04092 – September 4th 2002 – penalty phase – David Westerfield trial – morning 2

SAN DIEGO, CALIFORNIA, WEDNESDAY, SEPTEMBER 4, 2002, (morning 2)


Penalty phase September 4TH 2002


Jury instructions


1 THE COURT: OKAY. WELCOME BACK, LADIES AND GENTLEMEN.
2 ONCE AGAIN, AS I REMINDED YOU WHEN I READ YOU
3 INSTRUCTIONS DEALING WITH THE GUILT PHASE, I JUST WANT TO REMIND
4 YOU THAT YOU WILL HAVE A COPY OF THESE INSTRUCTIONS IN THE JURY
5 ROOM TO REFER TO DURING DELIBERATIONS IN CASE WHEN I READ THEM
6 THE FIRST TIME THROUGH YOU DON’T GRASP ALL THAT WE HAVE TO SAY.
7
LADIES AND GENTLEMEN OF THE JURY, THE DEFENDANT IN
8 THIS CASE HAS BEEN FOUND GUILTY OF MURDER IN THE FIRST-DEGREE.
9 THE ALLEGATION THAT THE MURDER WAS COMMITTED UNDER A SPECIAL
10 CIRCUMSTANCE HAS BEEN SPECIALLY FOUND TO BE TRUE. IT IS THE LAW
11 OF THIS STATE THAT THE PENALTY FOR A DEFENDANT FOUND GUILTY OF
12 MURDER OF THE FIRST-DEGREE SHALL BE DEATH OR IMPRISONMENT IN THE
13 STATE PRISON FOR LIFE WITHOUT POSSIBILITY OF PAROLE IN ANY CASE
14 IN WHICH THE SPECIAL CIRCUMSTANCE ALLEGED IN THIS CASE HAS BEEN
15 SPECIALLY FOUND TO BE TRUE. UNDER THE LAW OF THIS STATE YOU
16 MUST NOW DETERMINE WHICH OF THESE PENALTIES SHALL BE IMPOSED ON
17 THE DEFENDANT.
18 YOU WILL NOW BE INSTRUCTED AS TO ALL OF THE LAW
19 THAT APPLIES TO THE PENALTY PHASE OF THIS TRIAL. YOU MUST
20 DETERMINE WHAT THE FACTS ARE FROM THE EVIDENCE RECEIVED DURING
21 THE ENTIRE TRIAL UNLESS YOU ARE INSTRUCTED OTHERWISE. YOU MUST
22 ACCEPT AND FOLLOW THE LAW AS I STATE IT TO YOU. DISREGARD ALL
23 INSTRUCTIONS GIVEN TO YOU IN OTHER PHASES OF THIS TRIAL.
24
YOU MUST NEITHER BE INFLUENCED BY BIAS NOR
25 PREJUDICE AGAINST THE DEFENDANT NOR SWAYED BY PUBLIC OPINION OR
26 PUBLIC FEELINGS. BOTH THE PEOPLE AND THE DEFENDANT HAVE A RIGHT
27 TO EXPECT THAT YOU WILL CONSIDER ALL OF THE EVIDENCE, FOLLOW THE
28 LAW, EXERCISE YOUR DISCRETION CONSCIENTIOUSLY AND REACH A JUST

10486

1 VERDICT.
2 IF ANY RULE, DIRECTION OR IDEA IS REPEATED OR
3 STATED IN DIFFERENT WAYS IN THESE INSTRUCTIONS, NO EMPHASIS IS
4 INTENDED AND YOU MUST NOT DRAW ANY INFERENCE BECAUSE OF ITS
5 REPETITION. DO NOT SINGLE OUT ANY PARTICULAR SENTENCE OR ANY
6 INDIVIDUAL POINT OR INSTRUCTION AND IGNORE THE OTHERS. CONSIDER
7 THE INSTRUCTIONS AS A WHOLE AND EACH IN LIGHT OF ALL OF THE
8 OTHERS. THE ORDER IN WHICH THESE INSTRUCTIONS ARE GIVEN HAS NO
9 SIGNIFICANCE AS TO THEIR RELATIVE IMPORTANCE.
10 STATEMENTS MADE BY THE ATTORNEYS DURING THIS TRIAL
11 ARE NOT EVIDENCE. IF AN OBJECTION WAS SUSTAINED TO A QUESTION,
12 DO NOT GUESS WHAT THE ANSWER MIGHT HAVE BEEN. DO NOT SPECULATE
13 AS TO THE REASON FOR THE OBJECTION. DO NOT ASSUME TO BE TRUE
14 ANY INSINUATION SUGGESTED BY A QUESTION THAT HAS BEEN ASKED A
15 WITNESS. A QUESTION IS NOT EVIDENCE AND MAY BE CONSIDERED ONLY
16 AS IT HELPS YOU TO UNDERSTAND THE ANSWER. DO NOT CONSIDER FOR
17 ANY PURPOSE ANY OFFER OF EVIDENCE THAT WAS REJECTED OR ANY
18 EVIDENCE THAT WAS STRICKEN BY THE COURT. TREAT IT AS THOUGH YOU
19 HAD NEVER HEARD OF IT. YOU MUST DECIDE ALL QUESTIONS OF FACT IN
20 THIS CASE FROM THE EVIDENCE RECEIVED IN THIS TRIAL AND NOT FROM
21 ANY OTHER SOURCE.
22 WHEN A WITNESS HAS TESTIFIED THROUGH A CERTIFIED
23 SIGN LANGUAGE INTERPRETER, YOU MUST ACCEPT THE ENGLISH
24 INTERPRETATION OF THAT TESTIMONY EVEN IF YOU WOULD HAVE
25 TRANSLATED THE SIGN LANGUAGE DIFFERENTLY.
26 YOU MUST NOT INDEPENDENTLY INVESTIGATE THE FACTS OR
27 THE LAW OR CONSIDER OR DISCUSS FACTS AS TO WHICH THERE IS NO
28 EVIDENCE. THIS MEANS, FOR EXAMPLE, THAT YOU MUST NOT ON YOUR

10487

1 OWN VISIT THE SCENE, CONDUCT EXPERIMENTS OR CONSULT REFERENCE
2 WORKS OR PERSONS FOR ADDITIONAL INFORMATION. YOU MUST NOT
3 DISCUSS THIS CASE WITH ANY OTHER PERSON EXCEPT A FELLOW JUROR
4 AND THEN ONLY AFTER THE CASE IS SUBMITTED TO YOU FOR YOUR
5 DECISION AND ONLY WHEN ALL 12 JURORS ARE PRESENT IN THE JURY
6 ROOM.
7
EVIDENCE CONSISTS OF THE TESTIMONY OF WITNESSES,
8 WRITINGS, MATERIAL OBJECTS OR ANYTHING PRESENTED TO THE SENSES
9 AND OFFERED TO PROVE THE EXISTENCE OR THE NONEXISTENCE OF A
10 FACT. EVIDENCE IS EITHER DIRECT OR CIRCUMSTANTIAL. DIRECT
11 EVIDENCE IS EVIDENCE THAT DIRECTLY PROVES A FACT. IT IS
12 EVIDENCE WHICH, BY ITSELF, IF FOUND TO BE TRUE, ESTABLISHES THAT
13 FACT.
14
CIRCUMSTANTIAL EVIDENCE IS EVIDENCE THAT, IF FOUND
15 TO BE TRUE, PROVES A FACT FROM WHICH AN INFERENCE OF THE
16 EXISTENCE OF ANOTHER FACT MAY BE DRAWN. AN INFERENCE IS A
17 DEDUCTION OF FACT THAT MAY LOGICALLY AND REASONABLY BE DRAWN
18 FROM ANOTHER FACT OR GROUP OF FACTS ESTABLISHED BY THE EVIDENCE.
19 IT IS NOT NECESSARY THAT FACTS BE PROVED BY DIRECT
20 EVIDENCE. THEY MAY BE PROVED ALSO BY CIRCUMSTANTIAL EVIDENCE OR
21 BY A COMBINATION OF DIRECT AND CIRCUMSTANTIAL EVIDENCE. BOTH
22 DIRECT AND CIRCUMSTANTIAL EVIDENCE ARE ACCEPTABLE AS A MEANS OF
23 PROOF. NEITHER IS ENTITLED TO ANY GREATER WEIGHT THAN THE
24 OTHER. HOWEVER, A FINDING BEYOND A REASONABLE DOUBT AS TO ANY
25 CRIME ALLEGED IN THIS PENALTY PHASE MAY NOT BE BASED ON
26 CIRCUMSTANTIAL EVIDENCE, UNLESS THE PROVED CIRCUMSTANCES ARE NOT
27 ONLY; ONE, CONSISTENT WITH THE THEORY THAT THE DEFENDANT
28 COMMITTED THE CRIME BUT; TWO, CANNOT BE RECONCILED WITH ANY

10488
1 OTHER RATIONAL CONCLUSION.
2 FURTHER, EACH FACT WHICH IS ESSENTIAL TO COMPLETE A
3 SET OF CIRCUMSTANCES NECESSARY TO ESTABLISH THAT THE DEFENDANT
4 COMMITTED THE CRIME MUST BE PROVED BEYOND A REASONABLE DOUBT.
5 IN OTHER WORDS, BEFORE AN INFERENCE ESSENTIAL TO
6 ESTABLISH THAT HE COMMITTED THE CRIME MAY BE FOUND TO HAVE BEEN
7 PROVED BEYOND A REASONABLE DOUBT, EACH FACT OR CIRCUMSTANCE UPON
8 WHICH THE INFERENCE NECESSARILY RESTS MUST BE PROVED BEYOND A
9 REASONABLE DOUBT.
10
ALSO, IF THE CIRCUMSTANTIAL EVIDENCE PERMITS TWO
11 REASONABLE INTERPRETATIONS; ONE OF WHICH POINTS TO THE
12 DEFENDANT’S COMMITTING THE CRIME, AND THE OTHER TO HIS NOT
13 COMMITTING THE CRIME, YOU MUST ADOPT THAT INTERPRETATION WHICH
14 POINTS TO THE DEFENDANT’S NOT COMMITTING THE CRIME AND REJECT
15 THAT INTERPRETATION WHICH POINTS TO HIS COMMITTING THE CRIME.
16
IF, ON THE OTHER HAND, ONE INTERPRETATION OF THIS
17 EVIDENCE APPEARS TO YOU TO BE REASONABLE AND THE OTHER
18 INTERPRETATION TO BE UNREASONABLE, YOU MUST ACCEPT THE
19 REASONABLE INTERPRETATION AND REJECT THE UNREASONABLE.
20
EVIDENCE THAT AT SOME OTHER TIME A WITNESS MADE A
21 STATEMENT OR STATEMENTS THAT IS OR ARE INCONSISTENT OR
22 CONSISTENT WITH HIS OR HER TESTIMONY IN THIS TRIAL MAY BE
23 CONSIDERED BY YOU, NOT ONLY FOR THE PURPOSE OF TESTING THE
24 CREDIBILITY OF THE WITNESS, BUT ALSO AS EVIDENCE OF THE TRUTH OF
25 THE FACTS AS STATED BY THE WITNESS ON THAT FORMER OCCASION.
26
IF YOU DISBELIEVE A WITNESS’ TESTIMONY THAT HE OR
27 SHE NO LONGER REMEMBERS A CERTAIN EVENT, THAT TESTIMONY IS
28 INCONSISTENT WITH A PRIOR STATEMENT OR STATEMENTS BY HIM OR HER

10489

1 DESCRIBING THAT EVENT.
2 EVERY PERSON WHO TESTIFIES UNDER OATH IS A WITNESS.
3 YOU ARE THE SOLE JUDGES OF THE BELIEVABILITY OF A WITNESS AND
4 THE WEIGHT TO BE GIVEN THE TESTIMONY OF EACH WITNESS.
5 IN DETERMINING THE BELIEVABILITY OF A WITNESS YOU
6 MAY CONSIDER ANYTHING THAT HAS A TENDENCY TO PROVE OR DISPROVE
7 THE TRUTHFULNESS OF THE TESTIMONY OF THE WITNESS, INCLUDING, BUT
8 NOT LIMITED TO, ANY OF THE FOLLOWING:
9
THE EXTENT OF THE OPPORTUNITY OR ABILITY OF THE
10 WITNESS TO SEE OR HEAR OR OTHERWISE BECOME AWARE OF ANY MATTER
11 ABOUT WHICH THE WITNESS HAS TESTIFIED;
12 THE ABILITY OF THE WITNESS TO REMEMBER OR TO
13 COMMUNICATE ANY MATTER ABOUT WHICH THE WITNESS HAS TESTIFIED;
14
THE CHARACTER AND THE QUALITY OF THAT TESTIMONY;
15 THE DEMEANOR AND THE MANNER OF THE WITNESS WHILE
16 TESTIFYING;
17
THE EXISTENCE OR NONEXISTENCE OF A BIAS, INTEREST
18 OR OTHER MOTIVE;
19
THE EXISTENCE OR NONEXISTENCE OF ANY FACT TESTIFIED
20 TO BY THE WITNESS;
21 THE ATTITUDE OF THE WITNESS TOWARD THIS ACTION OR
22 TOWARD THE GIVING OF TESTIMONY;
23 A STATEMENT PREVIOUSLY MADE BY THE WITNESS THAT IS
24 CONSISTENT OR INCONSISTENT WITH HIS OR HER TESTIMONY AND;
25 FINALLY, AN ADMISSION BY THE WITNESS OF AN
26 UNTRUTHFULNESS.
27
IN DETERMINING WHICH PENALTY IS TO BE IMPOSED ON
28 THE DEFENDANT YOU SHALL CONSIDER ALL OF THE EVIDENCE WHICH HAS

10490

1 BEEN RECEIVED DURING ANY PART OF THE TRIAL OF THIS CASE EXCEPT
2 AS YOU MAY HEREAFTER BE INSTRUCTED. YOU SHALL CONSIDER, TAKE
3 INTO ACCOUNT AND BE GUIDING — BE GUIDED BY THE FOLLOWING
4 FACTORS IF YOU FIND THEM TO BE APPLICABLE:
5 A. THE CIRCUMSTANCES OF THE CRIME OF WHICH THE
6 DEFENDANT WAS CONVICTED IN THE PRESENT PROCEEDING AND THE
7 EXISTENCE OF ANY SPECIAL CIRCUMSTANCE FOUND TO BE TRUE;
8 B. THE PRESENCE OR ABSENCE OF CRIMINAL ACTIVITY BY
9 THE DEFENDANT OTHER THAN THE CRIMES FOR WHICH THE DEFENDANT HAS
10 BEEN TRIED IN THE PRESENT PROCEEDINGS WHICH INVOLVE THE USE OR
11 ATTEMPTED USE OF FORCE OR VIOLENCE, OR THE EXPRESS OR IMPLIED
12 THREAT TO USE FORCE OR VIOLENCE;
13 C. THE PRESENCE OR ABSENCE OF ANY PRIOR FELONY
14 CONVICTION OTHER THAN THE CRIME FOR WHICH THE DEFENDANT HAS BEEN
15 TRIED IN THE PRESENT PROCEEDINGS;
16
D. WHETHER OR NOT THE OFFENSE WAS COMMITTED WHILE
17 THE DEFENDANT WAS UNDER THE INFLUENCE OF EXTREME MENTAL OR
18 EMOTIONAL DISTURBANCE;

19
E. WHETHER OR NOT THE VICTIM WAS A PARTICIPANT IN
20 THE DEFENDANT’S HOMICIDAL CONDUCT OR CONSENTED TO THE HOMICIDAL
21 ACT;
22 F. WHETHER OR NOT THE OFFENSE WAS COMMITTED UNDER
23 CIRCUMSTANCES WHICH THE DEFENDANT REASONABLY BELIEVED TO BE A
24 MORAL JUSTIFICATION OR EXTENUATION FOR HIS CONDUCT;
25 G. WHETHER OR NOT THE DEFENDANT ACTED UNDER
26 EXTREME DURESS OR UNDER THE SUBSTANTIAL DOMINATION OF ANOTHER
27 PERSON;
28 H. WHETHER OR NOT AT THE TIME OF THE OFFENSE THE

10491
1 CAPACITY OF THE DEFENDANT TO APPRECIATE THE CRIMINALITY OF HIS
2 CONDUCT OR TO CONFORM HIS CONDUCT TO THE REQUIREMENTS OF THE LAW
3 WAS IMPAIRED AS A RESULT OF MENTAL DISEASE OR DEFECT OR THE
4 EFFECTS OF INTOXICATION;
5 I. THE AGE OF THE DEFENDANT AT THE TIME OF THE
6 CRIME;
7
J. WHETHER OR NOT THE DEFENDANT WAS AN ACCOMPLICE
8 TO THE OFFENSE AND HIS PARTICIPATION IN THE COMMISSION OF THE
9 OFFENSE WAS RELATIVELY MINOR AND;
10
K. ANY OTHER CIRCUMSTANCE WHICH EXTENUATES THE
11 GRAVITY OF THE CRIME, EVEN THOUGH IT IS NOT A LEGAL EXCUSE FOR
12 THE CRIME, AND ANY SYMPATHETIC OR OTHER ASPECT OF THE
13 DEFENDANT’S CHARACTER OR RECORD THAT THE DEFENDANT OFFERS AS A
14 BASIS FOR A SENTENCE LESS THAN DEATH, WHETHER OR NOT RELATED TO
15 THE OFFENSE FOR WHICH HE IS ON TRIAL.
16
YOU MUST DISREGARD ANY JURY INSTRUCTION GIVEN TO
17 YOU IN THE GUILT OR INNOCENCE PHASE OF THIS TRIAL WHICH
18 CONFLICTS WITH THIS PRINCIPLE. SYMPATHY FOR THE FAMILY OF THE
19 DEFENDANT IS NOT A MATTER THAT YOU MAY CONSIDER IN MITIGATION.
20 EVIDENCE, IF ANY, OF THE IMPACT OF AN EXECUTION ON FAMILY
21 MEMBERS SHOULD BE DISREGARDED, UNLESS IT ILLUMINATES SOME
22 POSITIVE QUALITY OF THE DEFENDANT’S BACKGROUND OR CHARACTER.
23 THE ABSENCE OF REMORSE IS NOT A STATUTORY AGGRAVATING FACTOR.
24
IT IS NOT REQUIRED THAT ALL JURORS AGREE ON ANY
25 MATTER OFFERED IN MITIGATION OR AGGRAVATION. AFTER DISCUSSION
26 AND CONSIDERATION OF OTHER JURORS’ VIEWS, EACH JUROR MAKES AN
27 INDIVIDUAL EVALUATION OF EACH FACT OR CIRCUMSTANCE OFFERED IN
28 AGGRAVATION AND MITIGATION OF PENALTY.

10492
1 EVIDENCE HAS BEEN INTRODUCED FOR THE PURPOSE OF
2 SHOWING THAT THE DEFENDANT HAS COMMITTED THE FOLLOWING CRIMINAL
3 ACTS: BATTERY AND/OR LEWD ACT WITH A CHILD UNDER THE AGE OF 14,
4 WHICH INVOLVE THE EXPRESS OR IMPLIED USE OF FORCE OR VIOLENCE.
5 BEFORE A JUROR MAY CONSIDER ANY OF SUCH CRIMINAL
6 ACTS AS AN AGGRAVATING CIRCUMSTANCE IN THIS CASE A JUROR MUST
7 FIRST BE SATISFIED BEYOND A REASONABLE DOUBT THAT THE DEFENDANT
8 DID, IN FACT, COMMIT THE CRIMINAL ACT. A JUROR MAY NOT CONSIDER
9 ANY EVIDENCE OF ANY OTHER CRIMINAL ACTS AS AN AGGRAVATING
10 CIRCUMSTANCE. IT IS NOT NECESSARY FOR ALL JURORS TO AGREE. IF
11 ANY JUROR IS CONVINCED BEYOND A REASONABLE DOUBT THAT THE
12 CRIMINAL ACTIVITY OCCURRED, THAT JUROR MAY CONSIDER THE ACTIVITY
13 AS A FACT IN AGGRAVATION. IF A JUROR IS NOT SO CONVINCED, THAT
14 JUROR MUST NOT CONSIDER THE EVIDENCE FOR ANY PURPOSE.
15 A DEFENDANT IN A CRIMINAL TRIAL HAS A
16 CONSTITUTIONAL RIGHT NOT TO BE COMPELLED TO TESTIFY. YOU MUST
17 NOT DRAW ANY INFERENCE FROM THE FACT THAT THE DEFENDANT DID NOT
18 TESTIFY. FURTHER, YOU MUST NEITHER DISCUSS THIS MATTER NOR
19 PERMIT IT TO ENTER INTO YOUR DELIBERATIONS IN ANY WAY.
20
REASONABLE DOUBT IS DEFINED AS FOLLOWS: IT IS NOT
21 A MERE POSSIBLE DOUBT, BECAUSE EVERYTHING RELATING TO HUMAN
22 AFFAIRS IS OPEN TO SOME POSSIBLE OR IMAGINARY DOUBT. RATHER, IT
23 IS THAT STATE OF THE CASE WHICH, AFTER THE ENTIRE COMPARISON AND
24 CONSIDERATION OF ALL OF THE EVIDENCE, LEAVES THE MINDS OF THE
25 JURORS IN THAT CONDITION THAT THEY CANNOT SAY THEY FEEL AN
26 ABIDING CONVICTION OF THE TRUTH OF THE ALLEGATION OR CHARGE.
27
I HAVE NOT INTENDED BY ANYTHING I HAVE SAID OR DONE
28 OR BY ANY QUESTIONS THAT I MAY HAVE ASKED OR BY ANY RULINGS THAT

10493
1 I MAY HAVE MADE TO INTIMATE OR SUGGEST WHAT YOU SHOULD FIND TO
2 BE THE FACTS OR THAT I BELIEVE OR DISBELIEVE ANY WITNESS. IF
3 ANYTHING I HAVE DONE OR SAID HAS SEEMED TO SO INDICATE, YOU WILL
4 TOTALLY DISREGARD IT AND FORM YOUR OWN CONCLUSIONS.
5 THE PURPOSE OF THE COURT’S INSTRUCTIONS IS TO
6 PROVIDE YOU WITH THE APPLICABLE LAW SO THAT YOU MAY ARRIVE AT A
7 JUST AND LAWFUL VERDICT. WHETHER SOME INSTRUCTIONS APPLY WILL
8 DEPEND UPON WHAT YOU FIND TO BE THE FACTS. DISREGARD ANY
9 INSTRUCTION WHICH APPLIES TO FACTS DETERMINED BY YOU NOT TO
10 EXIST. DO NOT CONCLUDE THAT BECAUSE AN INSTRUCTION HAS BEEN
11 GIVEN THAT I AM EXPRESSING AN OPINION AS TO THE FACTS.
12 THE PEOPLE AND THE DEFENDANT ARE ENTITLED TO THE
13 INDIVIDUAL OPINION OF EACH JUROR. EACH OF YOU MUST CONSIDER THE
14 EVIDENCE FOR THE PURPOSE OF REACHING A VERDICT IF YOU CAN DO SO.
15 EACH OF YOU MUST DECIDE THE CASE FOR YOURSELF, BUT SHOULD DO SO
16 ONLY AFTER DISCUSSING THE EVIDENCE AND THE INSTRUCTIONS WITH THE
17 OTHER JURORS. DO NOT HESITATE TO CHANGE AN OPINION IF YOU ARE
18 CONVINCED IT IS WRONG. HOWEVER, DO NOT DECIDE ANY QUESTION IN A
19 PARTICULAR WAY BECAUSE A MAJORITY OF THE JURORS OR ANY OF THEM
20 FAVOR THAT DECISION. DO NOT DECIDE ANY ISSUE IN THIS CASE BY
21 THE FLIP OF A COIN OR ANY OTHER CHANCE DETERMINATION.
22 THE ATTITUDE AND CONDUCT OF JURORS AT ALL TIMES ARE
23 VERY IMPORTANT. IT IS RARELY HELPFUL FOR A JUROR AT THE
24 BEGINNING OF DELIBERATIONS TO EXPRESS AN EMPHATIC OPINION ON THE
25 CASE OR TO ANNOUNCE A DETERMINATION TO STAND FOR A CERTAIN
26 VERDICT. WHEN ONE DOES THAT AT THE OUTSET, A SENSE OF PRIDE MAY
27 BE AROUSED AND ONE MAY HESITATE TO CHANGE A POSITION, EVEN IF
28 SHOWN IT IS WRONG. REMEMBER THAT YOU ARE NOT PARTISANS OR

10494

1 ADVOCATES FOR EITHER SIDE IN THIS MATTER. YOU ARE THE IMPARTIAL
2 JUDGES OF THE FACTS.
3 DURING YOUR DELIBERATIONS ANY QUESTION OR REQUEST
4 THAT YOU MAY HAVE SHOULD BE ADDRESSED TO THE COURT IN WRITING.
5 PLEASE UNDERSTAND THAT COUNSEL MUST FIRST BE CONTACTED BEFORE A
6 RESPONSE CAN BE FORMULATED. IF A READ-BACK OF TESTIMONY IS
7 REQUESTED, THE REPORTER WILL DELETE OBJECTIONS, RULINGS AND
8 SIDEBAR CONFERENCES SO THAT YOU WILL HEAR ONLY THE EVIDENCE THAT
9 WAS ACTUALLY PRESENTED. PLEASE UNDERSTAND THAT IT MAY TAKE SOME
10 TIME TO RESPOND. CONTINUE DELIBERATING UNTIL YOU ARE CALLED
11 BACK INTO THE COURTROOM.
12 THE INSTRUCTIONS WHICH I AM NOW GIVING TO YOU WILL
13 BE MADE AVAILABLE IN WRITTEN FORM FOR YOUR DELIBERATIONS. THEY
14 MUST NOT BE DEFACED IN ANY WAY. YOU WILL FIND THAT THE
15 INSTRUCTIONS MAY BE TYPED, PRINTED OR HANDWRITTEN. PORTIONS MAY
16 HAVE BEEN ADDED OR DELETED. YOU MUST DISREGARD ANY DELETED PART
17 OF AN INSTRUCTION AND NOT SPECULATE AS TO WHAT IT WAS OR AS TO
18 THE REASON FOR ITS DELETION. YOU ARE NOT TO BE CONCERNED WITH
19 THE REASONS FOR ANY MODIFICATION. EVERY PART OF THE TEXT OF AN
20 INSTRUCTION, WHETHER IT IS TYPED, PRINTED OR HANDWRITTEN IS OF
21 EQUAL IMPORTANCE. YOU’RE TO BE GOVERNED ONLY BY THE INSTRUCTION
22 IN ITS FINAL WORDING.

23 DO NOT DISCLOSE TO ANYONE OUTSIDE OF THE JURY, NOT
24 EVEN TO ME OR ANY MEMBER OF MY STAFF, EITHER ORALLY OR IN
25 WRITING, HOW YOU MAY BE DIVIDED NUMERICALLY IN YOUR BALLOTING AS
26 TO ANY ISSUE UNLESS I SPECIFICALLY DIRECT YOU OTHERWISE.
27
IT IS NOW YOUR DUTY TO DETERMINE WHICH OF THE TWO
28 PENALTIES, DEATH OR IMPRISONMENT IN THE STATE PRISON FOR LIFE

10495
1 WITHOUT POSSIBILITY OF PAROLE, SHALL BE IMPOSED ON THE
2 DEFENDANT. AFTER HAVING HEARD ALL OF THE EVIDENCE AND AFTER
3 HAVING HEARD AND CONSIDERED THE ARGUMENTS OF COUNSEL YOU SHALL
4 CONSIDER, TAKE INTO ACCOUNT AND BE GUIDED BY THE APPLICABLE
5 FACTORS OF AGGRAVATING AND MITIGATING CIRCUMSTANCES UPON WHICH
6 YOU HAVE BEEN INSTRUCTED.
7
AN AGGRAVATING FACTOR IS ANY FACT, CONDITION OR
8 EVENT ATTENDING THE COMMISSION OF A CRIME WHICH INCREASES ITS
9 GUILT OR ENORMITY OR ADDS TO ITS INJURIOUS CONSEQUENCES WHICH IS
10 ABOVE AND BEYOND THE ELEMENTS OF THE CRIME ITSELF.
11 A MITIGATING CIRCUMSTANCE IS ANY FACT, CONDITION OR
12 EVENT WHICH DOES NOT CONSTITUTE JUSTIFICATION OR EXCUSE FOR THE
13 CRIME IN QUESTION, BUT MAY BE CONSIDERED AS AN EXTENUATING
14 CIRCUMSTANCE IN DETERMINING THE APPROPRIATENESS OF THE DEATH
15 PENALTY.
16
THE WEIGHING OF AGGRAVATING AND MITIGATING
17 CIRCUMSTANCES DOES NOT MEAN A MERE MECHANICAL COUNTING OF
18 FACTORS ON EACH SIDE OF AN IMAGINARY SCALE OR THE ARBITRARY
19 ASSIGNMENT OF WEIGHTS AS TO ANY OF THEM. YOU ARE FREE TO ASSIGN
20 WHATEVER MORAL OR SYMPATHETIC VALUE YOU DEEM APPROPRIATE TO EACH
21 AND ALL OF THE VARIOUS FACTORS YOU ARE PERMITTED TO CONSIDER.
22 IN WEIGHING THE VARIOUS CIRCUMSTANCES YOU DETERMINE
23 UNDER THE RELEVANT EVIDENCE WHICH PENALTY IS JUSTIFIED AND
24 APPROPRIATE BY CONSIDERING THE TOTALITY OF THE AGGRAVATING
25 CIRCUMSTANCES WITH THE TOTALITY OF THE MITIGATING CIRCUMSTANCES.
26
TO RETURN A JUDGMENT OF DEATH, EACH OF YOU MUST BE
27 PERSUADED THAT THE AGGRAVATING CIRCUMSTANCES ARE SO SUBSTANTIAL
28 IN COMPARISON WITH THE MITIGATING CIRCUMSTANCES THAT IT WARRANTS

10496

1 DEATH INSTEAD OF LIFE WITHOUT PAROLE.
2 IN DECIDING WHETHER LIFE IMPRISONMENT WITHOUT
3 PAROLE OR DEATH IS THE APPROPRIATE SENTENCE, YOU MAY NOT
4 CONSIDER FOR ANY REASON WHATSOEVER THE DETERRENT OR
5 NON-DETERRENT EFFECT OF THE DEATH PENALTY OR THE MONETARY COST
6 TO THE STATE OF EXECUTION OR MAINTAINING A PRISONER FOR LIFE.
7
NOW, I HAVE SOME VERY BRIEF INSTRUCTIONS I’LL BE
8 GIVING YOU AFTER YOU’VE HEARD THE ARGUMENT OF COUNSEL FROM EACH
9 SIDE. AT THIS TIME YOU’LL HEAR THE PEOPLE’S PRESENTATION.
10
MR. DUSEK.
11 MR. DUSEK: THANK YOU, YOUR HONOR.
12 LET ME LET YOU IN ON A LITTLE SECRET, PROBABLY NOT
13 THAT BIG OF A SECRET. AS MUCH AS YOU FOLKS WATCH US, WE WATCH
14 YOU, WE WATCH YOUR REACTIONS. AND WE SAW YOU COME IN HERE
15 TODAY, THIS MORNING AND JUST NOW. THERE WAS A CHANGE, A
16 DIFFERENCE. YOU KNEW IT, WE KNEW IT, BECAUSE OF WHAT TODAY
17 REPRESENTED. WHAT’S GOING TO HAPPEN TODAY FOR US AND WHAT’S
18 GOING TO BEGIN TO HAPPEN FOR YOU.
19
WE HAVE REACHED THAT POINT THAT HAS BEEN DISCUSSED,
20 QUESTIONED, HINTED ABOUT FOR SEVERAL MONTHS NOW, AND NOW IT’S
21 TIME. THE COURT JUST GAVE YOU THE INSTRUCTIONS, AND THE LAST
22 LINE OR ONE OF THE LAST LINES THAT HE REFERRED TO PRETTY MUCH IS
23 WHAT THIS CASE IS ABOUT AT THIS POINT, TO DETERMINE FROM THE
24 RELEVANT EVIDENCE WHICH PENALTY IS JUSTIFIED AND APPROPRIATE.
25 THAT IS THE DETERMINATION. THAT IS THE DETERMINATION, MUCH LIKE
26 WHAT I TOLD YOU BACK AT THE BEGINNING OF THE PENALTY PHASE, YOU
27 WILL HAVE TO DETERMINE DOES HE GET WHAT HE DESERVES OR WHAT HE
28 WANTS. THAT’S IT. DOES HE GET WHAT HE DESERVES OR WHAT HE

10497

1 WANTS.
2 AS I STAND BEFORE YOU THIS ONE LAST TIME, YOU CAN
3 PROBABLY ALL FIGURE OUT WHAT I’M GOING TO SAY. YOU PROBABLY ALL
4 KNOW WHAT I’M GONNA SAY. YOU PROBABLY ALL KNOW WHAT I’M GOING
5 TO ASK YOU TO DO AT THIS LAST PHASE, AND YOU PROBABLY KNOW WHAT
6 YOUR ANSWER SHOULD BE. YOU’LL PROBABLY DO THAT. YOU KNOW WHAT
7 IT SHOULD BE, WHAT IT MUST BE.
8 HE HAS GONE TOO FAR, TOO FAR OVER THE LINE IN THIS
9 SOCIETY. ALL SOCIETIES, SPECIFICALLY THIS ONE, HAVE RULES SET
10 UP. WHAT YOU CAN DO AND WHAT YOU CAN’T DO. SOME OF THE RULES
11 CONSIDERING MINOR POINTS, SOME OF ‘EM CONSIDERING MAJOR POINTS.
12 BUT THE BIG RULES ARE WHAT WE’RE TALKING ABOUT HERE TODAY. YOU
13 DO NOT CROSS THIS LINE. SOCIETY HAS A RIGHT TO PROTECT ITS
14 PEOPLE. IT HAS EVEN A GREATER RIGHT TO PROTECT THE WEAK AND THE
15 YOUNG AND THE FEEBLE, THOSE WHO CANNOT PROTECT THEMSELVES.
16 SOCIETY HAS A RIGHT TO PROTECT THOSE PEOPLE WHO CROSS THAT LINE,
17 WHO GET WAY BEYOND IT IN THEIR CONDUCT, IN THEIR ATTITUDE, IN
18 THEIR BEHAVIOR. THIS MAN HAS DONE THAT. THIS MAN HAS GOTTEN SO
19 FAR BEYOND THE LINE OF A DECENT SOCIETY THAT HE HAS TO PAY THE
20 ULTIMATE PUNISHMENT, THE ULTIMATE PRICE.
21 BEFORE I GET TOO FAR ON, LET ME TELL YOU A COUPLE
22 OTHER THINGS THAT I THINK YOU WILL FIND ARE THE TRUTH. YOU WILL
23 FIND, IF YOU HAVEN’T ALREADY, THAT THIS IS NOT EASY. THIS IS
24 NOT EASY AT ALL. WE TRIED TO ALERT YOU BACK WHEN WE WERE
25 PICKING THE JURY ASKING QUESTIONS, DO YOU THINK THIS IS GOING TO
26 BE EASY. HOPEFULLY YOU UNDERSTOOD A LITTLE BIT AT THAT TIME THE
27 MAGNITUDE OF WHAT THIS CASE, YOUR INVOLVEMENT, YOUR ULTIMATE
28 DECISION WOULD BE. IT IS NOT EASY. IT’S EASY FOR PEOPLE OUT IN

10498
1 THE PUBLIC TO TALK ABOUT WELL, DO YOU APPROVE THE DEATH PENALTY,
2 DON’T YOU, OH, YEAH I APPROVE IT, WE OUGHT TO USE IT ALL THE
3 TIME. NO, I HATE IT, LET’S NOT USE IT. IT IS EASY TO TALK
4 ABOUT IT IN THE ABSTRACT.
5 IT IS TOUGHER WHEN YOU HAVE TO COME INTO COURT AND
6 HAVE TO FILL OUT A QUESTIONNAIRE, STILL IN THE ABSTRACT BUT
7 YOU’RE PUT ON THE SPOT, WHAT DO YOU THINK ABOUT THE DEATH
8 PENALTY, AND YOU HAVE TO STATE YOUR FEELINGS. STILL TOUGHER.
9 IT IS STILL TOUGHER WHEN YOU HAVE TO MAKE THAT GUILT
10 DETERMINATION. YOUR ATTITUDES ABOUT THE DEATH PENALTY, STILL
11 CAUSE YOU, WHOA, MAYBE I’M NOT SO SURE ABOUT IT. THIS IS
12 TOUGHER IN REALITY. TOUGHER WHEN YOU HAVE TO MAKE THAT DECISION
13 ON GUILT, WHICH YOU DID, KNOWING THAT THE NEXT STEP WILL COME.
14 AND NOW WE ARE AT THAT NEXT STEP AND IT IS TOUGH. WE KNOW THAT
15 AND WE WILL NOT TRY TO MINIMIZE IT. DO NOT SHIRK THAT
16 RESPONSIBILITY. DO NOT QUESTION YOUR BELIEFS.
17
ANOTHER TRUTH. THIS IS NOT FUN. THIS IS NOT FUN
18 FOR ANYBODY. NOBODY, NOBODY WANTS TO BE HERE. YOU KNOW THE VAN
19 DAMS DO NOT WANT TO BE HERE ON A MURDER TRIAL, A PENALTY PHASE
20 BECAUSE OF THE MURDER OF THEIR DAUGHTER. YOU KNOW THE
21 WESTERFIELD FAMILY DID NOT WANT TO HAVE TO COME HERE AND BEG FOR
22 THE LIFE OF THEIR FATHER, BROTHER, NEPHEW. YOU KNOW THE REST OF
23 US WOULD RATHER BE SOMEWHERE ELSE. THIS IS NO FUN. THIS IS NOT
24 SOMETHING THAT ONE TAKES A GREAT GLEE OR DELIGHT IN, I GET A
25 CHANCE TO NOTCH MY BELT, ONE SIDE OR THE OTHER. THIS IS NOT
26 FUN. AND WE KNOW IT’S NOT FUN FOR YOU.
27
BUT AS WE SIT HERE AND I LOOK AT YOU AND WHAT YOU
28 HAVE DONE EARLY ON, PERHAPS YOU DIDN’T VOLUNTEER TO COME DOWN

10499

1 BUT YOU DID NOT STEP BACKWARDS WHEN YOUR NAME WAS CALLED. YOU
2 DID NOT BACK OUT OF THIS. YOU DID NOT SAY I DON’T WANT ANY PART
3 OF THAT. I WILL STEP FORWARD. I AM A PART OF THIS COMMUNITY.
4 IF CALLED UPON I WILL SERVE. THAT’S ALL WE CAN ASK.
5 ONE OTHER THING BEFORE WE GET INTO THE ARGUMENT.
6 DO NOT, DO NOT LET ANYBODY MAKE YOU FEEL GUILTY FOR WHAT YOU’RE
7 ABOUT TO DO. DO NOT LET ANYBODY IN THIS COURTROOM, OUTSIDE THIS
8 COURTROOM, ANYWHERE, MAKE YOU FEEL GUILTY FOR DOING YOUR JOB, TO
9 DO WHAT YOU HAVE TO DO, WHAT YOU TOOK AN OATH TO DO. DO NOT LET
10 ANYBODY PUT YOU IN THE SAME CATEGORY AS DAVID WESTERFIELD. HE
11 IS THE ONE THAT HAS BROUGHT US ALL TOGETHER, HIS CONDUCT, HIS
12 MURDER OF A SEVEN-YEAR-OLD CHILD. HE HAS BROUGHT ALL OF YOU
13 TOGETHER, ALL OF US TOGETHER, THE VAN DAM FAMILY, THE
14 WESTERFIELD FAMILY. HIS CONDUCT BROUGHT US ALL TO THIS POINT.
15 MAKE NO MISTAKE ABOUT THAT.
16
LET ME REVIEW THE LAW QUICKLY THAT THE COURT GAVE
17 YOU. IT IS, AT LEAST FOR US, FAIRLY SIMPLE. SOME OF IT YOU NOW
18 HEARD TWICE. BUT I WOULD LIKE TO FOCUS ON THE LAW THAT PERTAINS
19 DIRECTLY TO THIS PHASE OF THE CASE, THE FACTORS THAT YOU CAN
20 CONSIDER, AND WHAT YOU ARE SUPPOSED TO DO WITH THEM.
21 YOU WILL NOT HEAR FROM ME ANY DISCUSSION ABOUT
22 WHETHER OR NOT WE SHOULD HAVE THE DEATH PENALTY, WHETHER OR NOT
23 IT IS APPROPRIATE IN OUR SOCIETY, IN OUR STATE. THAT HAS NO
24 BEARING ON WHAT WE’RE HERE TO DO TODAY. THAT’S WHY WE ALL ASKED
25 YOU THOSE QUESTIONS EARLY ON. DO YOU APPROVE OF IT, AGREE WITH
26 IT, DISAGREE WITH IT. REGARDLESS, COULD YOU ENFORCE IT IN THE
27 APPROPRIATE CASE. THAT’S ALL WE’RE TALKING ABOUT HERE TODAY,
28 NOT WHETHER OR NOT WE SHOULD HAVE IT OR SHOULDN’T HAVE IT. IT

10500

1 IS THE LAW OF THE STATE. AND THEN WE ARE HERE TO APPLY THE LAW
2 OF THE STATE. THIS IS NOT THE TIME TO DEBATE WHETHER WE SHOULD
3 HAVE IT OR NOT HAVE IT.
4
SECOND POINT. JUST SO THERE IS NO
5 MISUNDERSTANDING, THE DEATH PENALTY IS GREATER THAN LIFE IN
6 PRISON WITHOUT PAROLE. THAT SEEMS OBVIOUS. SURE, IT SHOULD BE.
7 BUT THE REASON I MENTION IT AT THIS POINT IS THAT PERHAPS THERE
8 ARE SOME PEOPLE IN THEIR QUESTIONNAIRES WHO TALKED ABOUT WELL,
9 MAYBE LIFE IN PRISON WOULD BE THE GREATER PUNISHMENT BECAUSE OF
10 FACTORS ONE, TWO, THREE, FOUR. IT IS NOT. IT IS NOT. THE LAW
11 SAYS IT IS NOT.
12 IF HE IS DESERVING OF THE GREATEST PUNISHMENT,
13 THAT’S WHAT HE GETS. IF HE IS NOT DESERVING OF THE GREATER OF
14 THE TWO PUNISHMENTS, HE RECEIVES THE OTHER PUNISHMENT, THE LIFE
15 IN PRISON WITHOUT PAROLE. I SAY THAT SO THAT AT LEAST HOPEFULLY
16 THAT THERE’S NO WIGGLING, I GUESS. IF YOU DON’T BELIEVE IN THE
17 DEATH PENALTY, I THINK PROBABLY HE’S DESERVING OF THE GREATER
18 PUNISHMENT BUT I’LL GIVE HIM LIFE IN PRISON BECAUSE I THINK
19 HE’LL SUFFER MORE. THAT CAN’T BE DONE. THAT CAN’T BE DONE.
20
THE FACTORS. I THINK THERE ARE ELEVEN UP THERE.
21 THEY ARE LABELED "A" THROUGH "K". THOSE ARE THE FACTORS THAT
22 THE COURT JUST GOT THROUGH READING TO YOU AND THE FACTORS THAT
23 ARE AVAILABLE TO YOU TO CONSIDER, AGGRAVATING AND MITIGATING
24 FACTORS. GOOD THINGS AND BAD THINGS ABOUT HIM, HIS BEHAVIOR,
25 HIS CRIME, HIS BACKGROUND.
26
THE FIRST ONE IS FAIRLY SIMPLE. IT’S BASICALLY THE
27 CRIME THAT WE WERE HERE BEFORE TALKING ABOUT. THE CIRCUMSTANCES
28 OF THE CRIME FOR WHICH THE DEFENDANT WAS CONVICTED AND THE

10501
1 EXISTENCE OF ANY SPECIAL CIRCUMSTANCES. THE PORNOGRAPHY CHARGE,
2 THE KIDNAPPING CHARGE AND THE MURDER CHARGE, THE CRIMES THAT WE
3 ARE HERE THAT YOU FOLKS RETURNED THE GUILTY VERDICTS ON.
4
MR. FELDMAN: OBJECTION, MISSTATES THE LAW, 311.
5 THE COURT: OVERRULED.
6
YOU MAY PROCEED.
7
MR. DUSEK: THAT IS WHAT WE’RE TALKING ABOUT HERE TODAY
8 UNDER FACTOR "A".
9
FACTOR "B", THE SECOND FACTOR WOULD BE THE PRESENCE
10 OR ABSENCE OF CRIMINAL ACTIVITY BY THE DEFENDANT WHICH INVOLVED
11 THE USE OR ATTEMPTED USE OF FORCE OR VIOLENCE OR THREATENING TO
12 USE FORCE OR VIOLENCE. THAT DOES NOT RELATE TO THE CRIMES OF
13 THE MURDER. THAT RELATES TO JENNIE N., THE SEPARATE UNRELATED
14 INCIDENT THAT YOU HEARD ABOUT HERE IN THIS PENALTY PHASE OF THE
15 CASE. CERTAINLY HE HAD NO PRIOR ACTS LIKE THAT. THAT WOULD BE
16 A MITIGATING FACTOR. THAT WOULD BE SOMETHING THAT WOULD COUNT
17 FOR HIM. IF THERE IS AN ACT THAT QUALIFIES UNDER THAT "B", THAT
18 IS SOMETHING THAT WOULD BE AGGRAVATING. BEFORE YOU CAN USE IT,
19 AS THE COURT TOLD YOU, WE HAVE TO PROVE IT BEYOND A REASONABLE
20 DOUBT. IT’S A LITTLE BIT DIFFERENT HERE THAN THE GUILT PART IS
21 THAT YOU DO NOT NEED TO UNANIMOUSLY AGREE THAT THAT EVENT WAS
22 PROVED BEYOND A REASONABLE DOUBT. THOSE OF YOU THAT BELIEVE IT
23 HAS BEEN CAN USE THAT AS AN AGGRAVATING FACTOR. THOSE OF YOU
24 THAT DON’T BELIEVE IT CAN’T USE IT AS AN AGGRAVATING FACTOR. SO
25 YOU DON’T ALL HAVE TO AGREE TO USE IT AT THIS PHASE OF THE CASE.
26 AND WITH ALL OF THESE FACTORS, EACH OF YOU DETERMINE WHAT IS IT
27 WORTH TO ME, HOW IMPORTANT IS THAT.
28 THE THIRD FACTOR IS THE PRESENCE OR ABSENCE OF ANY

10502
1 PRIOR FELONY CONVICTION. IF HE HAS A PRIOR FELONY CONVICTION,
2 THAT WOULD BE AN AGGRAVATING FACTOR. IF HE HAS NO PRIOR FELONY
3 CONVICTION, THAT WOULD BE A MITIGATING FACTOR, SOMETHING THAT
4 HELPS HIM OUT. WE KNOW HE DOES NOT HAVE ANY PRIOR FELONY
5 CONVICTIONS. THEREFORE, THAT COUNTS AS A MITIGATING FACTOR FOR
6 HIM.
7
MOVING ON DOWN THE LINE, FACTOR "D", WHETHER OR NOT
8 THE OFFENSE WAS COMMITTED WHILE THE DEFENDANT WAS UNDER EXTREME
9 MENTAL OR EMOTIONAL DISTURBANCE. WAS HE HAVING MENTAL PROBLEMS
10 OR BACKGROUND PROBLEMS OR LIFE PROBLEMS THAT WERE CAUSING AN
11 EXTREME MENTAL OR EMOTIONAL DISTURBANCE. SOMETHING THAT MAY
12 HAVE GOTTEN INTO HIS WAY OF RATIONAL THINKING. IF SOMETHING
13 LIKE THAT EXISTS, THAT WOULD HELP HIM. THAT WOULD BE A
14 MITIGATING FACTOR.
15 FACTOR "E", WHETHER OR NOT THE VICTIM, DANIELLE VAN
16 DAM, WAS A PARTICIPANT IN THE DEFENDANT’S HOMICIDAL CONDUCT OR
17 CONSENTED TO THE HOMICIDAL ACT. DID SHE PARTICIPATE. WERE THEY
18 OUT DOING SOMETHING TOGETHER WHEN SHE GOT KILLED, OR DID SHE
19 CONSENT TO. I GUESS SOMETHING LIKE THAT WOULD BE SOMEHOW
20 PLAYING RUSSIAN ROULETTE. OKAY, I’LL AGREE TO DO THAT WITH YOU.
21 IT’S KIND OF YOUR FAULT FOR GETTING INVOLVED IN THIS THING, TOO.
22 THAT’S THE TYPE OF THING THAT WOULD COME IN UNDER FACTOR "E".
23 FACTOR "F", WHETHER OR NOT THE OFFENSE WAS
24 COMMITTED UNDER CIRCUMSTANCES IN WHICH THE DEFENDANT REASONABLY
25 BELIEVED HE HAD A MORAL JUSTIFICATION OR EXTENUATION FOR HIS
26 CONDUCT. HE HAD A MORAL REASON FOR DOING WHAT HE DID. IF
27 THERE’S EVIDENCE OF THAT, THAT WOULD HELP HIM. THAT WOULD BE A
28 MITIGATING FACTOR IF HE HAD A MORAL REASON FOR DOING WHAT HE

10503
1 DID.
2 FACTOR "G", WHETHER OR NOT THE DEFENDANT ACTED
3 UNDER EXTREME DURESS OR THE SUBSTANTIAL DOMINATION OF ANOTHER.
4 WHAT WE’RE TALKING ABOUT HERE IS BASICALLY A TWO-PARTY CRIME.
5 YOU KNOW, LET’S, THE TWO OF US, GO OUT AND DO SOMETHING. HEY,
6 YOU HOLD THE GUN OR I’M GONNA BEAT UP YOUR BROTHER. DURESS ON
7 THE OTHER PARTY. YOU SHOOT THIS GUY OR I’LL SHOOT YOU. THAT’S
8 THE TYPE OF DURESS, AN EXAMPLE OF DURESS. OR WHAT WAS THE OTHER
9 ONE, THE SUBSTANTIAL DOMINATION OF ANOTHER PERSON. SOMEBODY
10 ELSE IS IN CHARGE AND CALLING THE SHOTS. IF WE HAVE ANY
11 EVIDENCE OF THAT, THAT’S A MITIGATING FACTOR. THAT HELPS HIM.
12 WE DON’T.
13 WHETHER OR NOT AT THE TIME OF THE CRIME THE
14 CAPACITY OF THE DEFENDANT TO APPRECIATE THE CRIMINALITY OF HIS
15 CONDUCT OR TO CONFORM HIS CONDUCT TO THE REQUIREMENTS OF THE LAW
16 WAS IMPAIRED AS A RESULT OF A MENTAL DISEASE OR DEFECT OR THE
17 EFFECTS OF INTOXICATION. WHAT WE’RE TALKING ABOUT HERE WOULD BE
18 SOME PERSON WHO’S NOT GUILTY BY REASON OF INSANITY, THAT TYPE OF
19 THING, OR SOMEBODY WHO WAS SO DRUNK THEY DIDN’T KNOW WHAT THEY
20 WERE DOING. YOU KNOW, CERTAINLY, IF THOSE CONDITIONS EXIST,
21 THAT WOULD BE BENEFICIAL TO THE DEFENSE. THAT WOULD BE A
22 MITIGATING FACTOR, SOMETHING THAT SHOULD GO ONTO THEIR SIDE.
23 THERE IS NO SUCH EVIDENCE OF THAT HERE. THERE HAS
24 BEEN SOME TALK ABOUT INTOXICATION BACK AT DAD’S. SOME DISPUTE I
25 THINK WOULD PROBABLY BE THE BETTER PHRASE. BUT THAT
26 INTOXICATION HAD LONG SINCE WORN OFF BY THE TIME HE GETS UP IN
27 THE MORNING AND LEAVES THE HOUSE, GOES TO — UP ON THE HILL TO
28 GET THE R. V., CONTINUES ABOUT HIS EFFORTS. SO THE DEFENDANT

10504

1 CANNOT POINT TO THIS FACTOR AS A MITIGATING FACTOR FOR HIM.
2 NEXT ONE WE HAVE HERE IS THE AGE OF THE DEFENDANT.
3 HOW OLD WAS HE AT THE TIME OF THE CRIME. SEEMED LIKE THAT’S
4 SOMETHING YOU OUGHT TO KNOW. YOU KNOW, IS HE A YOUNG KID JUST
5 18 OR IS HE 95 YEARS OLD, OR IS HE SOMEWHERE IN THE MIDDLE. HOW
6 OLD HE IS IS A FACTOR TO BE KNOWN AND FOR YOU FOLKS TO DETERMINE
7 WHAT IT MEANS, IF ANYTHING.
8 THE NEXT ONE WE HAVE IS WHETHER OR NOT THE
9 DEFENDANT WAS AN ACCOMPLICE TO THE OFFENSE AND HIS PARTICIPATION
10 WAS RELATIVELY MINOR. IS HE THE LIGHTWEIGHT OR IS HE THE
11 HEAVYWEIGHT. OBVIOUSLY, THIS WOULD ONLY APPLY IF THERE WERE
12 TWO, THREE, FOUR, FIVE PEOPLE INVOLVED. CERTAINLY IF HE WAS THE
13 LIGHTWEIGHT IN THE CRIME, YEAH, HE OUGHT TO GET THE BENEFIT. HE
14 OUGHT TO GET MITIGATING POINTS, IF YOU WILL.
15 AND FINALLY, THE LAST CATEGORY IS ANY OTHER
16 CIRCUMSTANCE WHICH EXTENUATES THE GRAVITY OF THE CRIME, EVEN
17 THOUGH IT’S NOT A LEGAL EXCUSE FOR THE CRIME. AND IT GOES ON TO
18 SAY "AND ANY OTHER SYMPATHETIC OR OTHER ASPECT OF THE
19 DEFENDANT’S CHARACTER OR RECORD THAT THE DEFENDANT OFFERS AS A
20 BASIS FOR A SENTENCE LESS THAN DEATH."
21 THIS IS WHAT WE CALL FACTOR "K". BASICALLY, IT’S A
22 CATCH-ALL. SOMETHING THAT ALLOWS THE DEFENSE TO PRODUCE
23 BASICALLY ANYTHING. GIVE THE JURY ANYTHING YOU HAVE TO JUSTIFY
24 A SENTENCE THAT HE WANTS. HIS WHOLE LIFE IS OPENED UP. BRING
25 ME YOUR HIGH SCHOOL SWEETHEART. BRING ME YOUR BLUEBERRY
26 PICKERS, BRING ME YOUR WIVES, YOUR CHILDREN, ANYTHING, ANYTHING
27 AT ALL. AND THAT IS FAIR AND IT SHOULD BE THAT WAY CONSIDERING
28 WHAT WE’RE DOING HERE. HE SHOULD BE ALLOWED TO BRING IN

10505
1 ANYTHING AND EVERYTHING HE CAN TO ASK YOU FOR WHAT HE WANTS AND
2 THE COURT PERMITS IT.
3 ONCE THE EVIDENCE IS ANALYZED AND ASSESSED, THEN
4 YOU HAVE TO GO THROUGH THE WEIGHING PROCESS OF WHAT DO I DO WITH
5 IT. HOW DO I MAKE THAT ULTIMATE DECISION. AND THE COURT TOLD
6 YOU I THINK TOWARDS ONE OF THE END INSTRUCTIONS THAT HE GAVE
7 YOU, TO RETURN A JUDGMENT OF DEATH, EACH OF YOU MUST BE
8 PERSUADED THAT THE AGGRAVATING CIRCUMSTANCES ARE SO SUBSTANTIAL
9 IN COMPARISON WITH THE MITIGATING CIRCUMSTANCES THAT IT WARRANTS
10 DEATH INSTEAD OF LIFE IN PRISON WITHOUT PAROLE. SO SUBSTANTIAL
11 THAT IT WARRANTS THE DEATH PENALTY. THERE IS NO DISCUSSION IN
12 HERE REGARDING PROOF BEYOND A REASONABLE DOUBT. THERE IS NO
13 DISCUSSION ABOUT WHAT SENTENCE IS PREFERRED OR ASSUMED TO BE THE
14 RIGHT ONE. THAT WILL BE A DECISION THAT YOU FOLKS MAKE.
15 THE WAY I’D LIKE TO APPROACH THIS IS TO BEGIN WITH
16 THE MITIGATING FACTORS. THE FACTORS THAT WE HAVE HEARD FROM THE
17 DEFENSE THAT WOULD BE USED TO INDICATE HE SHOULD GET WHAT HE
18 WANTS AT THIS PHASE OF THE CASE. THE FIRST ONE I THINK WOULD BE
19 UP UNDER "C". I THINK I MENTIONED IT ALREADY. ABSENCE OF A
20 PRIOR FELONY CONVICTION. HE’S CLEAN. THAT IS A MITIGATING
21 FACTOR FOR HIM. THAT IS SOMETHING THAT YOU MUST CONSIDER AND
22 SHOULD CONSIDER IN DETERMINING WHAT IS APPROPRIATE IN THIS CASE.
23 YOU MUST DETERMINE HOW MUCH IS THAT WORTH, HOW MUCH VALUE TO
24 PLACE ON THAT, HOW IMPORTANT IS IT, HOW WEIGHTY IS IT.
25 THE NEXT ONE, WE’LL CALL IT A MITIGATING FACTOR, IS
26 THE AGE OF THE DEFENDANT. HE’S 50-YEARS-OLD. WHAT DOES THAT
27 MEAN? YOU FOLKS, BASED UPON YOUR LIFE EXPERIENCES, WILL
28 DETERMINE WHAT IT MEANS, HOW WEIGHTY IS IT, HOW IMPORTANT IS IT.

10506

1 DOES IT TELL YOU THAT HE IS SO OLD — AND I DON’T MEAN IT THAT
2 WAY — BUT OLD ENOUGH TO KNOW BETTER. HAS ENOUGH LIFE
3 EXPERIENCES TO KNOW WHAT HE’S DOING AND WHAT’S GONNA HAPPEN AND
4 THE DAMAGE IT’S GOING TO CAUSE. ADD THAT INTO HOW IMPORTANT
5 THAT FACTOR IS, WHAT IT MEANS TO YOU AS JURORS.
6
AND THE FINAL MITIGATING FACTOR, AT LEAST THE FINAL
7 CATEGORY IS THE "K" FACTOR, THE CATCHALL WHERE HE GETS A CHANCE
8 TO INTRODUCE AND PRODUCE WHATEVER HE WANTS.
9
SOME OF YOU FOLKS MAY REMEMBER AN OLD TV SHOW,
10 THIS IS YOUR LIFE. SOME OF YOU MAY NOT. BUT BASICALLY THAT’S
11 WHAT THIS IS. THIS IS YOUR LIFE, DAVID WESTERFIELD. SHOW THIS
12 JURY YOUR LIFE, YOUR GOOD DEEDS, EVERYTHING YOU’VE DONE, THE
13 PROBLEMS THAT YOU’VE HAD TO OVERCOME. THIS ALLOWS ALL OF THAT
14 EVIDENCE TO BE INTRODUCED TO YOU FOLKS.
15 AND WE HEARD IT HERE IN THE LAST TWO, TWO AND A
16 HALF DAYS. BASICALLY ALL OF THAT COMES IN WITHIN THIS FACTOR
17 "K", THE FINAL RESULT THAT WE HAVE HERE. AND WE HAVE HEARD
18 VARIOUS CATEGORIES — I’VE BROKEN IT DOWN — BASICALLY HIS
19 UPBRINGING IS THE FIRST CATEGORY, HOW HE GOT STARTED BACK IN
20 MAINE WITH HIS FAMILY, MOM, DAD, BROTHERS AND SISTERS, HOW HE
21 GREW UP.
22 HOW WEIGHTY IS THAT? I WOULD SUBMIT NOT THAT
23 WEIGHTY BECAUSE HE IS NOT RESPONSIBLE FOR THAT. HE IS NOT
24 RESPONSIBLE FOR THE TYPE OF FAMILY HE WAS BORN INTO. HE IS NOT
25 RESPONSIBLE FOR HIS PARENTS’ ACTIVITY, FOR WHETHER OR NOT HIS
26 FATHER GOT A JOB AND COULD SUPPORT THE FAMILY, WHETHER OR NOT
27 HIS MOTHER DID THIS OR THAT, WHETHER OR NOT HE EVEN HAD TWO
28 FAMILIES IN THE HOME. BUT I THINK IT DOES GIVE US SOME INSIGHT

10507

1 TO DAVID WESTERFIELD LATER ON WHEN YOU DECIDE HOW IMPORTANT
2 THESE FACTOR "K" ITEMS ARE. I THINK IT TELLS US, BASED UPON THE
3 EVIDENCE, THAT HE HAD VERY LITTLE, VERY LITTLE TO OVERCOME. HE
4 HAD IT ALL. HE WAS NOT RAISED BY A SINGLE PARENT. HE WAS NOT
5 RAISED IN A HOUSEHOLD WHERE THE MONEY WAS TIGHT. HE WAS NOT
6 RAISED AROUND ALCOHOL OR DRUGS OR SEXUAL ABUSE OR PHYSICAL
7 ABUSE. HE WAS NOT RAISED IN A FAMILY THAT THERE WERE EMOTIONAL
8 OR MENTAL PROBLEMS.
9
HE HAD IT ALL. HE HAD THE BLUEBERRIES, THE WATER
10 SKIING, SNOW SKIING, THE VACATIONS, THE FAMILY GET-TOGETHERS,
11 AND FROM WHAT WE SAW THE LAST FEW DAYS, THE LOVE OF A GREAT MANY
12 PEOPLE. THEY GAVE IT TO HIM. HE HAD IT.
13 WE LOOK AT SOME OF THE OTHER CATEGORIES OF PEOPLE
14 WHO SHOWED UP HERE; THE FAMILY MEMBERS, THE SISTER AND THE
15 AUNTS. THEY’RE IN A TOUGH SPOT. YOU GOT TO FEEL FOR ‘EM. YOU
16 REALLY DO. EACH AND EVERY FAMILY MEMBER, EACH AND EVERY FAMILY
17 FRIEND THAT CAME IN HERE, YOU HAVE TO FEEL FOR ‘EM FOR WHAT HE
18 MADE THEM DO. COME INTO COURT AND TRY TO SAVE MY LIFE.
19
HIS AUNTS CERTAINLY HAD FOND MEMORIES BACK IN MAINE
20 BUT VERY LITTLE CONTACT WITH HIM SINCE. ONE I THINK LIVED IN
21 WISCONSIN, ILLINOIS. PERHAPS THERE WAS ANOTHER ONE THAT WAS
22 HERE IN THE AREA. THEY KNEW HIM BACK THEN. MINIMUM CONTACT
23 NOW. HIS SISTER, YOU HAD TO BE STRUCK BY THE IRONY OF THE
24 SISTER WHO CAME IN HERE IN COURT AND TESTIFIED ABOUT HER
25 RELATIONSHIP WITH HER BROTHER, THE EMOTION THAT WAS SHOWN BY THE
26 SISTER AND THE DEFENDANT. FIRST TIME WE SAW EMOTION FROM HIS
27 SISTER. OBVIOUSLY, SHE KNEW HOW IMPORTANT THAT BROTHER/SISTER
28 RELATIONSHIP WAS. SHE KNEW HOW FIRM AND TIGHT THAT

10508
1 BROTHER/SISTER RELATIONSHIP COULD BE. SHE KNEW HOW UNLIMITED
2 THAT SISTER’S LOVE COULD BE, REGARDLESS OF THE SCREW UPS. HE
3 HAD THAT. HE HAD THAT. SHE HAD THE FOND MEMORIES, THE GOOD
4 TIMES, THE EVENTS THAT STOOD OUT IN HER MIND AS SHE’S GROWN TO
5 MIDDLE AGE. HOW IMPORTANT IS THAT? HOW WEIGHTY IS IT? HE’S
6 CERTAINLY LEFT A FOOTPRINT ON HER LOVE AND IT’S HIS FAULT.
7
YOU COMPARE THAT WHEN YOU DETERMINE HOW IMPORTANT
8 THAT FACTOR IS WITH DAMON, DYLAN, DEREK, BRENDA. ESPECIALLY THE
9 TWO BOYS. THEY’VE LOST THEIR SISTER. THEY WILL NOT KNOW THE
10 LOVE OF A SISTER AND HOW NEAT THAT IS. THEY WILL NOT GET A
11 BIRTHDAY CARD FROM THEIR SISTER: YOU’RE THE BEST BROTHER I
12 COULD EVER HAVE. HE TOOK THAT AWAY FROM THEM.
13 WE HAD OTHER INDIVIDUALS, FRIENDS, NEIGHBORS, HIGH
14 SCHOOL GIRLFRIEND CAME BACK, APPARENTLY PROMPTED BY THE NOTE SHE
15 SENT THE DEFENDANT, THE NICE NOTE. YOU HAVE TO FEEL FOR HER AND
16 YOU HOPE SHE CAN KEEP HER MEMORIES OF DAVID WESTERFIELD FROM 30
17 YEARS AGO. AT LEAST SHE HAS THOSE.
18 SHE HAD SOMETHING ELSE THAT ALSO STRUCK ME, AND SHE
19 WAS QUITE PROUD OF WHAT ELSE SHE HAD, HER EARRINGS, THE EARRINGS
20 THE DEFENDANT HAD GIVEN HER BACK IN HIGH SCHOOL WHEN SHE WAS 17
21 YEARS-OLD. TEN YEARS OLDER THAN DANIELLE. SHE GOT TO BRING OUT
22 THOSE EARRINGS THAT MEANT SOMETHING TO HER FROM DAYS GONE BY AND
23 SHE GOT TO WEAR THEM TO COURT AS SHE TESTIFIED ON HIS BEHALF.
24 SHE GOT TO BRING THEM OUT AND SHE GOT TO USE THIS GIFT HE GAVE
25 HER.
26
WE ALSO HAVE ANOTHER SET OF EARRINGS IN THIS CASE
27 WHEN YOU DETERMINE HOW MUCH WEIGHT YOU GIVE THIS TYPE OF
28 TESTIMONY. ANOTHER SET OF EARRINGS THAT HAD MICKEY MOUSE ON

10509

1 THEM. MICKEY MOUSE EARRINGS THAT DANIELLE VAN DAM WORE. STILL
2 HAVE THE MICKEY MOUSE. STILL HAVE ONE CLIP. WHO KNOWS WHAT
3 HAPPENED TO THE OTHER CLIP. SHE DOES NOT GET TO WEAR THOSE
4 ANYMORE. THEY WERE TAKEN OFF HER DEAD BODY, PUT INTO A BAG AND
5 STORED AT THE SAN DIEGO POLICE DEPARTMENT EVIDENCE LAB BECAUSE
6 OF WHAT HE DID.
7
WE HEARD FROM THE MILLER FAMILY. OBVIOUSLY THEY
8 ARE SOLD ON THE DEFENDANT. BUT WE HEARD FOUR WITNESSES, ONE
9 FAMILY, ONE FAMILY, AND CERTAINLY THEY WANTED TO SAY WHAT THEY
10 HAD TO SAY. THAT MAKES YOU WONDER ABOUT ATTORNEYS BEING
11 WITNESSES. THEY ARE TOUGH TO CONTROL. I THINK THAT’S THE THIRD
12 ONE WE HAD IN THIS CASE. BUT AS WE LISTENED TO WHAT THEY HAD TO
13 SAY, THEY CERTAINLY HAD GOOD MEMORIES. AND THE DAVID
14 WESTERFIELD THEY KNEW CERTAINLY TREATED THEM RIGHT.
15 BUT WHEN YOU LOOK AT THE OPPOSITE SIDE OF THE COIN
16 AND TRY TO DETERMINE HOW MUCH IS THAT WORTH, HOW MUCH WEIGHT DO
17 YOU AS JURORS GIVE IT, I FOUND MYSELF WONDERING, WITH ALL THE
18 PARTIES THAT THEY HAD TOGETHER, THE OCCASIONS WHERE THEY GOT
19 TOGETHER ON TREE RIDGE AND PLAYED THE BOARD GAMES, ENGAGED IN
20 THE FAMILY VALUE ACTIVITIES, PLAYED THE CARD GAMES AND THE
21 PINOCHLE AND THE PICTIONARY, DID YOU WONDER WHETHER OR NOT
22 JENNIE AND HER FAMILY WERE AT ANY OF THOSE PARTIES WHEN WHAT
23 HAPPENED TO HER HAPPENED TO HER? MAKES YOU WONDER. THEY WERE
24 CERTAINLY A CLOSE FAMILY, CERTAINLY INCLUDED ON THOSE PARTIES.
25 WERE THEY THERE.
26
OTHER FAMILY AND FRIENDS. SUSAN L. AND HER
27 DAUGHTER, CHRISTINA GONZALES. WE HEARD FROM THEM I THINK
28 YESTERDAY. OBVIOUSLY STILL HAD FEELINGS FOR THE DEFENDANT. AND

10510

1 HE HAD OPENED UP THEIR HOME — HIS HOME TO CHRISTINA GONZALES
2 AND LET HER MOVE IN THERE FOR A FEW MONTHS. BUT AGAIN, HOW MUCH
3 IS THAT WORTH? HE’S DESCRIBING EVENTS, THINGS THAT HE DID FOR
4 THEM. AND WE HAVE HEARD THE OPPOSITE SIDE BACK IN THE OTHER
5 PART OF THE TRIAL FROM SUSAN. WE HEARD ABOUT HOW THE DEFENDANT
6 BEHAVES WHEN HE HAS TOO MUCH TO DRINK, THAT HE’S FORCEFUL. WE
7 HEARD HER DESCRIBE THE EVENT AFTER SHE BROKE UP WITH HIM AND HAD
8 BEEN OUT WITH SOME FELLOW AND HAD COME HOME AND HE GAVE HER A
9 LITTLE KISS AND HER ENCOUNTER WITH THE DEFENDANT.
10
WE HEARD FROM CHRISTINA GONZALES, THAT SHE DID NOT
11 STAY IN THAT HOME AFTER HER MOTHER LEFT. SHE GOT OUT, TOO. SHE
12 LEFT. IF HE’S SUCH A BIG HEARTED GUY, WHY LEAVE? IN FACT, IF
13 HE’S SUCH A SAINT, WHY SHOULD SHE LEAVE? WHY SHOULD SHE TURN
14 HER BACK ON HIM, ON MULTIPLE OCCASIONS IT SOUNDED LIKE. AND WHY
15 DIDN’T DANIELLE (SIC) LIVE THERE? WHY DIDN’T SHE LIVE IN THE
16 HOUSE? ALTERNATE BACK AND FORTH EVERY OTHER WEEK OR SO. WHEN
17 YOU DETERMINE HOW MUCH WEIGHT TO GIVE THAT TESTIMONY, YOU HAVE
18 TO LOOK AT THE TOTAL PICTURE.
19
WE COME TO THE LAST CATEGORY — WELL, SECOND TO THE
20 LAST CATEGORY, AND THAT IS WHERE HE LEFT HIS FOOTPRINTS ON
21 SOCIETY, WHERE HE INVENTED DEVICES THAT IMPROVED THE LOT OF
22 MANKIND AND WOMANKIND, THAT HE WAS AN INVENTOR THAT IMPROVED
23 EVERYONE’S LIFE. WHAT HE GETS CREDIT FOR AND CERTAINLY HE DOES
24 GET CREDIT IS THAT HE HAD A JOB. HE WORKED. HE STAYED EMPLOYED
25 AND HE WAS APPARENTLY A GOOD EMPLOYEE, SOMEONE THAT OTHER PEOPLE
26 WOULD TAKE TO THEIR NEW COMPANY. HE GETS CREDIT FOR THAT. BUT
27 THAT IS REALLY WHAT EVERYONE’S SUPPOSED TO BE DOING, ISN’T IT,
28 BEFORE WE GO OVERBOARD? WE HEARD HOW HE WAS THE INVENTOR, HOW

10511
1 HE LEFT HIS FOOTPRINTS BECAUSE OF THESE DEVICES THAT HE
2 INVENTED.
3 BEFORE WE PUT HIM IN THE CATEGORY OF JONAS SALK AND
4 ANY ONE OF SIMILAR TYPES, UNDERSTAND WHAT HIS RESPONSIBILITY
5 WAS. HE HAD A JOB. HE WAS GIVEN AN ASSIGNMENT. THE ASSIGNMENT
6 WAS TO WORK ON THIS PROJECT AND HE DID IT. AND APPARENTLY HE
7 DID HIS PART WELL. HE DID NOT SEEK OUT THE HUMANITARIAN
8 PROJECTS. THEY CAME HIS WAY. HE WAS NOT THE ONLY ONE WHO COULD
9 HAVE DONE THEM. OTHERS COULD HAVE. OTHERS DID.
10
PERHAPS IT’S SIMILAR TO SOMEBODY WHO WORKS IN AN
11 AUTOMOTIVE FACTORY. YOU WORK ON THE ASSEMBLY LINE ASSEMBLING
12 CARS. ONE LINE OVER THERE IS ASSEMBLING STATION WAGONS. THE
13 OTHER LINE IS ASSEMBLING AMBULANCES. THEY’RE BOTH DOING THE
14 SAME WORK, AREN’T THEY? ONE JUST HAPPENS TO BE MAKING CARS, THE
15 OTHER ONE’S MAKING AMBULANCES. DO THE PEOPLE DOING THE
16 AMBULANCE, DO THEY GET ANY MORE CREDIT? I DON’T THINK SO.
17 THEY’RE DOING THEIR JOB. AND HE GETS CREDIT FOR DOING HIS JOB
18 AND DOING IT WELL APPARENTLY. BUT A HUMANITARIAN? FAR SHORT,
19 FAR SHORT OF THAT.
20
THE LAST CATEGORY WE HEARD FROM THEM TODAY, THE SON
21 AND DAUGHTER, NEAL AND LISA. YOUR HEART GOES OUT TO ‘EM. YOUR
22 HEART GOES OUT TO ‘EM. WHAT HE HAS DONE TO THEM AND THEIR LIVES
23 AND HOW MUCH LIKE A SISTER THEY HAD THAT UNCONDITIONAL LOVE FOR
24 THEIR FATHER. AND GOOD FOR THEM. GOOD FOR THEM. WHAT — HE
25 HAS PUT HIS FOOTPRINT ON THEIR LIVES. WE WILL PROBABLY HEAR
26 LATER ABOUT ALL THE GOOD THINGS THAT HE’S DONE FOR THEM. BUT HE
27 HAS TRAMPLED OVER THAT FOOTPRINT WITH WHAT HE DID IN THIS CASE.
28 YOU TELL THIS JURY FROM YOUR EVIDENCE THAT NEAL

10512
1 WESTERFIELD IS RESPONSIBLE FOR THE PORN. YOU DO THAT. THAT’S
2 WHAT HAPPENED IN THIS CASE. SHIRK YOUR RESPONSIBILITY. BLAME
3 YOUR SON. AND HE HAD TO COME IN HERE AND STRAIGHTEN IT OUT.
4 AND THEN HE COMES BACK AND TELLS US WHAT HE TOLD US TODAY. HE’S
5 A GOOD KID. HE’S A GOOD KID. AND IT LOOKS LIKE HIS SISTER IS
6 JUST AS GOOD.
7
WHEN YOU SIT DOWN AND TRY TO DETERMINE ALL OF THE
8 EVIDENCE THAT HAS BEEN PRESENTED UNDER THIS FACTOR "K" YOU
9 SHOULD BE STRUCK BY SOME OF THE THINGS THAT ARE MISSING, THE
10 THINGS THAT YOU DID NOT HEAR ABOUT OR FROM. WHO KNOWS HIM BEST?
11 WHO KNOWS A 50-YEAR-OLD MAN BEST? HIS WIFE. FIRST WIFE, THE
12 SECOND WIFE. WHO KNOWS HIM BEST? WHO KNOWS THE DAVID
13 WESTERFIELD OF TODAY? NEIGHBORS FROM THE ’80S, FROM THE EARLY
14 90S OR THE NEIGHBORS ON MOUNTAIN PASS? WHO KNOWS DAVID
15 WESTERFIELD BEST?
16
AND WE HAVE HEARD ABOUT LOTS OF THINGS THAT HE DID,
17 THINGS THAT HE BOUGHT, THINGS THAT HE GAVE OF HIS TIME, BUT DID
18 WE HEAR ABOUT THE CHARACTER OF THE MAN. WHAT MAKES HIM TICK.
19 WE HEARD THINGS: WHAT DID YOU DO WITH HIM? DID YOU GO TO
20 GRADUATION? DID HE TAKE YOU TO SCHOOL? BUT NOT THE CHARACTER.
21 BASICALLY THERE ARE TWO INDIVIDUALS WE’VE BEEN
22 SHOWN; THE PUBLIC DAVID WESTERFIELD AND THE PRIVATE DAVID
23 WESTERFIELD. THE PEOPLE THAT CAME IN HERE AND TESTIFIED TOLD US
24 ABOUT THE PUBLIC DAVID WESTERFIELD, THE PERSON THEY SEE OUT IN
25 PUBLIC, AT PARTIES, AT WORK, THE PART THAT HE EXPOSES TO THE
26 PEOPLE. WE ALSO KNOW ABOUT THE PRIVATE DAVID WESTERFIELD, THE
27 PART THEY DON’T KNOW ABOUT, THAT THEY HAD NOT SEEN, THEY HAD NOT
28 HEARD. WE LEARNED ABOUT AN EARLY PRIVATE DAY DAVID WESTERFIELD

10513
1 FROM JENNIE WHEN SHE TESTIFIED. WE LEARNED ABOUT THE PRIVATE
2 DAVID WESTERFIELD WHEN WE LOOKED AT HIS COLLECTION, THE PHOTOS,
3 THE VIDEOS, THE COMICS. THE PRIVATE DAVID WESTERFIELD IS SHOWN
4 THERE.
5 WE CERTAINLY KNOW ABOUT THE PRIVATE DAVID
6 WESTERFIELD WITH DANIELLE VAN DAM. THERE IS TWO PARTS TO THIS
7 GUY AND THAT’S WHAT MAKES IT SCARY. THAT’S THE SCARY PART. THE
8 FAMILY AND THE FRIENDS KNOW A SWEET KIND-HEARTED INDIVIDUAL,
9 SOMEBODY WHO COULD LIVE TWO HOUSES DOWN AND NOT BE A THREAT, WHO
10 WAVES AT YOU AS YOU GO BY, WHO OPENS UP HIS HOME AND LETS YOU
11 BRING YOUR CHILDREN INTO THE HOUSE TO SELL COOKIES. SOMEONE YOU
12 TRUST. SOMEBODY YOU LIKE. THAT’S THE SCARY PART.
13 THE PRIVATE PART, THE EVIL PART, THE BLACK-HEARTED
14 PART IS THE OTHER PART. LOOK AT WHAT HE HAD. LOOK AT WHAT HE
15 HAD IN LIFE. LOOK AT WHAT HE DESERVED. LOOK AT WHAT HE UTTERLY
16 OBLITERATED.
17
DANIELLE VAN DAM. WE NEED TO GO NO FURTHER THAN
18 THAT. THE VAN DAM FAMILY OBLITERATED. LOOK AT WHAT HE DID TO
19 THE SCHOOL KIDS AT SABRE SPRINGS. WHAT THEY NOW THINK ABOUT,
20 WHAT THEY TALK ABOUT, WHERE THEY SPEND THEIR NIGHTS. WHAT DO WE
21 DO ABOUT HER DESK. HE DID THAT. YOU LOOK AT THE COMMUNITY AND
22 WHAT HE’S DONE.
23 THERE IS NO DOUBT THAT WHEN I SIT DOWN YOU WILL BE
24 ASKED TO SHOW MERCY FOR HIM, SYMPATHY FOR HIM, COMPASSION FOR
25 HIM. WHAT MERCY, COMPASSION, SYMPATHY DID HE SHOW ANYBODY. AND
26 HE HAD A CHANCE. HE HAD A CHANCE AS THAT WEEKEND PROGRESSED.
27 HE SHOWED HER ABSOLUTELY NO COMPASSION, NO MERCY, NO PITY. NONE
28 TO HER FAMILY, NONE TO ANYONE. HE HAD A CHANCE WHEN HE STOOD IN

10514

1 FRONT OF THE TV CAMERAS AND GAVE THE INTERVIEW TO SHOW
2 COMPASSION, TO SHOW REMORSE. HE SHOWED ARROGANCE, CROOKEDNESS,
3 LIES. HE HAD A CHANCE WHEN HE SPOKE WITH PAUL REDDEN. YOU
4 COULD HEAR THE TONE OF HIS VOICE: I AM SMARTER THAN YOU. I CAN
5 BEAT YOU. I CAN ANSWER YOUR QUESTIONS. YOU CAN’T TOUCH ME. HE
6 HAD A CHANCE TO SHOW COMPASSION AND MERCY AND SHOW SOME REMORSE
7 BUT HE SHOWED NONE. AND HE HAD TIME FROM FEBRUARY 2ND UNTIL HE
8 WAS ARRESTED, FEBRUARY 22ND. KNOCK ON THE VAN DAM’S DOOR. I’M
9 SORRY FOR WHAT YOU’RE GOING THROUGH. CAN I BRING YOU A COOKIE,
10 CAN I BRING YOU A LUNCH, I’M SORRY FOR YOUR PAIN. DIDN’T EVEN
11 HAVE TO SAY HE DID IT. HE DIDN’T. NO, NONE WHATSOEVER. AND
12 WHEN YOU ANALYZE ALL OF THIS EVIDENCE UNDER FACTOR "K", THE
13 CATCHALL, YOU HAVE TO DETERMINE WHAT HAS BEEN ESTABLISHED, WHAT
14 ARE YOU COMFORTABLE WITH AND HOW MUCH IS IT WORTH IN YOUR
15 ASSESSMENT.
16
FROM THEN I WOULD URGE YOU TO LOOK AT THE
17 AGGRAVATING FACTORS, AND I WILL WORK MY WAY AROUND. FIRST ONE I
18 WILL BE TALKING ABOUT IS FACTOR B, JENNIE N. WHAT HAPPENED TO
19 JENNIE. YOU’LL HEAR — YOU HEARD FROM THE INSTRUCTIONS THAT WE
20 HAVE TO ESTABLISH THAT THERE WAS CRIMINAL ACTIVITY. THE CRIMES
21 THAT THE COURT TOLD YOU WE’RE TALKING ABOUT ARE BATTERY AND LEWD
22 ACT UPON A CHILD UNDER 14. BATTERY IS SIMPLY TOUCHING SOMEBODY,
23 AND A LEWD ACT ON A CHILD UNDER 14.
24
AGAIN, LET ME REMIND YOU THAT BEFORE YOU CAN
25 CONSIDER THIS EVIDENCE YOU HAVE TO BE CONVINCED BEYOND A
26 REASONABLE DOUBT THAT IT OCCURRED. YOU DO NOT HAVE TO AGREE.
27
LOOK AT THE FACTS. WE HAVE PROBABLY A 12 YEAR-OLD
28 CRIME; BATTERY, LEWD ACT ON A CHILD. TWELVE YEARS AGO OR MAYBE

10515
1 13 OR MAYBE 14 WHEN WE GOT TO IT. SHE WAS IN A HOUSE FULL OF
2 FAMILY AND FRIENDS. A PARTY, FAMILY VALUE ACTIVITIES GOING ON
3 DOWNSTAIRS. SHE GOES OFF TO SLEEP WITH HER SISTER AND OTHER
4 YOUNG GIRLS. SHE WAS A SEVEN-YEAR-OLD CHILD, MAYBE SIX, MAYBE
5 FIVE. AND SHE TOLD YOU WHAT HAPPENED AS SHE WAS LAYING THERE
6 ASLEEP WITH HER EYES CLOSED. THIS SEVEN-YEAR-OLD CHILD WHO KNEW
7 VERY LITTLE ABOUT THE WAYS OF THE WORLD — AND PERHAPS IT’S A
8 GOOD THING.
9 SHE TELLS YOU THAT SHE THINKS FINGERS WERE PUT IN
10 HER MOUTH FROM THE DEFENDANT AND THEN MOVED AROUND AND THEN
11 REMOVED. THAT’S WHAT THIS SEVEN-YEAR-OLD GIRL SAYS HAPPENED TO
12 HER. SHE’S GOT NO REASON TO MAKE IT UP. NO AX TO GRIND. HE
13 PULLS ASIDE, GOES ACROSS THE ROOM AND THEN COMES BACK AND DOES
14 IT AGAIN. AND SHE BELIEVES HIS FINGERS ARE IN HER MOUTH. SHE
15 DIDN’T OPEN HER EYES. OPENED UP HER EYES ONLY TO SEE UNCLE DAVE
16 IN THE ROOM TRYING TO FIX HIS SHORTS WHEN HE WAS DONE.
17 SHE TOLD YOU SHE HAD FEAR. SHE TOLD YOU THAT SHE
18 BIT DOWN ON HIM AND YOU HOPE, YOU HOPE WITH ALL YOUR MIGHT THAT
19 SHE BIT AS HARD AS SHE COULD. YOU HOPE SHE GAVE HIM EVERYTHING
20 SHE HAD. HE LEAVES AND SHE DOES WHAT SHE’S SUPPOSED TO DO, WHAT
21 SHE’S TRAINED TO DO, WHAT SHE HEARD TO DO FROM SCHOOL, GO TELL
22 YOUR FOLKS, GO TELL YOUR MOM. SHE DID.
23 AND THEN WE GET THE DEFENDANT 12 YEARS AGO DOING
24 WHAT HE DID IN THIS CASE, TALKING HIS WAY OUT OF IT. KIDS WERE
25 FUSSING, KIDS WERE HAVING TROUBLE SLEEPING. I JUST CALMED THEM
26 DOWN, JUST SOOTHED THEM. YEAH, RIGHT. MUCH LIKE HE LIED TO
27 JOHNNY KEENE, TO PAUL REDDEN, TO THE TV CAMERAS, HE LIED 12
28 YEARS AGO. HE KNEW WHAT IT WAS ABOUT WHEN HE WAS QUESTIONED

10516

1 ABOUT THIS INCIDENT WITH PAUL REDDEN. HE’S THE FIRST ONE THAT
2 BROUGHT UP MOLEST, NOT PAUL REDDEN. HIS MIND TOOK HIM EXACTLY
3 WHERE IT WAS SUPPOSED TO GO. THIS WAS A MOLEST, A LEWD ACT ON A
4 CHILD UNDER 17. HE KNEW IT. AND YOU HEARD HIS EXPLANATION TO
5 PAUL REDDEN.
6
DO YOU KNOW WHAT HAPPENED? JENNIE HAD NO REASON TO
7 LIE. YOU SAW HER TESTIFY HERE. SHE TOLD THE STORY TO BOTH
8 SIDES. YOU HEARD HER TELL THE TRUTH. SHE GOT IN HERE AND TOLD
9 YOU THE TRUTH. HE DID THAT ACT. FACTOR "B", BEYOND A
10 REASONABLE DOUBT.
11 AND HERE IS WHAT THAT ACT MEANS, HOW YOU WORK THAT
12 IN. THIS WAS THE BEGINNING STAGES OF HIS FANTASIES, AT LEAST
13 THE BEGINNING STAGES THAT WE KNOW ABOUT. WE HAVE YOUNG JENNIE,
14 EITHER AT SEVEN OR FIVE, THE DEFENSE RAISED THE QUESTION IT
15 COULD HAVE BEEN ONE OR TWO YEARS EARLIER. THAT’S WHO SHE WAS.
16 THAT’S WHO HE DID THIS TO.
17
HIS FANTASIES THEN CONTINUED, THAT WE KNOW ABOUT,
18 WITH THESE BOOKS AND THESE PICTURES AND THESE IMAGES AND THE
19 VIDEOS AND THE SCREENS. AND IT CONCLUDES WITH DANIELLE. WE
20 HAVE A HISTORY, A PROGRESSION. THAT TELLS US WHAT THIS MEANS.
21 THAT TELLS US WHAT HE LIKES, WHAT HE WANTS, WHAT HE GETS, EVERY
22 SINGLE ONE. ALSO TELLS US SOMETHING ELSE. IT ALSO TELLS US
23 THAT HE DID THIS CRIME. WHAT HE DID TO THAT CHILD GIVES US THAT
24 ADDED CONFIDENCE. THE DEED THAT HE DID, THIS CRIME, THE
25 LINGERING DOUBT THAT I SUPPOSE YOU’LL HEAR ABOUT, HE DID THAT
26 CRIME. HE DID THIS CRIME. HE IS NOT THE SAINT HE HAS BEEN
27 PORTRAYED.
28 AND FINALLY IT TELLS US SOMETHING ELSE. PERHAPS

10517

1 SIMPLE, PERHAPS HARD TO FATHOM. WHAT HAPPENED WHEN HE COMMITTED
2 THAT CRIME AGAINST JENNIE? SHE TOLD SOMEONE. SHE WENT TO HER
3 MOM AND TOLD HER MOTHER. HE IS NOW IN THE HOT SPOT. HOW DO I
4 GET OUT OF THIS? HE GOT OUT OF IT BACK THEN BY TALKING. BUT
5 THE LESSON WAS LEARNED. YOU DO SOMETHING LIKE THAT, THEY’RE
6 GONNA TELL IF THEY LIVE. THEY’RE GONNA TELL IF YOU LET ‘EM GO
7 HOME, IF YOU LET ‘EM GET BACK TO THEIR MOTHER OR THEIR FATHER.
8 AND THE LESSON WAS LEARNED 12 YEARS LATER. DANIELLE VAN DAM
9 PAID A PRICE FOR THAT LESSON.
10
WE MOVE NOW BACK TO FACTOR "A", THE CIRCUMSTANCES
11 OF THIS CRIME, THE KIDNAPPING AND MURDER OF DANIELLE VAN DAM.
12 THERE ARE SEVERAL THINGS THAT I’D LIKE TO TALK TO YOU BEFORE WE
13 GET INTO THE GUTS OF THE CASE. TWO THINGS THAT I THINK NEED TO
14 BE ADDRESSED BEFORE WE ASK YOU TO DO WHAT YOU HAD BEEN DOING AT
15 THE END OF THIS CASE.
16
THERE ARE TWO PRELIMINARY FACTORS THAT I THINK
17 HOPEFULLY WILL GIVE YOU THAT COMFORT, EVERYTHING THAT EVERYBODY
18 WANTS. THE FIRST THING IS THAT IF HE HAS HAD A FAIR TRIAL. HE
19 HAS HAD A FAIR TRIAL. WE’VE SEEN FOUR ATTORNEYS ON HIS BEHALF.
20 AND THAT IS GOOD. THAT IS GOOD.
21 WE HAVE HEARD ABOUT INVESTIGATORS THAT THEY HAVE
22 HAD AND THAT IS GOOD. THAT MAKES SURE THIS IS FAIR. WE HAVE
23 HEARD FROM EXPERT WITNESSES THAT THEY’VE BEEN ABLE TO BRING INTO
24 COURT AND PRESENT THEIR SIDE. THAT IS FAIR. THAT IS GOOD.

25 THEY HAVE BEEN ABLE TO BRING IN ANYONE IN THE PENALTY PHASE THEY
26 WANT, REGARDLESS OF WHERE THEY LIVE, HOW FAR AWAY. BRING IN WHO
27 YOU WANT. LET THE JURY HEAR. IT IS FAIR. IT IS GOOD. IT IS
28 RIGHT.

10518
1 WE HAVE HAD A CHANCE TO ANALYZE, TO LOOK AT, TO
2 CHECK FINGERPRINTS, D. N. A., ALL OF THE EVIDENCE YOU HAVE.
3 YOU’VE SEEN THAT THEY HAD ACCESS TO THE REPORTS, THE INTERVIEWS,
4 THE TAPES. THAT IS FAIR. HE HAS HAD A FAIR TRIAL ALSO BECAUSE
5 HE HAD A FAIR JURY. THAT SHOULD MAKE ALL OF US FEEL GOOD.
6 MAYBE GOOD IS NOT THE RIGHT WORD. BUT ALL OF US DO KNOW THAT
7 THE RESULT WILL BE JUST AND PROPER.
8 WE KNOW SOMETHING ELSE. WE KNOW HE DID IT. WE
9 KNOW HE IS GUILTY OF THIS CRIME BASED UPON THE EVIDENCE, ALL OF
10 THE EVIDENCE THAT YOU HAVE HEARD. HE DID THIS CRIME. YOUR
11 VERDICT TELLS US THAT. THE EVIDENCE TELLS YOU THAT. THERE WILL
12 ALWAYS BE QUESTIONS THAT WE DON’T KNOW THE ANSWERS TO, BUT WE
13 KNOW HE DID THIS CRIME.
14
AND TO HELP US PROVE THAT WE HAD THE BEST OF MODERN
15 SCIENCE; D. N. A., MITOCHONDRIAL D. N. A., FINGERPRINT PEOPLE
16 WHO HAD THE LATEST TECHNOLOGIES, FIBER PEOPLE WHO HAD THE LATEST
17 TECHNOLOGY, HAIR PEOPLE LIKEWISE.
18 AND WE HAD SOMETHING ELSE. DANIELLE PERHAPS HAD
19 SOMETHING ELSE THAT HELPED US PROVE THIS CASE. DANIELLE VAN DAM
20 HAD TWO SETS OF ANGELS LOOKING OVER HER AFTER SHE WAS DEAD, TWO
21 SETS WHO HELPED US PROVE THIS CASE. THE FIRST SET OF ANGELS
22 WERE THE VOLUNTEERS, THE PEOPLE WHO WENT OFF AND LOOKED FOR HER,
23 WHO GAVE UP THEIR TIME, THEIR ENERGY, THEIR EMOTION TO FIND HER.
24 AND THEY FOUND HER. FIVE PEOPLE FOUND HER DOWN ON DEHESA. AND
25 FROM THAT WE GOT THE FIBERS, HER HAIR LENGTH, HER KNOWN D. N.
26 A., GOOD SETS OF KNOWN PRINTS. THOSE VOLUNTEER ANGELS BROUGHT
27 THIS CASE HERE.
28 AND ONCE WE HAD THAT WE HAD ANOTHER SET OF ANGELS,

10519

1 IF YOU WILL, THE MEN AND WOMEN AT THE SAN DIEGO POLICE LAB.
2 WHAT THEY DID WITH THIS CASE, HOW THEY LOOKED AT IT, HOW LONG
3 AND HOW HARD THEY WORKED THIS CASE TO THE BEST OF THEIR ABILITY
4 AND THEY BROUGHT YOU THEIR RESULTS, WHICH WE HEARD ABOUT
5 FOOTPRINTS EARLY ON. THESE PEOPLE HAD THEIR FOOTPRINTS LEFT ON
6 THOSE LIVES, THOSE VOLUNTEERS.
7
DEHESA WILL ALWAYS HAVE DAVID WESTERFIELD’S
8 FOOTPRINT ON THE SOIL DOWN THERE. AND YOU ASK JEFF GRAHAM IF A
9 FOOTPRINT HAS BEEN LEFT ON HIS LIFE. HE’S THE ONE THAT HAD TO
10 USE HER CUT OFF HANDS TO MAKE THE IDENTIFICATION WITH HER
11 FINGERPRINTS. THAT’S THE FOOTPRINT THAT WAS LEFT ON HIS LIFE
12 BECAUSE OF WHAT THE DEFENDANT DID.
13 WE HEARD AND PROBABLY WILL HEAR AGAIN THAT THE
14 DEFENDANT IS NOT THE WORST OF THE WORST. YOU HEARD THE JURY
15 INSTRUCTIONS. THAT PHRASE DOES NOT COME UP ANYWHERE. NOWHERE
16 DOES IT SAY HE HAS TO BE THE WORST OF THE WORST. WE GAVE YOU
17 THE LAW. YOU APPLY THE LAW. IT WOULD PROBABLY BE A FAIR
18 STATEMENT THAT THERE’S NOT TOO MANY DEFENSE ATTORNEYS THAT THEY
19 THEY WILL REPRESENT THE WORST OF THE WORST. THE GUY NEXT DOOR,
20 HE’S WORST. HE DID THIS AND THAT IN THERE. LET ME GO ASK HIM.
21 OH, NO, NO, NO. IT’S NOT MY GUY. IT’S THE OTHER GUY. HE’S THE
22 WORST OF THE WORST. NO, NOT MY GUY. IT’S THE OTHER GUY.
23 DON’T GET CAUGHT UP IN THAT. WE DON’T HAVE TO
24 PROVE IT. IT’S NOT A FACTOR. IT IS A BUZZ WORD, BUZZ PHRASE.
25 BUT IN THE ANALYSIS WE LOOK AT WHAT HE DID. YOU LOOK AT THE
26 CRIME HE COMMITTED, HOW FAR OVER THE LINE HE IS. IT’S
27 UNIMAGINABLE WHAT HE DID TO THAT CHILD. AND FOR HOW LONG HE DID
28 IT HIS ACTIONS WERE SELFISH, TOTALLY SELFISH. YOU’VE HEARD IT.

10520

1 HE WAS CARRYING OUT HIS FANTASIES ON THAT CHILD.
2 IF YOU HAVE THE NERVE AND THE STOMACH AND WE HAD
3 THE TECHNOLOGY, WOULD YOU WANT TO SEE A VIDEO OF HER LAST DAY?
4 OF HER LAST 24 HOURS? THIRTY-SIX HOURS? LAST HOUR? WOULD YOU
5 WANT TO SEE WHAT HE DID TO HER? I DON’T THINK SO. I DON’T
6 THINK MANY PEOPLE COULD LOOK AT THAT. THERE ARE PROBLEMS ENOUGH
7 WITH WHAT YOU WERE SHOWN. IS HE THE WORST OF THE WORST? WHAT
8 WILL DANIELLE TELL YOU? SHE KNOWS. WHAT WOULD HER PARENTS TELL
9 YOU? THEY KNOW. ANYBODY WHO HAS HEARD THE EVIDENCE AND KNOWS
10 WHAT SHE WENT THROUGH WOULDN’T WANT TO LOOK AT IT AGAIN.
11 SHE WAS A SEVEN-YEAR-OLD CHILD, HAD BARELY STARTED
12 HER WAY THROUGH THIS WORLD. I THINK THERE ARE THREE PHOTOGRAPHS
13 THAT BEST DESCRIBE, BEST SHOW WHAT THIS CRIME IS ABOUT, AND HIS
14 EVIL HEART, EVIL MIND AND EVIL CONDUCT DEMONSTRATED.
15 FIRST PHOTOGRAPH IS HIS BEDROOM AT HIS HOUSE WHERE
16 HE FIRST TOOK THIS YOUNG CHILD AND DID WHAT HE DID TO HER. THE
17 BLINDS WERE CLOSED SO NOBODY COULD LOOK IN. IT WAS JUST THE TWO
18 OF THEM IN THAT BEDROOM. FOR HOW LONG WE DON’T KNOW, BUT WE DO
19 KNOW SOME THINGS. WE DO KNOW THE DEFENDANT COULD SEE THE TERROR
20 IN HER EYES AS SHE LAID THERE ON HIS BED. WHICH SHEET? HOW FAR
21 DOWN? WE DO KNOW THAT HE COULD FEEL HER FEAR AS HE TOUCHED HER
22 SKIN. HE HAD TO. THAT’S WHAT HE FELT AND HE STILL CONTINUED TO
23 ACT. AND YOU KNOW HE HAD TO HEAR HER VOICE. HE HAD TO HEAR HER
24 VOICE. HE LIKES HEARING VOICES. HE SELECTS THINGS WHERE HE CAN
25 HEAR VOICES. THAT GIVES HIM PLEASURE. HE COLLECTS THOSE
26 THINGS. THAT’S THE MAN WHO IS BEFORE THIS COURT.
27
AND ASIDE FROM HER TERROR, HER FEAR, THERE IS
28 SOMETHING THAT PROBABLY IS WORSE, PROBABLY MAKES IT WORSE WHEN

10521
1 WE GO THROUGH WHAT SHE WENT THROUGH. SHE WAS ALONE, ABSOLUTELY
2 ALONE IN THIS TERROR. SHE DID NOT HAVE HER MOTHER THERE. SHE
3 DID NOT HAVE HER FATHER THERE. SHE WAS ALONE WITH THIS MAN IN
4 HIS BEDROOM.
5 THIS LITTLE GIRL, I THINK WE HEARD, WAS 51 INCHES
6 TALL. SHE COMES SLIGHTLY ABOVE THIS PODIUM IN FRONT OF ME.
7 SLIGHTLY ABOVE THIS PODIUM. WHEN THEY STAND AND ASK YOU FOR
8 MERCY, FOR COMPASSION, FOR PITY, REMEMBER HOW TALL SHE WAS. HOW
9 SMALL WAS SHE REALLY. WE DON’T REALLY KNOW. WE CAN’T SEE. BUT
10 WE HAVE HER CHOKER AND YOU CAN SEE HOW SMALL THAT CHOKER IS.
11 HOW SMALL HER NECK HAD TO BE FOR IT TO GET AROUND. AND YOU KNOW
12 HOW BIG THAT MAN IS. SHE WAS ALONE WITH HIM FOR HOURS.
13 THE COURT: MR. DUSEK, I’VE GOT TO CHANGE REPORTERS.
14 TAKE A DEEP BREATH RIGHT THERE.
15 OPHELIA.
16
(PAUSE)
17
THE COURT: LOOKS LIKE THE PANEL NEEDS A BREAK. WE’RE
18 GOING TO ALLOW MR. DUSEK TO CONCLUDE HIS COMMENTS BEFORE LUNCH
19 BUT WE WILL HONOR THE REQUEST TO TAKE A BREAK.
20
PLEASE REMEMBER THE ADMONITION OF THE COURT NOT TO
21 DISCUSS THE EVIDENCE OR THE TESTIMONY AMONG YOURSELVES NOR WITH
22 OTHERS, NOR FORM OR EXPRESS ANY OPINIONS UNTIL THE CASE IS
23 SUBMITTED TO YOU. LET’S BE BACK BY QUARTER TO 12:00, PLEASE.
24
(AT 11:32 A.M. THE COURT WAS IN

RECESS UNTIL 11:45 A.M.)

Related Posts :