IF YOU RECALL, SOME OF YOU
26 MAY HAVE BEEN ASKED THAT OR SOME OF YOU MAY HAVE HEARD THAT WHEN
27 WE WERE ASKING THOSE QUESTIONS ABOUT WELL, ISN'T IT TRUE YOUR
28 MOM WORE ARMY BOOTS TO HER WEDDING? I THINK I USED THAT EXAMPLE
9629
1 ON MANY OF YOU. NOW SEE WHY? NOW YOU SEE WHY THOSE QUESTIONS
2 WERE ASKED? BECAUSE YOU PROBABLY DIDN'T KEEP TRACK IN YOUR
3 NOTES WHO ASKED WHAT AND WHAT WAS THE ANSWER, WHAT WAS THE
4 EVIDENCE. YOU GOT BELIEFS, IMAGES, CONCEPTIONS IN YOUR HEAD AND
5 YOU PROBABLY CAN'T TELL WHICH WAS NORMAL, WHICH WAS RELIED UPON.
6 IT'S THE TESTIMONY THAT IS IMPORTANT.
7 SECONDLY, WHAT THE ATTORNEYS SAY IS OBVIOUSLY NOT
8 EVIDENCE. PERHAPS THAT IS WHY THE COURT DIDN'T GIVE YOU YOUR
9 NOTEBOOKS DURING OPENING STATEMENT. BUT THERE WERE SOME
10 PROMISES MADE DURING OPENING STATEMENT THAT PROBABLY STUCK
11 AROUND, WHICH SCARE ME, BECAUSE PERHAPS YOU DON'T KNOW WHERE DID
12 I HEAR IT. WHO SAID IT. WAS IT PROVED OR WAS IT ATTORNEYS
13 TALKING?
14 IN THIS CASE A STATEMENT WAS MADE EARLY ON. "WE
15 DON'T SPECULATE. WE PROVE." "WE DON'T SPECULATE, WE PROVE."
16 AND WE'VE SEEN IT, JUST THE OPPOSITE IS TRUE. SEVERAL
17 STATEMENTS WERE MADE IN THIS CASE THAT HAVE BEEN CARRIED OVER
18 INTO CLOSING ARGUMENT. OPENING STATEMENT. "THE KIDS JUMPED UP
19 AND DOWN ON THE FURNITURE IN THE LIVING ROOM. JUMPED UP AND
20 DOWN ON OTHER BED SHEETS THAT WERE DOWNSTAIRS." THAT WAS SAID
21 IN THE OPENING STATEMENT. NOW IT WAS JUST SAID HERE IN THE
22 CLOSING STATEMENT. BUT IN BETWEEN THERE'S NO EVIDENCE.
23 AS MY DAD USED TO SAY, THAT'S A WHOLE LOT OF WIND
24 SAUCE AND AIR PUDDING. IT'S NOT THERE. THERE'S NO SUBSTANCE TO
25 IT.
26 BRENDA VAN DAM TOLD YOU HOW IMMACULATE THE
27 DOWNSTAIRS WAS, THAT THERE WEREN'T ANY CLOTHING DOWN THERE, NO
28 LAUNDRY, NO SHEETS, NO BED SHEETS TO BE JUMPING. YOU'RE BEING
9630
1 MISLED FROM THE GET GO, REAFFIRMED NOW HOPING YOU CONFUSE IT.
2 THERE WAS DISCUSSION, STATEMENTS MADE IN OPENING
3 STATEMENT REGARDING THE INABILITY TO DELINEATE THE ROOMS
4 UPSTAIRS. BASICALLY REPEATED NOW WITH A SLIGHT TWIST, YOU WERE
5 TOLD YOU DON'T KNOW WHOSE ROOM IT WHOSE.
6 WHAT ARE WE DOING UP THERE?
7 IS WHOSE, THANK YOU. EXCEPT YOU MIGHT BE ABLE TO
8 TELL THE MASTER BEDROOM. YOU CAN'T IDENTIFY THEM BY GENDER.
9 THAT THEME WAS CONTINUED NOW. BUT WHEN YOU LOOK AT THE PICTURES
10 YOU CAN TELL. THE LITTLE DECALS ON THE DOOR, YOU CAN TELL, AND
11 ALL YOU HAVE TO DO IS KIND OF STICK YOUR HEAD IN AND SEE PINK
12 AND BLUE.
13 MR. FELDMAN: YOUR HONOR, EXCUSE ME. I'M SORRY, BUT IT
14 DOES APPEAR THAT THE AUDIENCE IS ASSISTING MR. DUSEK IN CLOSING.
15 I JUST WONDER IF THE COURT COULD ADMONISH THE AUDIENCE.
16 THE COURT: ALL RIGHT.
17 YES, LADIES AND GENTLEMEN OF THE AUDIENCE. PLEASE
18 REMAIN SILENT.
19 GO AHEAD, MR. DUSEK.
20 MR. DUSEK: THE OPENING STATEMENT PROMISE, DECLARATION,
21 FACTS WEREN'T MET.
22 ANOTHER REPRESENTATION WAS MADE ABOUT THE
23 STATEMENTS THE DEFENDANT MADE TO LAW ENFORCEMENT. HE TOLD THEM
24 THE TRUTH AND HE GAVE 'EM PRECISE DETAILED INFORMATION WHICH WAS
25 LATER USED BY THE COPS TO PROVE THAT WHAT HE SAID WAS THE TRUTH.
26 YEAH, RIGHT. WHAT HE SAID WAS THE TRUTH. SURE. IT WAS PACKED
27 WITH LIES. THERE WAS TRUTH IN THEIR LAYING OUT HIS ALIBI, WHERE
28 HE WAS. YOU CAN FIND ME HERE, HERE AND HERE, BUT WHY HE WAS AT
9631
1 THOSE LOCATIONS? NO, NOT AT ALL. AND THEN HE LEFT OUT THE GOOD
2 STUFF, THE DRY CLEANERS, CLEANING THE S. U. V. HE DIDN'T TELL
3 'EM ABOUT OH, I TOLD SOME FOLKS I HAD A FLAT TIRE ON MY TRAILER
4 OUT AT GLAMIS. YEAH, RIGHT, HE WAS TELLING THE TRUTH. THE COPS
5 JUST FOLLOWED IT BLINDLY AND CONFIRMED EVERY LITTLE BIT. RIGHT.
6 THERE WAS DISCUSSION ABOUT THE R. V. AND THE ACCESS
7 ISSUE, HOW THE LITTLE KIDS COULD GET IN THE HOUSE. YOU WERE
8 MADE A PROMISE -- OR AT LEAST A STATEMENT WAS GIVEN TO YOU THAT
9 MAYBE YOU DIDN'T REMEMBER AND MAYBE YOU JUST KIND OF TAKE THE
10 STING OUT OF THE OPENING STATEMENT WE MADE.
11 THE STATEMENT WAS "AT THE END OF THE STREET IS A
12 PARK. AND AT THAT PARK THERE'S GOING TO BE EVIDENCE. THERE'S
13 GOING TO BE EVIDENCE, MR. WESTERFIELD WOULD PUT HIS MOTOR HOME.
14 THERE'S GOING TO BE EVIDENCE THAT THERE WERE PEOPLE INSIDE THE
15 MOTOR HOME DOWN AT THAT PARK." THERE WASN'T. NOT ONE BIT OF
16 EVIDENCE THAT ANYONE HAS BEEN INSIDE THAT MOTOR HOME. THERE WAS
17 EVIDENCE THAT ON ONE OCCASION THE MOTOR HOME WAS PARKED DOWN
18 THERE WHILE SOME SORT OF REPAIR OR ADDITION WAS DONE TO IT. I
19 THINK IT'S CHRISTINA GONZALES TALKED ABOUT A KID -- LITTLE CHILD
20 IN THE PARK. NOBODY HAS EVEN COME CLOSE TO FULFILLING THAT
21 PROMISE, THAT MISSTATEMENT, THAT ATTEMPT TO HOOK ONE JUROR.
22 THERE WERE OTHERS. SO THAT THE VAN DAMS, ACCORDING
23 TO DAMON, CAN SMOKE IN THE GARAGE. AND WE ARE NOT JUST TALKING
24 CIGARETTES AND CIGARS. THEY'LL SAY THAT, BUT POT, TOO, AND
25 DRINK AND ENGAGE IN, IN HIS WORDS, OTHER RISQUE BEHAVIORS.
26 WHAT'S THE PICTURE HE'S TRYING TO PLANT FROM THE VERY BEGINNING?
27 SEX AND DRUGS, RISQUE BEHAVIOR IN THE GARAGE. FEEDING OFF
28 WHATEVER MEDIA YOU FOLKS MAY HAVE SEEN BEFORE THIS CASE STARTED,
9632
1 PLAYING INTO THAT.
2 YOU SAW THE PICTURES OF THE GARAGE. WHOA, WHAT
3 KIND OF RISQUE BEHAVIOR OUT THERE? THEY WERE SMOKING OUT THERE.
4 WE KNOW THAT. BUT THERE WAS NO RISQUE BEHAVIOR. ANOTHER
5 PERSONAL ATTACK APPEALING TO HOPEFULLY PRECONCEIVED IDEAS, OR AT
6 LEAST RECEIVED INFORMATION REGARDING SEX AND CONTINUING THAT
7 LINE AS WE HAVE THROUGHOUT THIS CASE.
8 DO YOU RECALL THE RECEIPTS, THE GAS RECEIPTS THAT
9 COUNSEL TALKED ABOUT HERE IN CLOSING ARGUMENT? THESE WERE ALL
10 THE RECEIPTS THAT WERE FOUND IN THE DEFENDANT'S HOUSE, THE GAS
11 RECEIPTS FROM THE CHEVRON STATION. APPARENTLY TWO OF THEM ARE
12 FROM ONE DAY AND THREE OF THEM ARE FROM THE 2ND OF FEBRUARY.
13 AND HE STOOD HERE AND WENT ON ABOUT HOW WE HAVEN'T PROVED WHERE
14 THEY COME FROM, HOW THEY GOT THERE. WE HAVEN'T ESTABLISHED HOW
15 THEY GOT IN HIS HOUSE, THE DEFENDANT'S HOUSE. WE HAVE DROPPED
16 THE BALL, BUT IN HIS OPENING STATEMENT HE SAID HE WOULD PROVE
17 WHAT HAPPENED. THERE'S FIVE RECEIPTS. TWO OF THE RECEIPTS
18 IMPLICATE THE SAME GAS STATION AND GAS TANKS BEING FILLED UP
19 WITHIN ABOUT SEVEN MINUTES OF EACH OTHER. ONE IS FOR I THINK
20 64, $85, WHICH IS ABOUT THE COST OF THE MOTOR HOME. THE OTHER
21 RECEIPT'S FOR 12 BUCKS. THEY'RE NOT CONNECTED TO MR.
22 WESTERFIELD.
23 YOU MAY SEE EVIDENCE THAT HE HAS A HABIT OF
24 GRABBING THINGS AND MOVING THEM OUT OF THE WAY. YOU WERE
25 PROMISED HE WAS GONNA TELL YOU SOMEHOW HOW THIS EVIDENCE GOT
26 THERE. BASED UPON HIS HABIT AND CUSTOM, SOMEHOW FAMILY, FRIEND,
27 SOMEBODY COMING. OH, HE'S ALWAYS GRABBING STUFF AROUND THE GAS
28 STATION. YET HE TWISTS IT AND TURNS IT AND TRIES TO MAKE
9633
1 EFFECTIVE USE OUT OF IT IN CLOSING ARGUMENT BECAUSE WE COULDN'T
2 EXPLAIN HOW IT GOT IN HIS HOUSE. HE TOLD YOU EARLY ON HE HAD
3 SOME EXPLANATION FOR THAT. THAT'S THE TENOR, THAT'S THE TONE OF
4 THE DEFENSE CASE.
5 VIRTUALLY EVERY SINGLE PHOTO, IT'S ADULT WOMEN.
6 "WE DON'T SPECULATE. WE PROVE." RIGHT. THERE WERE PROBLEMS
7 EVEN WITH THE PRESENTATION OF THE EVIDENCE. "WE DON'T
8 SPECULATE. WE PROVE."
9 QUESTIONS REGARDING THE CELL SITES, ASKING SOMEONE
10 HERE WELL, IT CAN COME FROM A HUNDRED MILES AWAY. RIGHT, SURE,
11 BUT THEY'RE RIGHT ALONG THE DEFENDANT'S PATH WHERE HE WENT.
12 THEY DIDN'T COME FROM A HUNDRED MILES AWAY. THEY CAME FROM
13 RIGHT ALONG HIS PATH AT THE RIGHT TIME. GUESSING, SPECULATION,
14 MISLEADING, OH, IT COULD BE COMING FROM ANYWHERE. THEY ALSO
15 GIVE US A TIME LINE OF HIM GOING DOWN TO THE SOUTH BAY AREA.
16 DETECTIVE JOHNNY KEENE WAS ATTACKED WHEN HE SAID I
17 HAD GLOVES ON WHEN I WENT IN THAT HOUSE. IF YOU RECALL, HE'S
18 THE ONE THAT INITIALLY SPOKE WITH THE DEFENDANT OUT AT HIS
19 PORCH, AND HE WALKED THROUGH THE HOUSE AND HE AND DETECTIVE
20 PARGA I THINK SAID HE HAD THE GLOVES ON. AND THEY WERE
21 RIDICULED, ATTACKED BECAUSE IT'S NOT IN YOUR REPORT. IS YOUR
22 MEMORY BETTER NOW THAN IT WAS THEN? YOU WERE OBVIOUSLY A LIAR.
23 BUT THE PHOTOGRAPH SHOWS, IN FACT, HE DID HAVE HIS GLOVES ON,
24 AFTER WE GO THROUGH THAT MISLEADING CROSS-EXAMINATION. DON'T
25 BELIEVE HIM BECAUSE IT'S NOT IN YOUR REPORT.
26 OBVIOUSLY, THE BLOOD IN THE MOTOR HOME IS A PROBLEM
27 FOR THE DEFENSE. HOW DID IT GET THERE? WHEN DID IT GET THERE?
28 IF YOU RECALL, BRENDA VAN DAM TESTIFIED THAT DANIELLE GOT
9634
1 SCRATCHED ON HER BACK BY THE DOG. NO BLOOD. IT WAS THROUGH THE
2 SHIRT. SHE WAS PUTTING UP A FUSS AND SENT HER UPSTAIRS. AND I
3 THINK THIS WAS MR. BOYCE ASKING TIM HALL, THE POLICE OFFICER
4 THAT WAS IN THE WHEELCHAIR THAT TESTIFIED FROM DOWN HERE, HE
5 TRIED TO SWITCH THE FACTS ON YOU. NOT DOG SCRATCH ON THE BACK
6 BUT THE BLOODY LEG, BLOOD ON THE LEG. I OBJECTED. THE COURT
7 SUSTAINED IT. IT WAS NOT THE FACTS. THEY WERE MISSTATING THE
8 FACTS. THERE WAS NO BLOODY LEG.
9 MR. FELDMAN: OBJECTION, IMPROPER ARGUMENT.
10 THE COURT: OVERRULED.
11 MR. DUSEK: THERE WAS NO EVIDENCE ABOUT ANY BLOODY CUT ON
12 THE LEG.
13 IN FACT, THE WITNESS, MR. HALL SAID YOU KNOW,
14 THERE'S NOTHING IN MY REPORT ABOUT THAT AT ALL. WHERE DID YOU
15 GET THAT? WE HEARD RIGHT NOW THAT PEOPLE LEAVE HAIRS AT THE
16 RATE OF ONE HUNDRED HAIRS AN HOUR? WHERE DID THAT COME FROM?
17 IMAGINATION, DESPERATION, CERTAINLY NOT THE WITNESS STAND. IF
18 YOU'RE LOSING A HUNDRED HAIRS AN HOUR, WE'RE TALKING TELLY
19 SAVALAS BY THE END OF THE WEEK. AND WE KNOW THAT'S NOT TRUE.
20 FIFTY TO A HUNDRED MAYBE IN A DAY. HOW FAST ARE THEY COMING
21 OUT?
22 AND NOW THE BIG ONES. THE BIG ONES.
23 IT'S OUR FAULT. IT'S THE DA'S FAULT. THEY SHOULD
24 BE EMBARRASSED. THEY SHOULD BE DISGRACED FOR HAVING TO CALL
25 NEAL WESTERFIELD TO THE STAND TO CLEAR UP A CLEAR AN INTENTIONAL
26 MISREPRESENTATION OF THE FACTS IN THIS CASE.
27 IT'S OBVIOUS THE TESTIMONY THAT CAME IN REGARDING
28 THE MATERIALS THAT WERE FOUND IN THE DEFENDANT'S UPSTAIRS
9635
1 OFFICE. WE WERE TALKING ABOUT STUFF THAT WAS ON THE C. D.S AND
2 THE ZIP DISKS. THAT'S WHERE ALL OF THESE IMAGES CAME FROM.
3 THAT'S ALL WE'RE TALKING ABOUT.
4 AND JIM WATKINS TESTIFIED AS TO FINDING THE
5 MATERIAL, DOWNLOADING THE STUFF, TALKING ABOUT THE LABELING, THE
6 ORGANIZATION, THAT TYPE OF THING. AND WHERE IT CAME FROM.
7 THAT'S HOW WE LEFT IT. HIS MATERIAL, HIS HOUSE, HIS LABELS, HIS
8 COMPANY NAME ON IT.
9 THE DEFENSE THEN GOES AND GETS MARCUS LAWSON.
10 PERHAPS IT'S NOTEWORTHY THAT HE'S AN ATTORNEY. NOT PROUD, I
11 GUESS, BUT PERHAPS THAT HAS SOMETHING TO DO WITH IT. HE DOESN'T
12 TALK A GREAT DEAL ABOUT WHAT WAS ON THE ZIP DISK AND THE C. D.S.
13 NO, HE GOES BACK TO THE COMPUTERS. SO WHAT? WHO CARES WHAT
14 PEOPLE ARE USING THE COMPUTERS FOR? TELL ME ABOUT THESE THINGS
15 WE HAVE IN COURT. HE GOES THROUGH THERE AND COMES UP WITH A
16 NOTEBOOK FULL OF DATA THAT MAKES EVERYONE THINK THAT NEAL'S THE
17 PERVERT. NEAL IS THE ONE THAT'S RESPONSIBLE FOR ALL OF THIS
18 STUFF WE HAVE HERE IN COURT. WE HAVEN'T TOUCHED IT. WE HADN'T
19 TOUCHED NEAL. AND YOU HAVE TO REMEMBER THAT NEAL HAD GIVEN
20 STATEMENTS TO THE POLICE DEPARTMENT. HE TOLD THEM WHAT HE KNEW
21 ABOUT THE PORN HE TESTIFIED TO. HE TOLD US BASICALLY IN HIS
22 WORDS, YEAH, WHAT I'M SAYING HERE IS WHAT I TOLD THE COPS. THEY
23 KNEW IT.
24 AND MARCUS LAWSON KNEW IT BECAUSE HE HAD THE
25 REPORTS AND HE STILL COMPLETES HIS ANALYSIS. HE'S STILL CALLED
26 TO THE STAND AND HE STILL BURIES NEAL. WE LEARN ALSO THAT NEAL
27 WESTERFIELD HAD BEEN DOWN TO THE DEFENSE ATTORNEY'S OFFICES.
28 THAT'S FINE. THERE'S NOTHING WRONG WITH THAT. EACH ATTORNEY
9636
1 SHOULD BE ABLE TO TALK TO THE WITNESSES. YOU KNOW IF YOU'RE
2 GOING TO GO OFF AND SUE SOMEBODY, WOULDN'T YOU HOPE YOUR
3 ATTORNEY TALKS TO ALL THE WITNESSES? THERE'S NOTHING WRONG WITH
4 THAT. NOTHING WRONG WITH US DOING IT. NOTHING WRONG WITH THEM
5 DOING IT. BUT WHEN YOU DO IT, LISTEN TO WHAT THE PEOPLE SAY.
6 LISTEN TO WHAT THEY SAY, AND THEN THEY'LL COME INTO COURT AND
7 TRY TO CREATE SOMETHING ELSE. THAT'S THE QUALITY OF THE CASE
8 THE DEFENSE HAS PRESENTED.
9 NEAL WESTERFIELD, IF HE HAD NOT BEEN CALLED TO THE
10 STAND, WHOSE PICTURES WERE THEY? IF YOU 12 PEOPLE, 16 PEOPLE
11 HAVE TO DECIDE, GO BACK IN YOUR ROOM WITHOUT NEAL WESTERFIELD'S
12 TESTIMONY. CAN YOU IMAGINE WHAT THE CLOSING ARGUMENT WOULD HAVE
13 BEEN? IMAGINE THAT. WE HAD TO CLEAR THAT UP. IT STINGS THAT
14 HE HAD TO TESTIFY IN A TRIAL WHEN HIS DAD'S ON TRIAL. THAT
15 STINGS. THEY PLAYED THE HAND. KIND OF LIKE THE GUY DEALING 21.
16 IT STINGS.
17 AND THEY STILL TODAY BY GOING THROUGH THESE SCREEN
18 IMAGES, SCREEN SAVERS, SOMETHING LIKE THAT, THE NOTEBOOK WITH
19 ALL OF THOSE SCREEN THINGS SHOWING WHAT HE'S BEEN DOING, WHAT
20 HE'S BEEN NOT. THEY'RE STILL TRYING TO PUT THE HEAT ON NEAL.
21 THEY DENY IT. NOT MY FAULT. OH MAN, I'M NOT TRYING TO DO THAT,
22 BUT HEY, IT'S HIS. IF YOU'RE GOING TO DO IT, AT LEAST STEP
23 FORWARD AND SAY YEAH, I'M GOING TO BLAME HIM. IT WOULDN'T EVEN
24 DO THAT.
25 ALONG THE SAME LINES AS DR. HALL, CALLED TO THE
26 STAND ANOTHER LAWYER, MAYBE THERE'S SOME CONNECTION THERE. AND
27 HE DOESN'T MAKE THAT FINAL COMPUTATION. THAT LOWER RIGHT-HAND
28 CORNER. HE SAYS HE DIDN'T HAVE ENOUGH TIME. BALONEY. THAT'S
9637
1 NOT THE EXCUSE. WE'RE NOT SAYING ANYBODY'S RUSHED HERE OR IS
2 NOT RUSHED. HE HAD TIME TO DO EVERY OTHER ONE, EVERY OTHER
3 COMPUTATION. BUT THE ONE THAT BURIES HIS CLIENT, HE DIDN'T DO.
4 THE ONE THAT TOTALLY REFUTES WHAT, TWO WEEKS OF TESTIMONY, HE
5 DIDN'T DO AND HE BACKS AWAY FROM IT. JEEZ, MAYBE THEY WON'T
6 FIGURE THIS ONE OUT. MAYBE THEY'LL JUST LOOK AT THE NUMBERS ON
7 MY REPORT. MAYBE I CAN BLOW THIS ONE BY HIM. BUT HE COULDN'T.
8 THAT'S THE QUALITY OF THE CASE YOU GOT FROM THE DEFENSE.
9 WHAT'S THE SOURCE OF THE ORANGE FIBERS? DO YOU
10 KNOW? PROBABLY DON'T. FIRST OF ALL, NO ONE STOOD IN FRONT OF
11 THIS JURY, IN FRONT OF YOU PEOPLE AND SAID THAT THE D. A. WOULD
12 BE ABLE TO SHOW YOU THE SOURCE OF THOSE FIBERS. I DID NOT STAND
13 HERE AND TELL YOU THEY WERE COMING FROM AN AFGHAN. CAN YOU
14 IMAGINE THE STUPIDITY, THE INEXPERIENCE, THE EMBARRASSMENT OF
15 MAKING THAT STATEMENT NOT KNOWING IF IT WERE TRUE? THAT
16 STATEMENT WAS NOT MADE, CONTRARY TO WHAT YOU WERE TOLD.
17 MR. FELDMAN: OBJECTION, COUNSEL'S TESTIFYING, YOUR
18 HONOR.
19 THE COURT: OVERRULED.
20 MR. FELDMAN: THE RECORD SPEAKS FOR ITSELF, YOUR HONOR.
21 THE COURT: OVERRULED.
22 MR. DUSEK: BUT WE CAME REAL CLOSE TO LEARNING THE SOURCE
23 OF THOSE FIBERS. WE CAME REAL CLOSE.
24 IF YOU RECALL BACK WHEN THE BOARDS WERE PUT ON THE
25 BOARD CONCERNING THE YELLOW CLOTHING -- I'M SORRY -- THE ORANGE
26 CLOTHING, FROM THE DEFENSE ALL OF THE DOG HANDLERS, MO PARGA,
27 ALL OF THAT -- THOSE PICTURES, AND IF YOU RECALL WHEN THE BOYS
28 WERE PUT ON THE STAND AND THE WITNESS WAS ASKED TELL US ABOUT
9638
1 THESE BOARDS. WE HEARD HOW -- OR THESE ARE SHOWING HOW THE
2 PEOPLE DIDN'T HAVE THEIR GLOVES ON. THAT'S HOW IT CAME OUT ON
3 DIRECT. THESE PEOPLE DIDN'T HAVE ANY GLOVES ON. THEREFORE,
4 IT'S AN INDICATION OF CROSS-CONTAMINATION. WE'RE TOUCHING
5 THINGS AND THAT TYPE OF THING AND LEAVING FIBERS HERE AND THERE.
6 BUT AS WE LOOKED THROUGH THOSE BOARDS SITTING HERE WATCHING THE
7 EVIDENCE COME IN DID ANYONE SPOT IT WITH US? THAT'S NOT WHAT
8 THEY'RE TALKING ABOUT. THAT'S NOT WHAT THEY'RE TRYING TO PROVE
9 HERE. THEY'RE GIVING YOU A LITTLE BITTY VERSION. YEAH, YEAH,
10 THESE BOARDS SHOW NO FINGER -- NO GLOVES. HUH-UH, THEY'RE
11 SHOWING ORANGE SHIRTS IN ALL THESE PEOPLE. YOU WERE GOING TO
12 HEAR THAT'S THE SOURCE OF THE ORANGE FIBERS IN CLOTHING
13 ARGUMENT. IF IT HADN'T BEEN SPOTTED AND DISPROVED
14 SCIENTIFICALLY, YOU'RE GOING TO HEAR THE SOURCE OF THE ORANGE
15 FIBERS. THE POLICE DEPARTMENT, LAW ENFORCEMENT PLACED IT THERE.
16 LOOK AT ALL THESE ORANGE FIBERS. WHOOPS, IT'S SO BAD THAT
17 THEY'RE NOT EVEN ALL ORANGE.
18 SOMEHOW, MO PARGA, IT SURE COMES CLOSE TO LOOKING
19 RED ON THE BOARD -- ORANGE ON THE BOARD BUT IT'S RED IN REALITY.
20 THAT'S THE TYPE OF DEFENSE YOU'VE GOT. THAT WAS SNEAKY, THAT
21 WAS PRETTY SNEAKY.
22 WE'VE HEARD NOW IN CLOSING ARGUMENT THAT APPARENTLY
23 THERE'S SOME ORANGE ITEM AT THE RECOVERY SITE. LOOK AT THOSE
24 PICTURES. SEE IT HERE? MAYBE IT BLEW ONTO DANIELLE'S NECKLACE.
25 MAYBE IT BLEW OVER THERE. MAYBE IT BLEW BACK TO THE DEFENDANT'S
26 BED. MAYBE IT BLEW TO THE S. U. V.. MAYBE IT BLEW WHEREVER
27 THEY NEED IT TO BE. WE PROVE, WE DON'T SPECULATE. THAT'S WHAT
28 YOU WERE GIVEN. THIS IS PURE SPECULATION.
9639
1 YOU ALSO HEARD BRENDA VAN DAM'S SHIRT WAS ORANGE
2 EVEN THOUGH WE DON'T KNOW THE TYPE OF MATERIAL. THE LENGTH OF
3 THE INTERPRETATION, THE CHEMICAL MAKEUP OF THAT. OH, I THINK WE
4 HEARD IT WAS ORANGE ACRYLIC ON CLOSING ARGUMENTS. WHERE DID
5 THAT COME FROM? DESPERATION. WE NEED TO HAVE ORANGE SO WE CAN
6 EXPLAIN THESE TWO REASONABLE INTERPRETATIONS. BUT IT IS NOT
7 ORANGE. IT WAS RED. THE DEFENSE WITNESSES TESTIFIED IT WAS
8 RED.
9 PATTY LE PAGE, QUESTION FROM MR. FELDMAN WITH
10 REGARD TO BRENDA VAN DAM, DO YOU RECALL HOW SHE WAS DRESSED THAT
11 EVENING? SHE HAD A RED TOP THAT WAS MAYBE THREE QUARTER LENGTH
12 TO HERE OR TO HERE, SCOOP NECKED. IT WAS VERY -- IT WAS A VERY
13 RED TOP. AND SHE HAD BLOND HAIR. MR. FELDMAN, PATTY LE PAGE,
14 DEFENSE WITNESS, READ THE TRANSCRIPT. DON'T MISLEAD 12 JURORS
15 WHO ARE GOING TO TRY TO DO THEIR BEST TO REACH THE FACTS, THE
16 TRUTH IN THIS CASE.
17 CHEROKEE YOUNGS TESTIFIED. ANOTHER DEFENSE
18 WITNESS. QUESTION FROM MR. FELDMAN: WHAT WAS SHE WEARING? SHE
19 WAS WEARING A RED BLOUSE, RED TOP. RESPONSE FROM MR. FELDMAN:
20 I'M SORRY, A RED BLOUSE? WAS THERE ANYTHING NOTICEABLE ABOUT
21 IT? THEN SHE GOES ON, IT WAS RED AND LONG-SLEEVED AND IT WAS
22 FITTING. THE EVIDENCE IN FRONT OF THIS JURY IS THAT SHE WAS
23 WEARING RED, NOT ORANGE ACRYLIC. THAT IS HOW DESPERATE THE
24 DEFENSE IS. LET'S TRY THIS CASE ON THE FACTS, ON THE REALITIES,
25 ON THE TRUTH.
26 THE DEFENSE SAYS, YOU KNOW, WE'RE NOT PICKING ON
27 THE VAN DAMS. WE'RE NOT PICKING ON THEM. BUT THEN THEY PROCEED
28 TO JUMP RIGHT ON 'EM WITH BOTH FEET. IT'S THEIR LIFESTYLE,
9640
1 THEIR CHOICES. THEY CONTRIBUTED TO THE DEATH OF DANIELLE VAN
2 DAM. IF YOU KNOW HOW THE DEFENDANT PICKED THAT FAMILY, THAT
3 CHILD, MAYBE YOU CAN HONESTLY ANSWER THAT QUESTION, WHETHER OR
4 NOT WHAT THEY DID CONTRIBUTED TO IT. AND WHETHER THEY DID OR
5 NOT IS NOT OF CONCERN FOR YOU. IT MAY BE TO DISCUSS THIS CASE
6 AFTERWARDS. IT MAY BE TO OTHER INDIVIDUALS, TO THE MEDIA, TO
7 ANYONE ELSE, BUT IT HAS NOTHING TO DO WITH WHO COMMITTED THIS
8 CRIME. AND THAT'S WHY YOU FOLKS ARE HERE. WHAT THEY DID HAS NO
9 BEARING UNLESS YOU'RE SAYING THEY DID THE CRIME THEMSELVES.
10 THAT'S THE ONLY WAY. THAT'S THE ONLY WAY IT COMES IN FOR YOU 12
11 PEOPLE THAT ULTIMATELY MAKE THIS DECISION.
12 IF YOU'RE GOING TO ATTACK 'EM, JUST LIKE YOU DID
13 WITH NEAL WESTERFIELD, AT LEAST BE HONEST. STAND IN FRONT OF
14 YOU 12 PEOPLE AND SAY I'M TAKING THEM ON. NOW TRY TO SAVE
15 YOURSELF, NOT CREATE ANY ANIMOSITY, ANY BAD FEELINGS BETWEEN THE
16 JURY AND YOURSELF. TAKE THEM ON, BE HONEST, BE UP FRONT. AND
17 THEN EXPLAIN WHY WHAT THEY DID CAUSED HER TO BE KILLED AND THEN
18 HOW DOES THAT AFFECT WHO DID. IT DOESN'T. IT DOESN'T.
19 WE HAVE TOLD YOU MANY TIMES HERE ABOUT THIS BEING
20 AN ADVERSARIAL SYSTEM. I'M NOT SURE WHAT THAT MEANS. I'M NOT
21 SURE WHAT IT MEANS. I KNOW WHAT IT DOESN'T MEAN. IT DOESN'T
22 MEAN THAT YOU GET TO MISSTATE THE FACTS TO DEFEND YOUR CLIENT.
23 IT DOESN'T MEAN THAT. IT SHOULDN'T MEAN THAT. IT DOESN'T MEAN
24 YOU GET TO CREATE EVIDENCE WHEN YOU HAVE NO REAL EVIDENCE.
25 THAT'S NOT AN ADVERSARIAL SYSTEM. THAT SYSTEM STINKS. THAT'S
26 NOT WHAT WE'RE HERE FOR.
27 THE DEFENSE INDICATED THAT IT WAS THE DISTRICT
28 ATTORNEY'S OBLIGATION TO FIND EVIDENCE IN SUPPORT OF THEIR
9641
1 THEORY OF THE CRIME. BALONEY. THIS SYSTEM IS TO GET TO THE
2 TRUTH. BOTH SIDES SHOULD BE WORKING TOWARDS THAT. TO THE
3 TRUTH, WITH CREDIBLE EVIDENCE, NOT MISSTATEMENTS, NOT
4 EXAGGERATIONS, NOT DESPERATIONS.
5 THE DEFENDANT STATED THAT THERE WAS NO EVIDENCE OF
6 THE DEFENDANT IN THE VAN DAM HOME. OKAY. THERE WAS EVIDENCE OF
7 VAN DAM CARPET IN THE DEFENDANT'S MOTOR HOME. HOW DID IT GET
8 THERE? TWO WAYS. POSSIBLY ON FEET, ON SHOES. BUT AS I STOOD
9 HERE IN THE OPENING STATEMENTS, IT JUST DOESN'T MAKE SENSE, DOES
10 IT? SOMEONE WEARING SHOES, YOU GET SOME CARPET ON YOU, AND YOU
11 WALK ALL THOSE STEPS UNTIL YOU FINALLY GET IN THE R. V. AND SEEM
12 LIKE YOU'RE BOUND TO KICK IT OFF BY THEN. IT WOULD BE NICE TO
13 FOR ME TO STAND HERE AND SAY YEAH, HE GOT IT ON HIS OWN SHOES
14 WHEN HE GOT INTO THAT MOTOR HOME. BUT THE DEFENSE SUPPORTS
15 THAT. COMMON SENSE DOESN'T SUPPORT THAT.
16 I'M NOT GOING TO TRY TO SLIDE THAT ONE BY YOU. HOW
17 IT GOT THERE WAS FROM THE PAJAMAS, HUGGING THE DOG, IT ATTACHES
18 TO THE PAJAMAS, AND THEN HE COMES HOME IN THE MOTOR HOME. IS
19 THERE ANY EVIDENCE OF HIM IN THE VAN DAM HOME? OTHER THAN THAT
20 PET FIBER, THERE'S NOT. FIRST OF ALL, WE KNOW THAT JUST BECAUSE
21 THERE IS NO EVIDENCE OF YOU AT A LOCATION DIDN'T MEAN YOU
22 WEREN'T THERE. YOU CAN'T PROVE A NEGATIVE WITH THE LACK OF
23 EVIDENCE. LOGICALLY YOU CAN'T DO THAT.
24 WE KNOW WHY THERE WOULDN'T BE EVIDENCE YET. WHAT
25 WOULD YOU EXPECT TO FIND? FINGERPRINTS, IF HE TOUCHED SOMETHING
26 WITHOUT GLOVES THAT WAS RECEPTIVE TO IT, AT A LOCATION WHERE
27 THEY FOUND IT AND IT WASN'T CLEANED UP LATER. IT WASN'T PLACED
28 ON A SURFACE WHERE EITHER SOMEONE ELSE TOUCHED EITHER BEFORE OR
9642
1 AFTER YOU. YOU WALK THROUGH THAT DAY HIT THE HANDLE. THE NEXT
2 GUY GOES THROUGH THE DOOR HITS A HANDLE. WHO'S FINGERPRINT DO
3 WE HAVE THERE? WHY DID HE HAVE TO LEAVE A FINGERPRINT? WHY
4 DIDN'T HE USE GLOVES, ELBOW, A JACKET, ELBOW TO OPEN THE SLIDING
5 DOOR? THAT SLIDING DOOR HAD BEEN OBVIOUSLY USED SEVERAL TIMES.
6 BLOOD IN THE HOUSE? NO. BUT YOU NEED TO BE CUT TO
7 BLEED, DON'T YOU? HE WASN'T CUT. THERE IS NO INDICATION THAT
8 HE WAS CUT. SWEAT FROM THIS SWEATY GUY. ALTHOUGH HE APPARENTLY
9 SLEEPS WITH TWO AFGHANS IN THE MOTOR HOME, THIS GUY WHO,
10 ACCORDING TO FORMER GIRLFRIEND, SWEATS LIKE A SUMO WRESTLER IN A
11 SAUNA, OR MAYBE HE JUST DOES THAT WHEN LAW ENFORCEMENT IS ASKING
12 HIM QUESTIONS.
13 WHERE ARE YOU GOING TO FIND THE SWEAT IF HE DID
14 SWEAT? WHERE IS IT? WHERE DO YOU LOOK? YOU DON'T SEE SWEAT.
15 YOU DON'T FIND ANY BECAUSE HE DIDN'T DO ANYTHING IN THE HOUSE.
16 WHAT FIBERS ARE YOU GOING TO FIND? NOTHING. WHAT HAIRS ARE YOU
17 GONNA FIND? ABSOLUTELY GUARANTEED IF YOU'RE NOT WEARING A HAT,
18 WHICH HE CERTAINLY LIKES TO WEAR WE SAW FROM THE TV. YOU CAN
19 GET IN AND OUT OF THAT HOUSE WITHOUT EVEN LEAVING ANY SIGNS.
20 THE FOUR FOLKS FROM DAD'S SHOWED US THAT. THEY
21 DIDN'T LEAVE ANYTHING BEHIND. NO FINGERPRINTS. AND WE HAVE THE
22 REALITY THAT SOMEONE GOT INTO THAT ROOM AND GOT HER OUT.
23 SOMEBODY GOT IN AND GOT HER OUT WITHOUT HER AT LEAST MAKING ANY
24 NOISE. WHO KNOWS IF SHE WOKE UP OR NOT? BUT WITHOUT MAKING
25 ENOUGH NOISE TO WAKE UP THE FAMILY, THAT'S WHAT WE KNOW. AND
26 WITHOUT MAKING ANY DISTURBANCE THAT CAUSED THE DOG TO WAKE UP
27 THE FAMILY, THAT'S ALL WE KNOW. WHO KNOWS IF LAYLA WAS THERE
28 AND WAS FOLLOWING ALONG? THE FACT THAT THERE IS NO BLOOD, NO
9643
1 SEMEN, NO HAIR, NO PRINTS, NOTHING IN THE HOUSE, DOESN'T CHANGE
2 THE FACT THAT SHE WAS KIDNAPPING AND SHE WAS MURDERED BY THIS
3 DEFENDANT.
4 THE DEFENSE CREATES THEIR REASONABLE DOUBT ABOUT
5 THE FINGERPRINTS AT THIS HOUSE. A PRINT OUTSIDE THE DOOR ON THE
6 RIGHT HAND SIDE. I THINK WE LEARNED THAT THEY FOUND THAT PRINT
7 ON FEBRUARY 13TH, 14TH, WHEN JEFF GRAHAM WENT BACK LOOKING FOR
8 ADDITIONAL PRINTS, LOOKING FOR PRINTS FOR DANIELLE BECAUSE SHE
9 COULD HAVE KNOWN PRINTS TO MATCH UP. THEY FOUND A SMALL PRINT
10 THERE THAT COULD EITHER BE A YOUNG CHILD OR YOUNG ADULT. A
11 SMALL FRACTION OF A PRINT ON THE BANNISTER. COUNSEL GAVE THE
12 VISUAL DESCRIPTIONS ON THE BANNISTER. BUT, IN FACT, IT WAS THE
13 RIGHT HAND. HOW DID THAT GET THERE? AND IT WAS TURNED AT AN
14 ODD ANGLE. ALL THE PEOPLE IN AND OUT OF THAT HOUSE ARE
15 POTENTIALS. NOT ONLY ARE THEY POLICE OFFICERS THEY HAD KNOWNS
16 FROM, THE FAMILY MEMBERS THAT THEY HAD KNOWNS FROM, BUT EVERYONE
17 ELSE. IT DOESN'T PROVE ANYTHING.
18 WANT TO TAKE IT IN CONJUNCTION WITH EVERYTHING
19 ELSE. THE PRINTS OUT ON THE PATIO FURNITURE. WELL, MAYBE THE
20 KIDNAPPER SAT OUT THERE AND SAT AT THE TABLE AND PUT HIS HANDS
21 ON THAT TABLE OR CHAIR, WHATEVER IT WAS. UNLIKELY. THAT'S WHAT
22 HE WAS LOOKING FOR, SMALL PRINTS, AND THAT'S WHAT HE WAS TAKING,
23 THAT'S WHAT HE GOT. AND THE PRINT OUTSIDE THE SLIDING GLASS
24 DOOR, EASILY EXPLAIN. WHO KNOWS WHEN IT GOT THERE? WHO KNOWS
25 WHEN IT GOT THERE?
26 REPRESENTATIONS WERE MADE THAT THE VAN DAM HOUSE
27 WAS PITCH BLACK WHEN THE DEFENDANT CAME IN. I THINK WE HEARD
28 FROM BRENDA VAN DAM WHEN SHE CAME HOME THAT THE TV UNSTAIRS WAS
9644
1 ON SO YOU COULD SEE THE LIGHT FROM THAT. DID HE KNOW THE FLOOR
2 PLAN? HAD HE BEEN IN THE HOUSE BEFORE? NEVER BEEN INVITED IN.
3 NEVER BEEN INVITED IN. NOT TO MY KNOWLEDGE. THAT'S A WHOLE BIG
4 JUMP, I'VE NEVER BEEN THERE OR A SIMILAR HOUSE, A SIMILAR PLAN
5 IN THE NEIGHBORHOOD. SOMEONE ELSE, OBVIOUSLY, THE SAME PLAN
6 GOES AROUND THERE. IT'S A SMALL AREA WITH VARIOUS PLANS. ALL
7 YOU HAVE TO DO IS LOOK AT THE DOORS. ON THE DOOR A LITTLE BIT.
8 WHOOPS, I GOT A PINK ROOM HERE. WHAT DOES THAT TELL ME? AND WE
9 DON'T HAVE TOTAL PROOF HOW HE DID IT BECAUSE SO MANY OF THESE
10 CRIMES ARE DONE WITHOUT EYEWITNESSES.
11 MR. FELDMAN: OBJECTION, VOUCHING.
12 THE COURT: OVERRULED.
13 MR. DUSEK: SO MANY CRIMES YOU'RE LEFT WITHOUT ANY
14 EYEWITNESSES. MAYBE WE OUGHT TO SEND A DIRECTIVE DOWN TO THE
15 POLICE STATION. THEY SHOW UP AT A CRIME. TELL ME WHAT
16 HAPPENED, MA'AM. WHAT DID YOU SEE? WELL, I DIDN'T SEE
17 ANYTHING. I JUST CAME HOME AND, YOU KNOW, SOMEBODY BROKE INTO
18 MY HOUSE. MY STEREO'S GONE. DIDN'T SEE WHO DID IT? NO.
19 POLICE OFFICER TURNS AROUND AND HE GOES HOME. UNFORTUNATELY,
20 THAT HAPPENS MANY TIMES BECAUSE OF THE MANPOWER.
21 BUT THEY DIDN'T HAVE ANY EYEWITNESSES TO THE CRIME.
22 IS THAT WHAT THEY SHOULD DO? THEY SHOULD TURN AROUND AND GO
23 HOME? YOU DON'T HAVE ANY EYEWITNESSES. YOU DON'T HAVE DIRECT
24 EVIDENCE OF SOMEONE COMING INTO THIS HOUSE. GO HOME, WAIT FOR
25 ANOTHER CALL. OR, LIKE IN THIS CASE, DO YOU WANT THE POLICE
26 DEPARTMENT AND THE LAB TO THEN GO TO WORK AND DO WHAT THEY DO?
27 THEY CAN CHECK FOR PRINTS, CHECK FOR HAIR, CHECK FOR PHYSICAL
28 EVIDENCE, CHECK THE PAWN SHOPS, CHECK THE PLAZA. SEE IF YOU CAN
9645
1 PUT TOGETHER A CASE. IF WE ONLY WAIT FOR EYEWITNESSES. IF
2 CHIEF BEJERANO WAS DOING THAT, IF THAT'S WHAT HE TOLD HIS
3 PEOPLE, WE'D HAVE HIM OUT OF THERE IN A HEARTBEAT. YOU PROBABLY
4 WOULD SAVE SOME MONEY FOR A LAB, WE'RE NOT GOING TO BELIEVE OR
5 WORK ANY MORE IF YOU'RE NOT GOING TO BELIEVE OR ACCEPT WHAT YOU
6 DO.
7 DID I HEAR RIGHT THAT DANIELLE VAN DAM WAS KILLED
8 IN HER OWN BED? THE DEFENDANT SAID NOT GUILTY? DID WE HEAR
9 RIGHT THAT THAT'S HOW IT HAPPENED? FIRST OF ALL, IT DIDN'T
10 HAPPEN THAT WAY BECAUSE THERE IS NO SIGN, NO PHYSICAL EVIDENCE
11 OF THAT.
12 THEY STOOD HERE AND SAID THAT WAS OUR THEORY FOR
13 SOME CONVOLUTED MISSTATEMENT OF THE LAW, MISREPRESENTATIONS OF
14 LAW. THAT WAS OUR THEORY, THAT SHE WAS KILLED IN THE BED. NOT
15 ONCE, NOBODY BELIEVES AFTER HEARING ALL THIS EVIDENCE THAT SHE
16 WAS KILLED IN THAT BED. WHY DO YOU TAKE A DEAD CHILD OUT OF A
17 BED WHERE YOU JUST KILLED HER, AND THEN WALK TO WHEREVER YOU
18 HAVE TO WALK, AND THEN TAKE HER DOWN TO DEHESA AND TOSS HER
19 NAKED? THAT WAS NOT OUR THEORY. YOU WERE MISLED AGAIN. SHE
20 WAS TAKEN OUT OF THAT HOUSE ALIVE. SHE WAS IN THAT MOTOR HOME
21 ALIVE. SHE WAS IN HIS HOUSE ALIVE.
22 SPECULATION ABOUT THE BLOOD ON THE BEAN BAG CHAIR,
23 UNDERNEATH IT, IF YOU'LL RECALL, AND SOME BLOOD ON HER PAJAMA
24 CUFFS, NOT THE ONES SHE WAS WEARING THAT NIGHT. WE HEARD HOW
25 THE PAJAMAS SHE WAS WEARING THAT NIGHT WERE GONE. WERE GONE.
26 EXPLAIN THAT. THEY COULDN'T. WHY BLOOD FROM THAT NIGHT WOULD
27 BE ON A CHILD'S PAJAMAS LEFT IN THE BEDROOM. OBVIOUSLY IT WAS
28 FROM SOME OTHER INCIDENT, SOME OTHER TIME, MIXED WITH OTHER
9646
1 PERSON'S D. N. A. AND SUCH A SMALL AMOUNT.
2 RED HERRING WE HEARD. RED HERRING WE WERE HEARING.
3 MUCH LIKE THE CASING THAT WAS FOUND ON THE FLOOR. AN OLD
4 CASING. YOU CAN LOOK AT IT, A BEATEN UP ONE. IT'S BEEN AROUND
5 A WHILE, THAT IT'S BEEN SHOT SOMETIME BEFORE. SOMEHOW AFTER IT
6 GOT EXAMINATION BY THE PEOPLE AT THE LAB, AND THE SECOND
7 EXAMINATION BY THE PEOPLE AT THE LAB, SOMEBODY OBVIOUSLY BROUGHT
8 IT IN AND THEY DIDN'T KNOW THEY HAD IT. THEIR COPS, THEIR
9 PRINTS, SOMETHING, WHO KNOWS, IT HAD NOTHING TO DO WITH THIS
10 CASE.
11 WE HEARD ALLEGATIONS SHE SLEEP WALKS. DAMON IS
12 OUTSIDE LOOKING FOR HER BECAUSE SHE SLEEP WALKS. THE TESTIMONY
13 WAS SHE WAS DOWN BY THE BATHROOM DOING THE LITTLE PEE PEE DANCE.
14 WHEN DAMON WENT OUTSIDE HE KNEW HIS LITTLE GIRL WAS GONE. HE
15 HAD LOOKED EVERYWHERE THROUGHOUT THE HOUSE; UPSTAIRS,
16 DOWNSTAIRS, INSIDE, OUTSIDE. AND LET'S LOOK EVERYWHERE TO GO
17 FIND HER, EVEN THE HOT TUB OR THE JACUZZI. YOU'RE GOING TO GO
18 EVERYWHERE. SHE DIDN'T SLEEP WALK OUTSIDE. THERE'S NO EVIDENCE
19 OF THAT. SPECULATION, GUESSWORK, DESPERATION. LET ME HOOK A
20 JUROR. JUST ONE. LET ME JUST HOOK ONE.
21 THE WONDERFUL TRIP HE TOOK THROUGH THE DESERT,
22 WHICH I THINK WAS CHARACTERIZED AS A VACATION FOR THE DEFENDANT.
23 TOUGH WEEK, SO HE GOES OFF ON A VACATION THROUGH THE DESERT.
24 THIS WAS NOT A VACATION. THIS WAS A BUSINESS TRIP. THIS WAS
25 SERIOUS. THERE WAS A PURPOSE FOR THIS TRIP AND WE ALL KNOW WHAT
26 IT WAS. HE SAID ON TAPE IT WAS SPONTANEOUS.
27 ACCORDING TO THE TWO PEOPLE THAT HE INVITED ALONG
28 EARLIER IN THE WEEK, NEAL AND GLEN SEEBRUCH, WASN'T SPONTANEOUS.
9647
1 THEY HAD REJECTED IT. THEY CAME UP RIGHT NOW. I'VE GOT TO GET
2 OUT OF HERE. THIS IS NOT A FUN TRIP. THIS IS NOT LET'S GO
3 DRIVE THE DUNES. THIS WAS BUSINESS.
4 AND WHO CARES WHAT OTHER PEOPLE DO OUT IN THE
5 DESERT? WHO CARES WHAT HE DOES ON HIS REGULAR TRIPS TO THE
6 DESERT? THAT'S NOT WHAT'S AT ISSUE HERE, WHETHER OR NOT HE
7 TAKES HIS TOYS. AND WE KNOW HE DOESN'T TAKE HIS TOYS. WE KNOW
8 HE HAS THEM AND WE KNOW HE DOES NOT TAKE THEM.
9 WHAT'S IMPORTANT IS TO LOOK AT WHAT HAPPENED ON
10 THIS OCCASION AND HOW MANY TIMES HE WAS OUT OF STEP WITH WHAT HE
11 NORMALLY DOES. WHAT HE DOES WHEN IT'S A PLEASURE TRIP, WHEN
12 IT'S A VACATION, WHEN HE'S ENJOYING HIMSELF. EVERY SINGLE THING
13 WAS DIFFERENT. LINE THESE FACTS UP WHEN YOU'RE DETERMINING WHAT
14 IS REASONABLE AND WHAT ISN'T. LINE UP EVERY SINGLE ONE OF THOSE
15 FACTS WHERE HE WAS OUT OF CHARACTER. DON'T MAKE YOUR DECISION
16 AT THAT POINT. YOU STILL HAVE TO LINE UP THE PHYSICAL EVIDENCE.
17 HE DROVE TO THE STRAND TO SLEEP, OKAY. HE'S OUT
18 DRINKING, WAKES UP EARLY, GOES GETS HIS HUGE MOTOR HOME, DRIVES
19 TO THE STRAND TO SLEEP? HARDLY. THAT DOESN'T MAKE ANY SENSE.
20 WE KNOW THAT'S NOT TRUE. BUT THAT'S WHAT THEY'D HAVE YOU
21 BELIEVE. THAT'S WHY HE'S CLOSING THOSE CURTAINS. AND NO, IT'S
22 A CLOUDY AND WINDY DAY DOWN THERE. HE JUST GOES DOWN THERE TO
23 TAKE A LITTLE SIESTA. OH, HE'S GOING TO PAY TWO DAYS WORTH OF
24 FEES DOWN THERE. AND THAT'S NOT WHAT HE HAD DONE ON OTHER
25 OCCASIONS. YOU DON'T GO DOWN AND SPEND THAT KIND OF MONEY TO
26 SLEEP IN YOUR MOTOR HOME? COME ON. WHAT DID HE DO THIS TIME?
27 HE DIDN'T SLEEP. WHY DID HE CLOSE IT UP? WHY DID HE CLOSE UP
28 THAT THING? WHY DID HE TAKE SO MUCH TIME TO RESPOND TO THE
9648
1 RANGER WHO CAME KNOCKING AT THE DOOR? WHY DID HE WAIT AFTER
2 THEY FINISHED CONDUCTING BUSINESS? WAIT TILL THE RANGER LEFT
3 BEFORE HE TURNED AND WENT INSIDE, WHICH REQUIRED HIM TO OPEN THE
4 DOOR? SHE WAS THERE. SHE WAS THERE.
5 HE'S SUCH A GOOD GUY, NOT AFRAID OF LAW ENFORCEMENT
6 BECAUSE HE HASN'T DONE ANYTHING WRONG. LOOK AT, I CAN PROVE
7 THAT, BECAUSE HE PAID THE MONEY AND FILLED OUT HIS NAME AND HIS
8 ADDRESS OR WHATEVER ON THE FORM. THE HONESTY SYSTEM, THE TRUST
9 SYSTEM DOWN THERE. FIRST OF ALL, THAT PROVIDES YOU A PRETTY
10 GOOD ALIBI. SEE, OFFICERS, I WAS DOWN THERE. YOU CAN CHECK MY
11 FORM. OFFICER, WHAT HAPPENS IF YOU DON'T PAY AND YOU'RE SITTING
12 IN A SPOT? WHOOPS, LAW ENFORCEMENT'S GONNA COME GET YOU. HEY,
13 YOU'VE GOT A FORCED CONTACT BY LAW ENFORCEMENT. THAT'S WHY HE
14 PAID. THAT'S WHY HE GAVE HIS NAME. THAT'S WHY HE KEPT THE
15 RECEIPT FROM CONKLIN, THE RECEIPTS FROM THE GAS STATION. HE CAN
16 PROVE WHERE HE WENT.
17 AND LOOK AT WHERE HE TAKES YOU. UP NORTH. WAY
18 AWAY FROM DEHESA. HE CERTAINLY DIDN'T LEAVE THAT DRY CLEANERS
19 RECEIPT OUT ON HIS COUNTER. OH, BOY, I DON'T WANT LAW
20 ENFORCEMENT TO FIND THAT. I'LL LED THEM AWAY HERE. I'LL KEEP
21 THIS OTHER ONE SOMEPLACE ELSE. THERE WAS A MOTIVE, A REASON FOR
22 WHAT HE WAS DOING. WE HEARD SPECULATION OR ANALYSIS OF OUR
23 INFERENCE FROM DON RAYMOND, THE CAMP HOST, BECAUSE HE COULDN'T
24 IDENTIFY HIM WHEN SHOWN THE PICTURE OF MR. WESTERFIELD.
25 THEREFORE, HE IS LYING, FLAT OUT LYING ABOUT SEEING THE WALLET.
26 THAT HAS TO BE THE JUMP. ANOTHER PERSON WHO LIED TO HURT MR.
27 WESTERFIELD. THAT MAN, HE COULDN'T IDENTIFY HIM BUT WE KNOW IT
28 WAS HIM. WE KNOW IT WAS HIM. HE TOLD LAW ENFORCEMENT IT WAS
9649
1 HIM. RAYMOND TOLD US ABOUT THE ENCOUNTER THAT HE HAD, THE
2 EXCHANGE OF THE MONEY, GOING BACK AND FORTH. ANOTHER WILD GOOSE
3 CHASE.
4 THE DEFENSE WOULDN'T EVEN CONCEDE THAT THE
5 DEFENDANT HAD LIED AT ANY TIME. DID HE? HE CERTAINLY LIED
6 ABOUT DAMON VAN DAM. AND DAMON VAN DAM DID NOT PROVIDE THE
7 INFORMATION INITIALLY ABOUT THE MARIJUANA AND THE BED EPISODE.
8 HE WITHHELD INFORMATION. ALTHOUGH HE DID SAY EVERYONE THAT WAS
9 IN THE HOUSE. HE TOLD EVERYBODY THAT WAS THERE. THE DEFENDANT
10 WITHHELD INFORMATION ABOUT THE DRY CLEANERS, ABOUT THE S. U. V..
11 HE LIED ABOUT THE WALLET. HE LIED TO THE PEOPLE OUT AT GLAMIS
12 ABOUT HAVING A FLAT TIRE ON HIS TRAILER, HIS TRAILER THAT WAS
13 BACK IN SKYRIDGE. HE LIED ABOUT THAT. WHY? BECAUSE HE NEEDS A
14 REASON TO BE OUT THERE. YOU KNOW, I DIDN'T JUST COME OUT HERE
15 TO LOOK AT THE STARS. I WAS BRINGING THEM BACK HERE, I GOT A
16 FLAT, AND I'M SORRY.
17 THE COURT: COUNSEL, WE NEED TO TAKE THE AFTERNOON BREAK.
18 LADIES AND GENTLEMEN, BEFORE WE TAKE THE AFTERNOON
19 BREAK, I'VE RECEIVED A NOTE REGARDING THE INCREASED AMOUNT OF
20 EXPOSURE YOU FOLKS ARE APPARENTLY STARTING TO SENSE, EITHER AT
21 THE WORK PLACE OR IN SOCIAL GATHERINGS AND SO FORTH, BECAUSE OF
22 THE INCREASED AMOUNT OF CONVERSATION AMONG YOUR FRIENDS,
23 COLLEAGUES, FAMILY MEMBERS REGARDING THE CASE.
24 THE ONLY THING I CAN TELL YOU IS WHAT I HAVE BEEN
25 TELLING YOU ALL ALONG. YOU HAVE TO FIGURE OUT WAYS TO AVOID
26 PERSONALLY BECOMING INVOLVED IN THOSE CONVERSATIONS. THAT'S
27 NUMBER ONE. NUMBER TWO, YOU KNOW WHAT YOUR OBLIGATION IS, AND
28 YOUR OBLIGATION IS TO MAKE YOUR DECISION BASED ONLY ON WHAT YOU
9650
1 SEE AND HEAR IN THIS COURTROOM. SO OBVIOUSLY, ANYTHING THAT YOU
2 INADVERTENTLY OR ACCIDENTALLY OVERHEAR, A COLLEAGUE, AN
3 EMPLOYEE, OR BEFORE YOU CAN GET OUT OF RANGE OF THAT
4 CONVERSATION, IS STUFF THAT YOU'RE EASILY GOING TO BE ABLE TO
5 DISREGARD.
6 FOLKS, I HAVE A LOT OF FAITH IN YOU. I HAVE AN
7 ENORMOUS FAITH IN OUR SYSTEM AND OF THIS PARTICULAR GROUP.
8 YOU'VE TOLD ME, YOU SHOWED ME, YOU DON'T WANT YOUR LIVES
9 DISRUPTED. THE ONLY OTHER CHOICE I HAVE IS TO DISRUPT YOUR
10 LIVES TOTALLY AND PUT YOU IN ISOLATION. THAT BASICALLY IS THE
11 CHOICE I HAVE. I DON'T WANT TO EXERCISE THAT BECAUSE I DON'T
12 THINK YOU WANT THAT TO HAPPEN. AND THE ONLY WAY THAT THE SYSTEM
13 IS GOING TO WORK IS IF YOU ABIDE BY THE COURT'S ORDER. AND WHEN
14 YOU ARE CONFRONTED WITH A SITUATION WHERE YOU KNOW THE CASE IS
15 BEING DISCUSSED, DO YOUR BEST TO AVOID IT, AND WHAT YOU HEAR
16 DISREGARD. THAT IS THE ONLY CHOICE I HAVE RIGHT NOW. AND
17 UNLESS SOMETHING GETS REALLY, REALLY WORSE, OR IS REPORTED TO
18 ME, I DON'T WANT TO BASICALLY ISOLATE YOU FROM YOUR FAMILIES
19 WHILE YOU'RE DELIBERATING. I BELIEVE IN YOU, YOU HAVE TO ABIDE
20 BY THE ORDERS I HAVE SET IN ORDER TO MAKE THIS WORK, AND I'M
21 GOING TO ASSUME YOU'RE DOING THAT.
22 PLEASE REMEMBER THE ADMONITION OF THE COURT NOT TO
23 DISCUSS ANY OF THE EVIDENCE OR TESTIMONY AMONG YOURSELVES NOR
24 WITH ANY OTHER PERSONS, NOR FORM OR EXPRESS ANY OPINIONS ON THE
25 MATTER UNTIL IT IS SUBMITTED TO YOU.
26 HOPE SPRINGS ETERNAL. MAYBE WE CAN BEAT CINCINNATI
27 TONIGHT. WE'LL SEE YOU AT 9 O'CLOCK TOMORROW MORNING. 9:00
28 A.M. TOMORROW.
9651
1 (AT 4:34 P.M. THE JURY WAS EXCUSED
AND THE FOLLOWING PROCEEDINGS WERE HAD:)
2
3 THE COURT: THE RECORD SHOULD REFLECT THAT THE JURY AND
4 ALTERNATES HAVE LEFT THE COURTROOM. JUST ONE PRACTICAL MATTER
5 BEFORE I CLOSE THE COURTROOM ON A SECURITY ISSUE.
6 IT APPEARS, IS THIS CORRECT, THAT THE FIBER SLIDES
7 WILL BE RETURNED FRIDAY. IS THAT A PROBLEM FOR ANYBODY? I
8 HAVEN'T --
9 MR. FELDMAN: IT'S CORRECT. WE'LL HAVE THEM RETURNED BY
10 FRIDAY. WE'LL TRY TO GET THEM SOONER, I'M SORRY.
11 THE COURT: THOSE ARE EXHIBITS 167 AND 168.
12 AT THIS TIME THE COURT HAS SECURITY ISSUES TO
13 DISCUSS WITH COUNSEL. THE COURTROOM WILL BE CLOSED TO THE
14 PUBLIC AND MEDIA.
15
16
17 (THE COURTROOM IS CLEARED OF SPECTATORS AT 4:35 P.M.)
18
19
20
21
22 (SEALED PROCEEDINGS FOLLOW THIS DATE, PAGES 9652 THROUGH
23 9657, BOUND IN SEPARATE VOLUME 43A. UNSEALED PROCEEDINGS
24 CONTINUE ON PAGE 9658. NOTHING OMITTED.)
25
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