28084 – August 28th 2002 – penalty phase – David Westerfield trial – afternoon 2

SAN DIEGO, CALIFORNIA, WEDNESDAY, AUGUST 28, 2002 (afternoon 2)


Penalty phase August 28 th 2002 – 4


Brenda Van Dam (Danielle’s mother)


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1 THE COURT: WELL, IT’S GOOD TO HAVE YOU ALL BACK.
2 WELCOME BACK, LADIES AND GENTLEMEN.
3 ALL RIGHT. MR. DUSEK.
4 MR. DUSEK: BRENDA VAN DAM.
5 THE COURT: ALL RIGHT.
6 MA’AM, YOU’RE STILL UNDER OATH, SO YOU CAN KINDLY
7 RESUME YOUR SEAT ON THE WITNESS STAND.
8
9 -BRENDA VAN DAM, +
10 THE PEOPLE’S WITNESS, PREVIOUSLY HAVING BEEN SWORN, TESTIFIED
11 FURTHER AS FOLLOWS:
12
13 DIRECT EXAMINATION +
14 BY MR. DUSEK:
15 Q.: GOOD AFTERNOON.
16 A.: GOOD AFTERNOON.
17 Q.: MS. VAN DAM, HOW OLD ARE YOU NOW?
18 A.: THIRTY-NINE.
19 Q.: HOW OLD WERE YOU WHEN DANIELLE WAS BORN?
20 A.: THIRTY-TWO.
21 Q.: WHERE WAS SHE BORN?
22 A.: IN DALLAS, TEXAS, IN PLANO.
23 Q.: WAS THE PREGNANCY DIFFICULT?
24 A.: SHE WAS A VERY BIG BABY AND TOWARDS THE END I WAS
25 IN A LOT OF PAIN.
26 Q.: DO YOU REMEMBER THE FIRST TIME YOU GOT TO SEE HER?
27 A.: YES.
28 Q.: WHERE WAS THAT?

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1 A.: THEY HAD TO DO A “C” SECTION BECAUSE DANIELLE WAS
2 SO BIG, AND WHEN THEY TOOK HER OUT THEY BROUGHT HER TO ME AND I
3 GOT TO SEE HER AND I WAS VERY HAPPY.
4 Q.: DO YOU RECALL BEING HERE IN SAN DIEGO WITH
5 DANIELLE?
6 A.: YES.
7 Q.: HOW DID SHE GET REGISTERED IN SCHOOL?
8 A.: I REGISTERED HER IN — WELL, SHE WENT TO
9 PENASQUITOS CHRISTIAN PRESCHOOL FOR TWO YEARS, AND THEN I
10 ENROLLED HER IN KINDERGARTEN AT MORNING CREEK.
11 Q.: YOU ACTUALLY DID THAT?
12 A.: YES.
13 Q.: HOW FAR AWAY IS THAT SCHOOL FROM YOUR HOUSE AT THE
14 TIME?
15 A.: ABOUT A MILE, MILE AND A HALF.
16 Q.: HOW DID SHE GET OVER TO THAT SCHOOL IN
17 KINDERGARTEN?
18 A.: I DROVE HER.
19 Q.: EVERY DAY?
20 A.: EVERY DAY.
21 Q.: DID YOU GET INVOLVED IN HER CLASSROOM ACTIVITIES IN
22 KINDERGARTEN?
23 A.: YES.
24 Q.: HOW?
25 A.: I VOLUNTEERED EVERY — IT WAS ACTUALLY EVERY
26 THURSDAY, AND I WOULD VOLUNTEER FOR ALL THE PARTIES, AND WHEN
27 THEY WENT ON FIELD TRIPS I WOULD CHAPERONE AND TAKE CHILDREN IN
28 MY VEHICLE.

10058

1 Q.: WHAT WOULD YOU DO WHEN YOU WOULD VOLUNTEER? WHAT
2 WERE YOUR TASKS?
3 A.: HER TEACHER AT THE TIME WOULD PUT TOGETHER A LESSON
4 FOR THAT DAY FOR EACH PARENT AND WE WOULD TAKE GROUPS OF
5 CHILDREN AND GO OVER THE LESSON WITH THEM.
6 Q.: HOW DID DANIELLE REACT TO YOU BEING IN THE
7 CLASSROOM?
8 A.: SHE LOVED ME BEING IN THE CLASSROOM.
9 Q.: HOW COULD YOU TELL?
10 A.: ‘CAUSE SHE WOULD RUN UP AND HUG ME AND SHE WANTED
11 TO SHOW ME ALL OF HER WORK.
12 Q.: DID SHE EVENTUALLY GET USED TO YOU BEING THERE?
13 A.: YES.
14 Q.: HOW ABOUT IN FIRST GRADE, WHERE DID SHE GO TO
15 SCHOOL?
16 A.: CREEKSIDE ELEMENTARY.
17 Q.: THAT WAS A DIFFERENT SCHOOL?
18 A.: YES, IT’S NEW.
19 Q.: WHY DID SHE TRANSFER?
20 A.: IT’S CLOSER TO OUR HOME.
21 Q.: IS THAT THE ONE THAT’S JUST A SHORT DISTANCE AWAY?
22 A.: YES.
23 Q.: DID YOU GET INVOLVED IN HER CLASSROOM ACTIVITIES
24 WHEN SHE WAS IN FIRST GRADE?
25 A.: YES, I DID.
26 Q.: HOW SO?
27 A.: I VOLUNTEERED EVERY WEDNESDAY, AND I VOLUNTEERED
28 FOR EVERY PARTY AND WHEN THEY WOULD GO ON FIELD TRIPS I WOULD

10059
1 CHAPERONE.
2 Q.: DID YOU HAVE A JOB OUTSIDE THE HOME DURING THAT
3 YEAR?
4 A.: NO, I DID NOT.
5 Q.: YOU WERE A STAY-AT-HOME MOM?
6 A.: YES.
7 Q.: HOW DID SHE LIKE FIRST GRADE?
8 A.: SHE LOVED SCHOOL. SHE’S ALWAYS LOVED SCHOOL.
9 Q.: DID YOU HAVE ANY TROUBLE GETTING HER TO GO TO
10 SCHOOL?
11 A.: NO.
12 Q.: HOW ABOUT SECOND GRADE, WHERE DID SHE GO?
13 A.: CREEKSIDE ELEMENTARY.
14 Q.: SAME SCHOOL?
15 A.: YES.
16 Q.: BEFORE THE KIDS AND SPECIFICALLY DANIELLE WOULD
17 START SCHOOL, WOULD THERE BE ANY PREPARATIONS THAT YOU WOULD BE
18 INVOLVED IN WITH THE CHILDREN?
19 A.: YES.
20 Q.: WHAT?
21 A.: WELL, EACH MORNING I WOULD GO INTO EACH OF THEIR
22 ROOMS, AND MY WAY OF WAKING THEM UP IS I WOULD LAY DOWN NEXT TO
23 THEM AND TALK TO THEM UNTIL THEY WERE AWAKE. IT TOOK ABOUT 10
24 MINUTES WITH EACH CHILD. AND THEN THEY KNEW THEIR ROUTINE.
25 THEY HAD TO GET UP AND GET DRESSED, BRUSH THEIR TEETH, WE WOULD
26 PACK LUNCHES AND THEY’D EAT BREAKFAST AND THEN THEY’D GO TO
27 SCHOOL.
28 Q.: SCHOOL JUST STARTED NOW FOR THIS YEAR, DIDN’T IT?

10060
1 A.: YES.
2 Q.: WERE THERE ANY PROCEDURES OR THINGS THAT YOU WOULD
3 DO IN ANTICIPATION OF THE FIRST DAY OF SCHOOL?
4 A.: WE WOULD ALWAYS GO CLOTHES SHOPPING AND PURCHASE
5 SCHOOL SUPPLIES.
6 Q.: WE BEING WHO?
7 A.: I WOULD GO WITH EACH OF THE CHILDREN. WE WOULD ALL
8 GO AT THE SAME TIME.
9 Q.: WHAT KIND OF STUFF WOULD YOU BUY?
10 A.: WELL, DANIELLE WAS REALLY INTO DRESSES AND SHE WAS
11 A REALLY GIRLIE GIRL, AND SO SHE WOULD PICK OUT LOTS OF
12 BEAUTIFUL THINGS THAT SHE WANTED. AND, OF COURSE, THE BOYS ARE
13 JUST PANTS AND T-SHIRTS, SO THAT WAS PRETTY EASY.
14 Q.: DID YOU DO THAT THIS YEAR WITH THE BOYS?
15 A.: YES, I DID.
16 Q.: HOW DID DANIELLE DO IN SCHOOL ACADEMICALLY?
17 A.: SHE WAS WONDERFUL. SHE WAS LEARNING TO READ VERY
18 WELL. FOR A WHILE SHE WROTE HER LETTERS BACKWARDS AND HER
19 NUMBERS, AND I WAS REAL WORRIED ABOUT IT, AND SO I WOULD WORK
20 WITH HER VERY HARD ON THAT, BECAUSE SHE WOULD WRITE SOME OF THEM
21 BACKWARDS AND IT — IT WAS GETTING TO WHERE SHE DIDN’T DO IT ANY
22 MORE.
23 Q.: WHEN WAS SHE DOING THAT?
24 A.: IN KINDERGARTEN.
25 Q.: DID SHE GET GOOD REPORT CARDS?
26 A.: YES.
27 Q.: WITH LETTERS?
28 A.: ACTUALLY, NO, THEY HAVE A DIFFERENT SYSTEM NOW.

10061

1 THEY DO — THEY HAVE DIFFERENT LEVELS THAT THEY NEED TO EXCEED
2 TO GO TO THE NEXT GRADE AND THEY CHECK THEM AND THEN THEY GIVE
3 THEM PLUSES OR MINUSES.
4 Q.: SHE DIDN’T GET TOP GRADES IN EVERY CLASS, DID SHE?
5 A.: NOT IN EVERYTHING BUT SHE WAS VERY GOOD AND SHE WAS
6 VERY DEDICATED TO IT.
7 Q.: WHAT WERE HER STRONGEST SUBJECTS?
8 A.: SHE LOVED WRITING. I HAVE ALL OF HER JOURNALS FROM
9 KINDERGARTEN THROUGH THE LAST ONES THAT SHE WROTE, AND I KEEP
10 THEM IN A BOX IN MY CLOSET. EACH ONE OF MY CHILDREN HAVE A BOX
11 IN THE CLOSET WHERE I KEEP ALL THEIR MEMEMTOS.
12 Q.: HOW WAS HER BEHAVIOR AT SCHOOL?
13 A.: SHE WAS VERY LOVING AND KIND. SHE ALWAYS CARED
14 ABOUT HOW OTHER PEOPLE FELT. AND I’VE ALWAYS — I’VE ALWAYS
15 TOLD THEM TO TREAT OTHERS HOW YOU WOULD WANT TO BE TREATED, AND
16 SO SHE WAS JUST VERY NICE AND LOVING TO PEOPLE.
17 Q.: WHAT WERE HER BEST SUBJECTS?
18 A.: I WOULD THINK WRITING AND MATH.
19 Q.: WHO HELPED HER WITH THE MATH?
20 A.: DADDY.
21 Q.: WHY NOT YOU?
22 A.: WELL, I WOULD GIVE HER — WHAT I DID WAS I MADE
23 COPIES OF MATH SHEETS THAT I HAD GOTTEN FROM THE TEACHER, AND
24 I’D PUT A BUNCH OF COPIES IN A BIN, AND WHEN SHE CAME HOME SHE
25 HAD LIKED DOING IT ON HER OWN, SO SHE WOULD JUST GO GRAB A FEW
26 AND DO THEM AND SHE’D — I DON’T KNOW, I MEAN, I WOULD CHECK
27 THEM WITH HER. WE WOULD BOTH DO IT. WE’D KIND OF SHARE THE
28 HOMEWORK.

10062

1 Q.: DID YOU HAVE TO KIND OF NUDGE HER ON OVER THERE TO
2 DO THAT?
3 A.: OH, NO. SHE WOULD COME HOME AND SHE WOULD SAY
4 MOMMY, CAN I DO SOME MATH? AND I’D SAYING GRAB SOME PAGES, AND
5 SHE WOULD SIT DOWN AND DO IT ON HER OWN.
6 Q.: WOULD SHE PLAY AFTER SCHOOL?
7 A.: SHE WOULD PLAY WITH HER BROTHERS AND AT NIGHT SHE
8 WOULD READ TO HER BROTHER.
9 Q.: DID SHE HAVE ANY EXTRA CURRICULAR ACTIVITIES,
10 THINGS OUTSIDE OF SCHOOL THAT SHE GOT INVOLVED IN?
11 A.: IN KINDERGARTEN SHE JOINED DAISIES.
12 Q.: WHAT’S DAISIES?
13 A.: DAISIES IS THE FIRST FORM OF BROWNIES, AND THEN
14 EVENTUALLY GO TO GIRL SCOUTS, SO SHE WANTED TO JOIN DAISIES. WE
15 JOINED DAISIES, AND THEN IN FIRST GRADE SHE BRIDGED TO BROWNIES
16 AND SHE TOOK BALLET AND TAP.
17 Q.: LET’S STICK WITH THE BROWNIES RIGHT NOW.
18 A.: OKAY.
19 Q.: WERE YOU INVOLVED IN HER PARTICIPATION THERE AT
20 ALL?
21 A.: YES, I WAS. I WOULD HELP WHEN I COULD IN THE
22 MEETINGS. I DID A LOT OF THE STUFF FROM HOME, ORGANIZING TRIPS
23 AND I WAS THE COOKIE MOM.
24 Q.: WHAT’S THAT MEAN?
25 A.: WELL, WHEN ALL THE COOKIES ARE SOLD, ALL THE
26 PAPERWORK COMES TO ME. I HAD TO ADD IT ALL UP AND SUBMIT IT,
27 AND THEN WHEN ALL THE COOKIES ARE DELIVERED ALL THE COOKIES GOT
28 PUT INTO MY GARAGE. I HAD TO SEPARATE OUT ALL THE ORDERS, GIVE

10063
1 THEM TO EACH INDIVIDUAL GIRL TO DELIVER.
2 Q.: DID YOU GET INVOLVED IN ANY FURTHER ASPECTS OF THE
3 DAISIES AND BROWNIE PART OF HER LIFE?
4 A.: I WENT ON ALL OF HER FIELD TRIPS AND I DID AS MUCH
5 AS I COULD WITH HER BECAUSE SHE LOVED BEING WITH ME.
6 Q.: ALL RIGHT.
7 WAS SHE INVOLVED IN MUSIC AT ALL?
8 A.: SHE LOVED MUSIC, AND ABOUT EIGHT WEEKS BEFORE SHE
9 WAS TAKEN SHE SHOWED AN INTEREST IN PLAYING PIANO.
10 Q.: HOW COULD YOU TELL?
11 A.: SHE JUST CAME TO ME AND SAID MOMMY, I WANT TO PLAY
12 PIANO, CAN I TAKE PIANO LESSONS, AND I SAID YES.
13 Q.: DO YOU HAVE A PIANO IN THE HOUSE?
14 A.: WE DON’T.
15 Q.: DO YOU KNOW WHERE SHE GOT THE INTEREST IN THE
16 PIANO?
17 A.: I THINK FROM SCHOOL. THEY HAVE A PIANO AT SCHOOL
18 AND THEY HAD A SHOW AND SOMEBODY PLAYED PIANO DURING THE SHOW.
19 Q.: DID YOU DO ANYTHING TO ENCOURAGE HER INTEREST IN
20 THE PIANO?
21 A.: I TOLD HER THAT I WOULD CHECK INTO LESSONS FOR HER
22 AND, FORTUNATELY, WE HAD SOMEONE TWO DOORS DOWN WHO WAS GIVING
23 LESSONS.
24 Q.: HOW LONG WAS SHE TAKING THOSE BEFORE YOU LOST HER?
25 A.: SHE WAS TAKING THEM ABOUT EIGHT WEEKS.
26 Q.: HOW OFTEN?
27 A.: ONCE A WEEK.
28 Q.: HOW GOOD WAS SHE?

10064

1 A.: SHE WAS PRETTY GOOD. SHE WAS VERY DEDICATED AND
2 SHE WOULD PRACTICE ON HER OWN.
3 Q.: DID SHE HAVE ANY INTEREST IN DANCE?
4 A.: SHE LOVED BALLET AND TAP.
5 Q.: DID SHE PARTICIPATE?
6 A.: YES, SHE DID.
7 Q.: HOW?
8 A.: SHE WAS IN BALLET AND TAP FOR ABOUT A YEAR AND A
9 HALF AND SHE PARTICIPATED IN A RECITAL.
10 Q.: DO YOU REMEMBER WHEN THAT WAS?
11 A.: SHE WAS FIVE AT THE TIME.
12 Q.: DID YOU GET TO SEE IT?
13 A.: YES.
14 Q.: WHERE WAS IT?
15 A.: IT WAS IN THE ESCONDIDO PERFORMING ARTS CENTER.
16 Q.: WHAT DID SHE HAVE TO DO?
17 A.: WELL, IN ORDER TO PARTICIPATE YOU HAVE TO GO TO
18 THREE REHEARSALS. YOU COULD TAKE THEM UP THERE, AND THEY’RE
19 ABOUT THREE, FOUR HOURS. THEN IT’S TWO NIGHTS OF SHOWS AND YOU
20 BUY THEIR COSTUME, YOU HAVE TO DO THEIR HAIR AND EVERYTHING, AND
21 THEN THEY GO ON STAGE AND THEY PERFORM.
22 Q.: HOW DID SHE REACT TO HAVING TO GO ON STAGE?
23 A.: DURING THE REHEARSALS SHE WAS A LITTLE HESITANT AND
24 NERVOUS. BUT WHEN SHE FIRST CAME OFF THE STAGE THE FIRST NIGHT
25 THAT SHE DID HER SHOW, SHE RAN UP TO ME AND SAID MOMMY, I LOVE
26 DOING THAT AND I WANT TO DO IT AGAIN.
27 Q.: HOW WAS SHE?
28 A.: SHE WAS VERY GOOD. IT WAS VERY CUTE.

10065

1 Q.: DID SHE GET INVOLVED WITH ANY OTHER DANCE PROGRAMS
2 OR TEACHING — LEARNING?
3 A.: SHE WAS IN GYMNASTICS FOR A LITTLE WHILE. SHE TOOK
4 THAT AT THE SCHOOL IN THE ENRICHMENT PROGRAM.
5 Q.: WE HEARD A LITTLE BIT ABOUT T-BALL. WAS SHE
6 INVOLVED IN T-BALL?
7 A.: SHE WAS INVOLVED IN T-BALL. SHE WOULD COME AND
8 WATCH ME PLAY SOFTBALL AND SHE SHOWED AN INTEREST IN T-BALL, SO
9 I SIGNED HER AND DYLAN UP FOR THE SAME TEAM. AND I WAS ONE OF
10 THE COACHES AND SHE REALLY WAS AT FIRST INTERESTED IN IT BUT, BY
11 THE END OF THE SEASON, I MEAN, AFTER KICKING THE DIRT AROUND AND
12 IT WAS A LITTLE BORING SHE DIDN’T WANT TO DO IT.
13 Q.: SO SHE JUST PLAYED THE ONE YEAR?
14 A.: SHE PLAYED THE ONE YEAR BUT SHE WAS LOOKING FORWARD
15 TO ACTUALLY PLAYING SOFTBALL WHEN SHE WAS OLD ENOUGH. YOU HAD
16 TO BE SEVEN.
17 Q.: LET ME ASK ABOUT ACTIVITIES AROUND THE HOUSE.
18 DID SHE GET INVOLVED IN ANY OF THE DOMESTIC CHORES?
19 A.: SHE DID. SHE WOULD STAND AT THE COUNTER — WE HAVE
20 A DISHWASHER. SHE WANTED TO WASH THE DISHES BY HAND AND SHE
21 WOULD DO THAT. AND ALSO SHE LOVED TO COOK WITH ME, SO ANY TIME
22 I WAS COOKING SHE WOULD RUN INTO THE KITCHEN AND SAY I WANT TO
23 HELP. SHE’LL PULL A CHAIR UP TO THE COUNTER, SO I HAD STARTED
24 TEACHING HER TO COOK AND READ RECIPES.
25 Q.: HOW DID YOU DO THAT?
26 A.: EACH NIGHT WHEN IT WAS TIME FOR DINNER SHE WOULD
27 COME IN, WE WOULD PICK A RECIPE, AND WE WOULD LOOK OVER IT, MAKE
28 SURE WE HAD ALL THE INGREDIENTS, AND THEN I WOULD JUST — I WAS

10066
1 JUST TEACHING HER HOW TO COOK.
2 Q.: WOULD SHE ACTUALLY HANDS-ON DO SOME OF THE STUFF?
3 A.: YES.
4 Q.: DID SHE GET INVOLVED WITH ANY OF THE OTHER
5 HOUSEHOLD CHORES?
6 A.: SHE WOULD MAKE HER BED. HER AND DYLAN WILL MAKE
7 THEIR BED.
8 Q.: NOT DEREK?
9 A.: NOT DEREK. AND SHE ALWAYS KEPT HER ROOM TIDY. AND
10 THEY WOULD FEED THE DOG. THEY’D TAKE TURNS FEEDING THE DOG.
11 Q.: WE HAVE HEARD ABOUT THAT CHOKER THAT SHE WORE.
12 HOW LONG HAD SHE BEEN WEARING THAT?
13 A.: ABOUT TWO YEARS.
14 Q.: WAS THERE A REASON?
15 A.: SHE JUST NEVER WANTED TO TAKE IT OFF.
16 Q.: DO YOU KNOW HOW IT CAME TO BE THAT SHE WORE IT?
17 OTHER KIDS IN THE NEIGHBORHOOD OR FRIENDS OR ANYTHING?
18 A.: A FRIEND OF HERS HAD ONE AND SHE WANTED ONE, AND WE
19 WERE AT THE STORE ONE DAY AND SHE FOUND ONE AND SHE TOLD ME THAT
20 A FRIEND OF HERS HAD ONE AND SHE REALLY REALLY WANTED ONE AND SO
21 I BOUGHT IT FOR HER.
22 Q.: SHE ONLY HAD THE ONE?
23 A.: THE ONE.
24 Q.: NEVER BROKE?
25 A.: NO.
26 Q.: DID YOU HAVE RITUALS WHEN IT CAME MEAL TIMES OR BED
27 TIMES AS TO WHAT THEY WERE SUPPOSED TO DO OR NOT DO AS PART OF
28 THE FAMILY UNIT?

10067

1 A.: WELL, WE ALWAYS EAT DINNER AS A FAMILY. AND ONE OF
2 THE CHILDREN WILL SET THE TABLE. THEY WILL TOGETHER SET THE
3 TABLE, DEPENDS ON HOW THEY’RE FEELING THAT DAY. BUT I WILL ASK
4 FOR THEM TO SET THE TABLE.
5 AT BEDTIME THEY WOULD EACH GET A BATH AND GET READY
6 FOR BED, AND THEN DANIELLE WOULD READ SOME TO DYLAN, AND THEN
7 DAMON WOULD USUALLY GO UP AND READ TO DANIELLE AND I WOULD READ
8 DYLAN OR WE WOULD SWITCH.
9 Q.: HOW OFTEN WOULD THEY BATHE?
10 A.: EVERY DAY OR EVERY OTHER DAY.
11 Q.: HOW DID DANIELLE RELATE TO HER BROTHERS?
12 A.: SHE ADORED THEM. SHE REALLY LOOKED UP TO DEREK
13 BECAUSE HE’S THE BIG BROTHER. BUT HER AND DYLAN HAD A REALLY
14 SPECIAL BOND. AND I THINK SHE — I THINK DEREK TAUGHT HER
15 CERTAIN THINGS WHEN SHE WAS LITTLE AND SHE TOOK ON THE ROLE OF
16 TEACHING DYLAN. SHE WANTED TO READ TO HIM AND THEY PLAYED
17 SCHOOL A LOT AND SHE WAS ALWAYS THE TEACHER.
18 Q.: DID DYLAN SEEM TO GO ALONG WITH THAT?
19 A.: YES, HE DID.
20 Q.: DID SHE INTERACT WITH HER OLDER BROTHER DEREK IN
21 ANY SORT OF ACTIVITIES OR WHATEVER?
22 A.: THEY WOULD PLAY TOGETHER. ACTUALLY, THE THREE OF
23 THEM PLAYED VERY WELL TOGETHER AND THEY WOULD PLAY MAKE-BELIEVE
24 GAMES. THEY WOULD MAKE UP THEIR OWN GAMES. SHE WAS NEVER
25 REALLY INTO THE VIDEO GAMES, AND THAT’S WHAT DEREK’S INTO.
26 Q.: DID SHE HAVE ANY RELATIONSHIPS WITH OTHER FAMILY
27 MEMBERS OF YOURS OR DAMON’S?
28 A.: SHE WAS VERY CLOSE WITH HER GRANDPARENTS AND

10068

1 DAMON’S COUSIN. SHE LOVED GOING TO HIS HOUSE AND PLAYING WITH
2 HIS CHILDREN.
3 Q.: WHERE DO THE GRANDPARENTS LIVE?
4 A.: IN FLORIDA.
5 Q.: AND THE COUSIN?
6 A.: OCEANSIDE.
7 Q.: DID DANIELLE TALK AT ALL WITH YOU ABOUT WHAT SHE
8 WANTED TO DO, WHAT HER HOPES WERE?
9 A.: SHE TOLD ME THAT SHE WANTED TO BE A MOMMY LIKE ME.
10 AND SHE OFTEN WOULD TALK ABOUT SHARING RECIPES, AND IF WHEN SHE
11 GREW UP WOULD WE SHARE THOSE THINGS, AND WHAT IT WOULD BE LIKE
12 WHEN SHE WAS A MOMMY AND SHE ALSO TALKED ABOUT BEING A TEACHER
13 AND A VETERINARIAN.
14 Q.: SINCE SHE’S BEEN GONE HOW HAVE THE BOYS REACTED?
15 A.: WHEN SHE WAS FIRST TAKEN DEREK CAME UP TO ME AND HE
16 SAID MOMMY, I WOKE UP THAT NIGHT BUT I DIDN’T GET OUT OF BED,
17 AND IF I HAD GONE TO THE BATHROOM DO YOU THINK I COULD HAVE
18 STOPPED THAT BAD MAN FROM TAKING HER? AND I SAID I DON’T THINK
19 IT WOULD HAVE CHANGED ANYTHING. I DON’T THINK THAT YOU COULD
20 HAVE STOPPED IT.
21 Q.: HAVE YOU SEEN ANY OTHER REACTIONS, STICKING WITH
22 DEREK?
23 A.: HE HAS OUTBURSTS OF ANGER AND HE HOLDS IT INSIDE,
24 AND THEN HE GETS TO A POINT TO WHERE HE CAN’T TAKE IT ANY MORE
25 AND THE LITTLEST THING WOULD TRIGGER IT. AND WHAT I DO IS I
26 TAKE HIM UPSTAIRS, I LAY DOWN WITH HIM AND I TELL HIM IT’S OKAY
27 TO CRY, AND WE TALK ABOUT IT AND HE TELLS ME WHAT HE MISSES
28 ABOUT HER AND THAT HE REALLY MISSES HER.

10069
1 Q.: IS HE ABLE TO CRY?
2 A.: HE’S ONLY CRIED A FEW TIMES.
3 Q.: HAVE YOU NOTICED ANY CHANGE IN HIS SCHOOL BEHAVIOR
4 OR ACHIEVEMENT AT SCHOOL?
5 A.: NOT YET.
6 Q.: HOW ABOUT FROM FEBRUARY THROUGH THE END OF THE
7 YEAR?
8 A.: ACTUALLY, LAST YEAR WHEN THIS HAPPENED IN SCHOOL HE
9 STARTED WRITING MORE IN HIS JOURNAL, AND HE WROTE ABOUT THEY
10 WERE READING A BOOK ABOUT HOW SOMEBODY LOST SOMETHING, AND ALL
11 THAT HE WOULD WRITE ABOUT IS THAT HE HAD LOST HIS SISTER AND
12 THAT SOMEONE TOOK HER FROM US.
13 Q.: DOES HE SHOW SIGNS OF VIOLENCE?
14 A.: NOT REALLY BAD BUT HE DOES IN SOME WAY SHOW ANGER
15 AND HE SOMETIMES SHOWS IT TOWARDS DYLAN.
16 Q.: HOW?
17 A.: JUST BY BUGGING THE DAYLIGHTS OUT OF HIM. HE
18 DOESN’T HIT. THEY HAVE NEVER BEEN HIT AND THEY DON’T HIT.
19 Q.: HOW ABOUT DYLAN, DID HE SEEM TO BE AWARE OF WHAT
20 WAS GOING ON BACK IN FEBRUARY?
21 A.: THEY’VE ALWAYS KNOWN FROM DAY ONE THAT DANIELLE WAS
22 TAKEN AND WE ALWAYS KEPT THEM UPDATED. WE TOOK THEM TO THE
23 SEARCH CENTER. WE LET THEM SEE WHAT WAS GOING ON THERE.
24 Q.: HOW DID DYLAN REACT?
25 A.: DYLAN KNOWS. DYLAN KNOWS AND HE’S VERY UPSET. HE
26 KINDS OF REGRESSED A LITTLE BIT AND STARTED WETTING THE BED AND
27 KIND OF WENT BACK TO HIS BABY TALK.
28 Q.: HOW LONG HAD HE BEEN GOING WITHOUT WETTING THE BED?

10070
1 A.: ABOUT A YEAR.
2 Q.: HAS HE COME OUT OF IT AT ALL?
3 A.: HE’S DOING MUCH BETTER. HE STILL HAS — ONCE IN A
4 WHILE HE’LL HAVE AN ACCIDENT BUT HE’S DOING MUCH BETTER.
5 Q.: DID DANIELLE LIKE TO WRITE?
6 A.: SHE LOVED TO WRITE.
7 Q.: HOW DO YOU KNOW?
8 A.: BECAUSE SHE WOULD SIT AND OPEN HER DICTIONARY AT
9 NIGHT AND LOOK UP WORDS AND WRITE THE DEFINITION DOWN ON PAPER.
10 SHE WOULD WRITE NOTES TO ME AND TO DAMON AND SHE WOULD WRITE IN
11 HER JOURNALS AT SCHOOL ABOUT OUR VACATIONS, OUR WEEKENDS, ALL
12 THE FUN STUFF WE DID AS A FAMILY.
13 Q.: DID YOU TRY TO KEEP SOME OF HER WRITINGS?
14 A.: I HAVE THEM ALL AT HOME.
15 Q.: HAVE YOU PROVIDED US WITH SOME?
16 A.: YES.
17 MR. DUSEK: YOUR HONOR, I’VE HAD MARKED AS COURT’S
18 EXHIBIT 209 A SMALL PURPLE PLASTIC COVERED LOOKS LIKE A JOURNAL
19 WITH WRITING IN IT.
20 Q.: DO YOU RECOGNIZE THAT, MS. VAN DAM? WHAT IS IT?
21 (MARKED FOR ID: = TRIAL EX. 209-PURPLE JOURNAL)
22 A.: IT’S A PURPLE LITTLE BINDER BOOK THAT I HAD BOUGHT
23 FOR DANIELLE SO SHE COULD WRITE IN IT.
24 Q.: THE WRITING THAT’S INCLUDED IN THAT PURPLE JOURNAL,
25 IS THAT HER WRITING?
26 A.: YES.
27 Q.: WHEN WAS SHE DOING THAT?
28 A.: I’M NOT SURE. I’M NOT SURE WHEN SHE WROTE THIS

10071
1 STUFF. SHE WOULD JUST DO IT IN HER OWN TIME.
2 Q.: THE REASON FOR THE COLOR?
3 A.: PURPLE AND PINK WERE HER FAVORITE COLORS.
4 (MARKED FOR ID: = TRIAL EX. 210-ORANGE FOLDER)
5 Q.: I’VE HAD MARKED AS COURT’S EXHIBIT 210 THIS ORANGE
6 COLORED FOLDER THAT SEEMS TO HAVE SOME DOCUMENTS, WRITINGS
7 INSIDE THAT ARE ENCLOSED IN PLASTIC.
8 DO YOU RECOGNIZE WHAT WE HAVE DEPICTED THERE?
9 A.: THIS IS HER BINDER THAT WOULD GO TO SCHOOL AND
10 HOME, AND THE TEACHERS WOULD SEND HER HOMEWORK HOME IN IT OR
11 PAPERS THAT NEED TO BE SIGNED AND SENT BACK.
12 Q.: THE WRITTEN WORK THAT’S ENCLOSED WITHIN THAT ORANGE
13 BINDER IS WHAT?
14 A.: THIS IS ACTUALLY THE WORK THAT CAME HOME WITH HER
15 ON FRIDAY BEFORE SHE WAS TAKEN.
16 Q.: IT WAS WORK THAT WAS SUPPOSED TO BE COMPLETED?
17 A.: YES.
18 Q.: THAT’S ALL HER WORK?
19 A.: YES.
20 (MARKED FOR ID: = TRIAL EX. 211-DOLPHIN FOLDER)
21 Q.: AND FINALLY, I’VE HAD MARKED AS COURT’S 211 ANOTHER
22 FOLDER. IT LOOKS LIKE IT HAS A COUPLE OF DOLPHINS ON THE FRONT
23 COVER WITH SCHOOL WORK ON THE INSIDE. DO YOU RECOGNIZE WHAT WE
24 HAVE DEPICTED THERE?
25 A.: YES.
26 Q.: WHAT’S THAT?
27 A.: THESE ARE ACTUALLY WORDS THAT SHE WOULD LOOK UP IN
28 THE DICTIONARY AND SHE WROTE THE DEFINITIONS AND THESE ARE HER

10072

1 MATH PAGES THAT I COPIED FOR HER AND SHE WOULD DO. THIS ONE IS
2 ACTUALLY — THEY WERE PLAYING SCHOOL AND I GUESS THIS WAS
3 DEREK’S WORK AND SHE GAVE HIM AN “A” PLUS.
4 Q.: THIS APPEARS TO BE PAPER THAT IS KIND OF A PURPLEY
5 COLOR AND IT SAYS “DEREK IN THE UPPER RIGHT HAND CORNER?
6 A.: YES.
7 Q.: DANIELLE WAS THE TEACHER?
8 A.: SHE WAS THE TEACHER.
9 Q.: DEREK DID PRETTY GOOD ON THAT ONE, HUH?
10 A.: YES. APPARENTLY HE DREW A CARTOON, A COMIC. THIS
11 IS SOME MATH WORK THAT SHE DID ON HER OWN AND SHE WOULD WRITE
12 DOWN THE EQUATIONS HERSELF AND THEN ADD THEM UP.
13 Q.: THAT APPEARS TO BE A SINGLE PIECE OF PAPER, LOOKS
14 LIKE IT’S TORN FROM A SPIRAL NOTEBOOK?
15 A.: IT’S A SPIRAL NOTEBOOK SHE HAD AT HOME.
16 Q.: I THINK WE HEARD EARLIER ABOUT DANIELLE BEING TAKEN
17 OUT OF SCHOOL EARLY THAT LAST FRIDAY OF HER SCHOOL CAREER. IS
18 THAT WHAT HAPPENED?
19 A.: YES.
20 Q.: WHY WAS SHE TAKEN OUT EARLY?
21 A.: WE WERE PLANNING A TRIP TO ITALY ON THE 9TH OF
22 FEBRUARY.
23 Q.: WHY? WHAT WAS GOING ON?
24 A.: DAMON WAS ACTUALLY GOING THERE FOR WORK AND WE
25 DECIDED THAT WE WERE GOING TO GO AS A FAMILY.
26 Q.: IS THAT WHEN YOU WENT AND GOT THE PASSPORT PHOTOS
27 TAKEN?
28 A.: YES. I TOOK THEM OUT TO GET THOSE.

10073

1 Q.: HOW WAS DANIELLE DISCIPLINED?
2 A.: WELL, DANIELLE WAS A VERY STRONG HEADED LITTLE
3 GIRL. AND I LEARNED EARLY ON THAT THERE WERE SOME BATTLES WORTH
4 FIGHTING AND SOME THAT WEREN’T. SHE WAS VERY, VERY INDEPENDENT
5 AND I WANTED HER TO REMAIN THAT WAY BEING A WOMAN. I WANTED HER
6 TO GROW UP TO BE STRONG AND INDEPENDENT. SO WHAT I WOULD DO IS
7 I WOULDN’T TELL HER SHE COULDN’T DO SOMETHING AND JUST LEAVE IT
8 AT THAT. I CHOSE TO — I WOULD TELL HER DANIELLE, I’D PREFER
9 THAT YOU DON’T DO THAT, BUT HERE’S THREE THINGS THAT YOU CAN DO.
10 YOU CHOOSE WHICH ONE YOU PREFER TO DO.
11 AND SHE FELT GOOD ABOUT THAT BECAUSE SHE WAS MAKING
12 HER OWN CHOICE. AND THEN ALSO IF SHE DID DO SOMETHING THAT
13 DESERVED PUNISHMENT, I WOULD SEND HER TO HER BED. I WOULD ASK
14 HER TO THINK ABOUT WHAT SHE HAD DONE WRONG, HOW SHE COULD HAVE
15 DONE IT A DIFFERENT WAY, AND THEN WHEN HER TIME OUT TIME WAS
16 DONE I WOULD GO UP AND WE WOULD DISCUSS IT.
17 Q.: WOULD SHE DO ANYTHING WHILE SHE WAS UPSTAIRS
18 THINKING ABOUT HER GOOF-UPS?
19 A.: SHE WASN’T ALLOWED TO PLAY WITH HER TOYS BUT SHE
20 WAS ALLOWED TO WRITE AND SHE WOULD WRITE.
21 Q.: I THINK YOU WERE PROBABLY IN COURT WHEN WE SHOWED
22 THAT ONE LETTER TO DAMON EARLIER TODAY?
23 A.: YES.
24 Q.: HAD YOU PROVIDED US WITH THAT?
25 A.: YES.
26 Q.: THERE WAS A VIDEO PREPARED OF DANIELLE?
27 A.: YES.
28 Q.: DO WE HAVE IT HERE IN COURT?

10074
1 A.: YES, YOU DO.
2 Q.: DOES IT GO THROUGH HER LIFE?
3 A.: YES.
4 Q.: BASICALLY, WHAT WILL WE SEE IN THAT VIDEO?
5 A.: THERE’S SOME VIDEO FROM OUR TRIP TO DISNEYWORLD.
6 WE WENT CHRISTMAS OF LAST YEAR.
7 Q.: AT THE MOST RECENT CHRISTMAS?
8 A.: YES. AND IT WAS DAMON’S FAMILY AND MY FAMILY.
9 THERE WAS A WHOLE BUNCH OF US.
10 Q.: WHEN WE SEE DANIELLE IN THE VIDEO DO YOU RECALL
11 WHAT SHE WAS WEARING?
12 A.: I’M SORRY. SHE’S WEARING A RED SHIRT WITH MICKEY
13 MOUSE ON IT, AND HER AND HER AUNT HAD TO HAVE THE SAME ONE SO
14 THEY BOUGHT MATCHING SHIRTS.
15 Q.: DO WE HAVE OTHER THINGS THAT ARE SHOWN IN THAT
16 VIDEO?
17 A.: THERE ARE A COUPLE HALLOWEEN PICTURES. THERE’S
18 SOME OF HER FIRST BATH, SOME OF HER SLEEPING ON ME. I CAN’T
19 REMEMBER THE REST OF THEM.
20 Q.: WE’VE HAD OBVIOUSLY A CHANCE TO LOOK AT IT. THERE
21 APPEAR TO BE A COUPLE PEOPLE THAT ARE NOT YOU OR DAMON WITH
22 DANIELLE. WHO ARE THEY?
23 A.: DAMON’S TWO SISTERS.
24 MR. DUSEK: YOUR HONOR, WE HAVE HAD MARKED AS COURT’S
25 EXHIBIT 212 A VIDEOTAPE THAT I’VE BEEN REFERRING TO HERE. THERE
26 IS NO SOUND. WE WOULD ASK THE OPPORTUNITY TO PLAY IT AND I
27 THINK IT MIGHT ASSIST IF THE LIGHTS WERE DIMMED A BIT.
28 THE COURT: ALL RIGHT.

10075

1 IS THAT THE SAME ONE THAT I HAD PREVIOUSLY MARKED
2 200?
3 MR. CLARKE: I BELIEVE IT IS, YOUR HONOR. THIS ONE HAS
4 NO SOUND.
5 THE COURT: OKAY. ALL RIGHT. SO WE’LL MARK 212 THEN.
6 ALL RIGHT.
7 (MARKED FOR ID: = TRIAL EX. 212, VIDEOTAPE )
8 MR. DUSEK: IF WE COULD PLAY THAT THEN, YOUR HONOR?
9 THE COURT: CERTAINLY.
10 THE WITNESS: DO YOU WANT ME TO TELL YOU WHAT THEY ARE?
11 (TRIAL EXHIBIT 212, VIDEOTAPE PLAYED FOR THE JURY.)
12
13 BY MR. DUSEK:
14 Q.: MS. VAN DAM, WE JUST GOT THROUGH WATCHING THE
15 VIDEO. IT ENDED WITH HER WEARING A RED TOP THAT AT LEAST HAD
16 SOME RED IN IT. WAS THAT TAKEN FROM DISNEYLAND?
17 A.: DISNEYWORLD.
18 Q.: DISNEYWORLD IN FLORIDA?
19 A.: YES.
20 Q.: ALSO APPEARED THAT THERE WAS A TIME WHEN SHE WAS
21 WEARING A WHITE OUTFIT THAT KIND OF HAD A POINTY FLOWING SLEEVE.
22 WHERE WAS THAT?
23 A.: THAT WAS IN GRANDMA’S HOUSE.
24 Q.: WHERE WAS THAT?
25 A.: FLORIDA.
26 Q.: ON THE SAME TRIP?
27 A.: I BELIEVE SO.
28 Q.: LET ME GO BACK TO FEBRUARY OF THIS YEAR AND YOU

10076

1 DISCOVERED DANIELLE WAS MISSING. DO YOU RECALL HOW LONG IT WAS
2 UNTIL YOU FIRST HAD THE THOUGHT THAT SHE MIGHT BE DEAD?
3 A.: DAMON HAD TALKED TO ME ABOUT IT AT ONE POINT AND
4 TOLD ME THAT HE KIND OF THOUGHT THAT SHE WAS, AND I TOLD HIM I
5 COULDN’T — I COULDN’T GIVE UP THAT HOPE UNTIL I KNEW FOR SURE.
6 SO I REALLY DIDN’T BELIEVE IT UNTIL THEY CAME AND TOLD ME THEY
7 HAD FOUND HER.
8 Q.: HOW ABOUT AFTER THE DEFENDANT WAS ARRESTED AND YOU
9 MET WITH OUR OFFICE?
10 A.: WELL, BEFORE THEY ARRESTED HIM BEJERANO CALLED US
11 INTO HIS OFFICE TO LET US KNOW THAT IT WAS HAPPENING AND THE
12 REASON WHY THEY WERE ARRESTING HIM, AND WHEN HE MENTIONED
13 “BLOOD” I HAD A MAJOR BREAKDOWN BECAUSE I STILL WANTED TO
14 BELIEVE SHE WAS ALIVE.
15 Q.: AT THAT POINT SHE HAD STILL NOT BEEN FOUND, THOUGH,
16 CORRECT?
17 A.: SO I JUST THOUGHT MAYBE SHE HAD A BLOODY NOSE OR
18 SOMETHING AND THAT THEY WOULD FIND HER ALIVE.
19 Q.: THAT WAS EVEN AFTER WE HAD FILED THE MURDER
20 CHARGES?
21 A.: YES.
22 Q.: DO YOU RECALL WHERE YOU WERE WHEN YOU FOUND OUT HER
23 BODY HAD BEEN FOUND?
24 A.: MY FRIEND DIANA TALKED ME INTO GETTING A MASSAGE,
25 SO I WENT AND SHE TOOK ME AND SHE SAT OUTSIDE THE ROOM. I HAD
26 BEEN ON THE TABLE MAYBE FIVE MINUTES AND I HEARD HER PHONE RING
27 AND I KNEW RIGHT AWAY WHAT IT WAS. AND SHE OPENED THE DOOR AND
28 SHE SAID BRENDA, I HAVE TO TAKE YOU HOME BECAUSE THE SEARCH

10077

1 CENTER FOUND SOMETHING. SO I GOT DRESSED AND WE LEFT AND WE
2 WENT HOME AND WAITED.
3 Q.: THE FIRST WORD THAT YOU GOT WAS SIMPLY THAT A CHILD
4 HAD BEEN FOUND?
5 A.: YES.
6 Q.: DID YOU HOPE IT WAS YOUR CHILD?
7 A.: NO. I WANTED MY DAUGHTER TO BE ALIVE.
8 Q.: EVENTUALLY YOU RECEIVED WORD?
9 A.: YES. JUDY WOODS AND LIEUTENANT COLLINS CAME.
10 FIRST JUDY WOODS WAS THERE AND SHE WAS WAITING FOR JIM COLLINS.
11 HE WAS GOING TO THE SITE. AND HE LATER SHOWED UP AT OUR HOUSE
12 AND HE TOLD ME IT WAS HER. SHE HAD THE NECKLACE AND THE
13 EARRINGS.
14 Q.: JUDY WOODS WAS ALSO A POLICE OFFICER?
15 A.: YES.
16 Q.: WHO HAD BEEN WORKING ON THIS CASE?
17 A.: YES.
18 Q.: AFTER SHE WAS FOUND AND IDENTIFIED, YOUR FAMILY HAD
19 TO PUT TOGETHER A FUNERAL?
20 A.: YES, WE DID.
21 Q.: WHO DID THAT?
22 A.: FATHER JOSH, DAMON AND I AND THE LIBBYS, BILL AND
23 DOLLY LIBBY, WENT DOWN TO THE MORTUARY, AND WE DISCUSSED ALL THE
24 PLANS WITH THEM. AND THEN I WORKED WITH ANOTHER LADY WHO SO
25 GRACIOUSLY MADE THE FUNERAL PROGRAMS, AND THEN A GROUP OF MOMS
26 GOT TOGETHER AND PUT THOSE TOGETHER.
27 Q.: YOU AND DAMON HAD TO AT LEAST HELP PUT TOGETHER THE
28 FUNERAL?

10078
1 A.: YES. WE HAD TO PICK EVERYTHING. WE HAD TO PICK AN
2 URN FOR OUR DAUGHTER.
3 Q.: AS YOU COME AND GO FROM YOUR HOUSE DO YOU HAVE TO
4 GO BY THE DEFENDANT’S HOUSE?
5 A.: YES.
6 Q.: AS YOU LIVE IN YOUR HOUSE DO YOU GO BY DANIELLE’S
7 BEDROOM?
8 A.: YES.
9 Q.: DO YOU GO IN THERE?
10 A.: I DO.
11 Q.: WHY?
12 A.: A LOT OF TIMES I CAN’T SLEEP AT NIGHT AND I GO IN
13 THERE TO CRY. I GO IN THERE TO TRY AND FEEL HER, TRY AND SMELL
14 HER. AND JUST RECENTLY WE DECIDED THAT WE WANTED — WE WANTED
15 THE BOYS TO FEEL COMFORTABLE IN HER ROOM, SO WE HOOKED UP A
16 NINTENDO 64 IN THERE AND THEY GO IN THERE TO PLAY NOW. AND SO I
17 WANTED IT TO TRY AND BE A HAPPY ROOM. AND THE DOOR WAS BEING
18 LEFT SHUT ALL THE TIME, SO NOW THEY PLAY IN THERE.
19 Q.: HAVE YOU AND YOUR FAMILY UNDERGONE ANY COUNSELING?
20 A.: WE HAVE, AND THEN WHEN THE CASE STARTED –WHEN THE
21 TRIAL STARTED WE HAVEN’T HAD TIME TO GO BUT AS SOON AS THIS IS
22 DONE WE’RE GOING TO START BACK.
23 Q.: CAN YOU DESCRIBE YOUR LOSS?
24 A.: I DON’T KNOW WHERE TO BEGIN. SHE WAS ONE OF THE
25 MOST PRECIOUS GIFTS ANYONE WOULD EVER RECEIVE. AND I WAS SO
26 HAPPY THE DAY I FOUND OUT I WAS PREGNANT BECAUSE BEFORE I HAD A
27 MISCARRIAGE BETWEEN DYLAN AND DEREK AND I SO WANTED ANOTHER
28 CHILD. AND I WAS SO HAPPY WHEN I FOUND OUT I WAS PREGNANT AND,

10079
1 I DON’T KNOW. I JUST — IT’S TOO HARD TO EXPLAIN.
2 MR. DUSEK: THAT WILL BE FINE. THANK YOU, MA’AM.
3 THE COURT: ALL RIGHT.
4 CROSS-EXAMINATION.
5 MR. FELDMAN: NO QUESTIONS.
6 THE COURT: ALL RIGHT. MA’AM, YOU CAN RESUME YOUR SEAT
7 IN THE AUDIENCE. I JUST WANT TO REMIND YOU OF THE ADMONITION
8 NOT TO DISCUSS YOUR TESTIMONY UNTIL THE MATTER’S CONCLUDED,
9 OKAY?
10 THE WITNESS: OKAY.
11 THE COURT: ALL RIGHT. THANK YOU.
12 MR. DUSEK: WE WOULD BE ASKING FOR ADMISSION OF THE ITEMS
13 THAT HAVE BEEN MARKED TODAY.
14 THE COURT: ALL RIGHT. WE’LL DISCUSS THAT. THAT’S THE
15 CONCLUDING MATTER FOR THE DAY?
16 MR. DUSEK: YES, YOUR HONOR.
17 THE COURT: ALL RIGHT. READY TO GO AT 9:00 TOMORROW?
18 MR. BOYCE: YES, YOUR HONOR.
19 MR. FELDMAN: YES, YOUR HONOR.
20 THE COURT: ALL RIGHT.
21 LADIES AND GENTLEMEN, WE’RE GOING TO COMMENCE WITH
22 THE DEFENSE PRESENTATION FIRST THING TOMORROW MORNING. AS YOU
23 ARE DISCOVERING, JUST LIKE IN THE TRIAL, SOMETIMES THINGS END UP
24 BEING SHORTER THAN ANTICIPATED. WE’RE ANTICIPATING GOING INTO
25 THE AFTERNOON TOMORROW BUT WHETHER WE HAVE A FULL DAY UNTIL 4:30
26 OR NOT I CAN’T SAY AT THIS POINT IN TIME.
27 PLEASE REMEMBER THE ADMONITION OF THE COURT NOT TO
28 DISCUSS ANY OF THE EVIDENCE OR TESTIMONY, NOR FORM NOR EXPRESS

10080
1 ANY OPINIONS OR THE CASE UNTIL IT IS SUBMITTED TO YOU FOR
2 DECISION.
3 TONIGHT IS A COUCH POTATO’S DREAM. YOU GOT THE
4 PADS AT 5:00, THE CHARGERS AT 6:00. I MEAN, THE REMOTE’S GOING
5 TO BE GOING BACK AND FORTH. SO ANYWAY, HAVE A PLEASANT EVENING.
6 HAVE A SAFE EVENING. WE’LL SEE YOU ALL AT 9 O’CLOCK TOMORROW
7 MORNING AT THE NORMAL MEETING PLACE. HAVE A PLEASANT EVENING.
8 (AT 3:00 P.M. THE JURY WAS EXCUSED
AND THE FOLLOWING PROCEEDINGS WERE HAD:)
9
10 THE COURT: OKAY. THE RECORD SHOULD REFLECT THE JURORS
11 AND ALTERNATES HAVE LEFT THE COURTROOM.
12 COUNSEL, I’LL NOTE THAT EXHIBIT 200 THAT THE COURT
13 REVIEWED DURING PRETRIAL, PREPENALTY PHASE DISCUSSIONS, THAT
14 WILL NOT BE ADMITTED. IT WILL KEEP ITS IDENTIFICATION NUMBER
15 FOR PURPOSES OF THE RECORD, HOWEVER.
16 A NUMBER OF DIFFERENT OBJECTIONS HAD PREVIOUSLY
17 BEEN RAISED, BUT OTHER THAN REAFFIRMING THOSE ARE THERE ANY
18 OBJECTIONS TO EXHIBITS 201 THROUGH 212?
19 MR. BOYCE: NO, YOUR HONOR.
20 THE COURT: ALL RIGHT. THE OBJECTIONS HAVE PREVIOUSLY
21 BEEN NOTED ON A NUMBER OF ITEMS, INCLUDING THE PHOTOBOARDS, THE
22 TAPE-RECORDING OF MR. WESTERFIELD’S INTERVIEW AND SO FORTH.
23 THOSE WILL ALL BE PRESERVED TO KEEP THE RECORD INTACT. THE
24 RECORD WILL REFLECT THAT THOSE ITEMS WILL BE ADMITTED.
25 (RECEIVED EVID: ^ TRIAL EXS. 201 THROUGH 212)
26 MR. CLARKE: YOUR HONOR, I’M SORRY. 208A, I’M NOT SURE
27 WE PHYSICALLY MARKED A TRANSCRIPT.
28 THE COURT: JUST MAKE SURE AND GIVE A COPY TO PEG. THAT

10081
1 WILL —
2 MR. CLARKE: NOT BE ADMITTED.
3 THE COURT: THAT WILL NOT BE ADMITTED. BUT IT WILL BE
4 LODGED WITH THE COURT JUST IN CASE THE JURY FOR ONE REASON OR
5 ANOTHER NEEDS TO SEE IT. ALL RIGHT. WE’LL BE IN RECESS —
6 (MARKED FOR ID: = TRIAL EX. 208A-TRANSCRIPT OF INTERVIEW)
7 MR. FELDMAN: YOUR HONOR?
8 THE COURT: YES.
9 MR. FELDMAN: THE PROSECUTION FILED A PLEADING THAT WE
10 WISH TO ADDRESS THE COURT ON BUT IT CONCERNS EVIDENTIARY
11 MATTERS, SO WHENEVER IT’S CONVENIENT TO THE COURT. THIS
12 AFTERNOON —
13 THE COURT: IT’S PROBABLY JUST AS CONVENIENT TO WORK WITH
14 IT RIGHT NOW SINCE WE HAVE THE TIME AND THE JURY’S COMING BACK
15 AT 9 O’CLOCK TOMORROW MORNING.
16 LADIES AND GENTLEMEN, THE PEOPLE HAVE FILED POINTS
17 AND AUTHORITIES REGARDING AN ISSUE THAT IS GOING TO TAKE EFFECT
18 OR MAY NOT TAKE EFFECT. I HAVE NO WAY OF KNOWING UNTIL I HEAR
19 ALL OF THE EVIDENCE. THESE DEAL WITH EVIDENTIARY ISSUES.
20 ONCE AGAIN, ON BEHALF OF MS. CUMMINS AND HER
21 COLLEAGUES, I’LL NOTE AN OBJECTION BY THE MEDIA TO THE CLOSED
22 NATURE OF THE HEARING. THAT OBJECTION WILL BE OVERRULED AND AT
23 THIS TIME WE’LL CLOSE THIS PROCEEDING TO MEMBERS OF THE MEDIA
24 AND THE PUBLIC.
25 (THE MEDIA AND PUBLIC WERE EXCLUDED FROM THE COURTROOM.)
26 (SEALED PROCEEDINGS FOLLOW THIS DATE, PAGES 10083 THROUGH 10095,
27 BOUND IN SEPARATE VOLUME 57A. UNSEALED PROCEEDINGS CONTINUE ON
28 PAGE 10096. NOTHING OMITTED.)

10082
1
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15
16
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18
19
20
21
22
23
24
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27
28

9240
1 (THE FOLLOWING PROCEEDINGS WERE HELD IN
OPEN COURT IN THE PRESENCE OF THE JURY:)
2
3 THE COURT: ALL RIGHT.
4 IN THE WESTERFIELD MATTER THE RECORD WILL REFLECT
5 WE’RE PRESENT IN OPEN COURT HAVING CONCLUDED THE IN-CAMERA
6 HEARING.
7 MR. DUSEK, MAYBE SOME DAY YOU’RE GOING TO GET TO
8 SIT UP HERE, BUT OCCASIONALLY JUDGES GET BOXED IN. MR. FELDMAN
9 HAS BEEN VERY UP FRONT WITH ME AND, GIVEN THE SEVERITY OF THE
10 IMPLICATIONS OF THE COURT’S RULINGS ON ISSUES SUCH AS THIS, I
11 HAVE DECIDED TO DO THE FOLLOWING.
12 MR. FELDMAN ADVISES ME THAT HE WILL KNOW ON SUNDAY
13 WHETHER OR NOT THIS WITNESS WILL BE CALLED. IF THE WITNESS IS
14 CALLED, I HAVE TOLD HIM THAT THE WITNESS WILL PREPARE A FULL
15 REPORT. IT WILL BE DELIVERED TO YOU ON MONDAY. YOU WILL HAVE
16 ALL DAY MONDAY TO WORK WITH THAT REPORT, AND THE WITNESS WILL BE
17 PUT ON THE STAND FIRST THING TUESDAY MORNING.
18 WHEN THE WITNESS IS CONCLUDED, I HAVE BEEN ADVISED
19 BY MR. FELDMAN THE DEFENSE INTENDS TO CALL NO FURTHER WITNESSES.
20 SO IF THAT SCENARIO PLAYS OUT, THE WITNESS WILL BE EXAMINED ON
21 TUESDAY, DEFENSE WILL REST AND THE COURT WILL INSTRUCT. NO
22 ARGUMENT.
23 MR. FELDMAN FURTHER ADVISES ME THAT IF IN
24 CONSULTATION WITH THE EXPERT THEY DETERMINE THEY ARE NOT GOING
25 TO CALL HIM, YOU WILL BE ADVISED ON SUNDAY, MONDAY AT THE
26 LATEST. IF THAT SCENARIO ARISES, IT WILL BE INTENT OF THE COURT
27 FIRST THING TUESDAY MORNING TO INSTRUCT AND THEN YOU WILL ARGUE,
28 BUT YOU WILL HAVE MONDAY TO PREPARE BECAUSE YOU WILL BE ADVISED

9241
1 ON SUNDAY THE WITNESS IS NOT GOING TO BE CALLED.
2 I RECOGNIZE THE POSITION THIS PUTS YOU IN.
3 HOWEVER, GIVEN THE HISTORY OF ALL OF THE EXPERTS IN THIS
4 PARTICULAR CASE, AND THE AMOUNT OF TIME BOTH SIDES HAVE HAD TO
5 WORK WITH THE REPORTS THAT HAVE BEEN GENERATED BY THESE EXPERTS,
6 BY GIVING YOU A FULL DAY ON MONDAY TO WORK WITH IT, IT APPEARS
7 TO ME THAT YOU SHOULD BE PREPARED TO CROSS-EXAMINE THE WITNESS.
8 AND I AM GOING TO NOTE THIS ALL BEING OBVIOUSLY OVER THE
9 OBJECTION OF THE PEOPLE.
10 MR. DUSEK: FRANKLY, I DO NOT WANT TO BE A JUDGE. MY
11 REQUEST, AND I THINK IT’S A REASONABLE ONE — I WILL NOT ARGUE
12 WITH THE COURT’S DECISION. I UNDERSTAND THE NATURE OF THE CASE.
13 HOPEFULLY, PEOPLE WILL BE LOOKING OVER OUR SHOULDER IN THIS
14 CASE.
15 BUT WHAT I DO REQUEST IS THE NAME OF THAT PERSON
16 NOW, WHETHER HE CALLS THAT INDIVIDUAL, IT DOES NOT GIVE US ANY
17 ADVANTAGE, UNFAIR ADVANTAGE IF WE HAVE THE NAME NOW. WE CAN
18 START DOINGS SEARCHES ON THAT INDIVIDUAL, TO CONTACT PEOPLE
19 DURING WORKING HOURS ON THIS COAST AND THE EAST COAST, TO FIND
20 OUT WHO THIS INDIVIDUAL IS, GATHERING TRANSCRIPTS, THE TYPES OF
21 THINGS BOTH SIDES WANT TO DO WHEN A NEW PERSON IS INTRODUCED
22 INTO A CASE. IF THAT INDIVIDUAL DOES NOT TESTIFY THE DEFENSE IS
23 NOT HARMED. WE CERTAINLY WILL NOT GO OUT AND CALL HIM AND BRING
24 HIM IN. THE CASE WILL END IN ITS NORMAL COURSE.
25 THE COURT: WELL, OF COURSE, YOU WON’T BE CALLING ANY
26 MORE WITNESSES, SO THAT I THINK I CAN BE ASSURED OF.
27 MR. FELDMAN, YOUR RESPONSE.
28 MR. FELDMAN: THE COURT —

9242
1 THE COURT: NOT DONE IN OPEN COURT, DONE IN PRIVATE TO
2 MR. DUSEK.
3 MR. FELDMAN: JUST CONSISTENT WITH THE POLICY ON
4 DISCLOSURES, IT’S GENERALLY BEEN THE NIGHT BEFORE. I’M TRYING
5 TO ACCOMMODATE COUNSEL BUT WE’VE BEEN GETTING THE INFORMATION AT
6 THE LAST POSSIBLE MOMENT. WE DIDN’T KNOW OF CERTAIN OF THEIR
7 WITNESSES.
8 WHAT YOU DIRECT ME TO DO, YOUR HONOR, I WILL
9 CERTAINLY COMPLY WITH. I BELIEVE THAT I ADVISED MR. CLARKE MY
10 INTENT WAS TO CALL A FORENSIC ANTHROPOLOGIST AND I THINK THAT —
11 I’M PRETTY SURE I DID MAKE THAT STATEMENT TO MR. CLARKE AND, IF
12 NOT, I’D CERTAINLY NOW ON THE RECORD. AND SO AT LEAST THEY HAVE
13 GENERALLY KNOWLEDGE OF WHERE WE’RE HEADED.
14 THE COURT: ALL RIGHT.
15 WELL, I THINK IT’S NOT AN INAPPROPRIATE REQUEST TO
16 DO IT IN PRIVATE, BECAUSE IF YOU CALL HIM THE GENERAL BACKGROUND
17 INVESTIGATION CAN BE CONCLUDED. IF YOU DON’T CALL HIM THE
18 PEOPLE ARE NOT IN A POSITION TO CALL HIM, SO THERE’S NO HARM NO
19 FOUL.
20 SO I WILL INSTRUCT YOU AT AN APPROPRIATE TIME THIS
21 AFTERNOON TO PRIVATELY REPRESENT TO MR. CLARKE AND MR. DUSEK WHO
22 THIS INDIVIDUAL IS, AND THEN WE’LL ABIDE BY THE SCHEDULE THAT WE
23 HAVE DISCUSSED, AND I WILL INFORM THE JURY AS TO WHERE WE’RE
24 HEADED AND THE POSSIBILITIES.
25 BUT WE WILL TOMORROW DO ALL OF THE JURY INSTRUCTION
26 WORK SO THAT WILL BE CONCLUDED, SO THAT ON TUESDAY IF YOU DON’T
27 CALL THE WITNESS WE’LL IMMEDIATELY GO INTO ARGUMENT. IF NOT, IT
28 WILL BE THE UNDERSTANDING THAT FIRST ARGUMENT WILL BE WEDNESDAY

9243
1 MORNING.
2 OKAY. LET’S GET THE JURY.
3 THE BAILIFF: YES, YOUR HONOR.
4
5 (AT 3:50 P.M. THE JURY ENTERED THE COURTROOM
AND THE FOLLOWING PROCEEDINGS WERE HAD:)
6
7 THE COURT: WELCOME BACK, LADIES AND GENTLEMEN. YOU SEE,
8 YOU THOUGHT I GAVE YOU A BIG LONG BREAK AND IT TURNED OUT YOU
9 WERE IN A BREAK LONGER THAN I THOUGHT.
10 LADIES AND GENTLEMEN, MY HOPE HAD BEEN WHEN I
11 RESUMED THE BENCH THAT I’D BE ABLE TO GIVE YOU A VERY CLEAR
12 PICTURE AS TO WHERE WE’RE HEADED NEXT WEEK BECAUSE, AS YOU KNOW,
13 TOMORROW WE’RE OFF BECAUSE IT IS FRIDAY. THE LAWYERS AND I ARE
14 GOING TO BE WORKING ON SOME THINGS THAT WE CAN DO THAT DON’T
15 INVOLVE YOU BUT YOU FOLKS WILL NOT BE NEEDED.
16 IN LOOKING AT IT NOW, I’D SAY OUR SCHEDULE IS ABOUT
17 AS CLEAR AS MUD, PARDON THE PUN. HERE’S WHERE WE’RE AT. I
18 INDICATED THIS TO YOU EARLIER SO I’M SURE IT’S NOT A SURPRISE TO
19 YOU, ALTHOUGH IT SEEMS TO BE A SURPRISE TO THE PUNDENTS THAT
20 COMMENT ON HOW THIS TRIAL IS GOING.
21 WHEN WE’RE DEALING WITH THE POTENTIAL FOR EXPERT
22 WITNESSES WE HAVE TO DEAL WITH THEIR SCHEDULES. AND, AS YOU
23 HAVE DISCOVERED THROUGH ALL OF THE WITNESSES THAT HAVE TESTIFIED
24 IN THESE PROCEEDINGS, THESE PARTICULAR EXPERTS AND THEIR
25 EXPERTISE TAKES THEM ALL OVER THE WORLD AND THEY’RE NOT ALWAYS
26 LOCATED HERE IN CALIFORNIA. VERY FEW OF THEM ARE, WHICH
27 NECESSITATES TRAVELING AND ALL KINDS OF ARRANGEMENTS THAT NEED
28 TO BE MADE.

9244
1 MONDAY WE WILL NOT BE IN SESSION ON THIS MATTER.
2 ON TUESDAY I ANTICIPATE THE DEFENSE WILL REST. THEY MAY REST
3 WITH ONE ADDITIONAL WITNESS. WE DON’T KNOW FOR SURE IF THAT’S
4 GOING TO OCCUR. BUT ON TUESDAY THERE ARE TWO SCENARIOS. ONE IS
5 THE DEFENSE CALLS ITS LAST WITNESS AND RESTS, AND I INSTRUCT YOU
6 ON THE LAW THAT IS APPLICABLE TO A CASE SUCH AS THIS, AND WE
7 RECESS FOR THE DAY WITH CLOSING ARGUMENTS TO START WEDNESDAY
8 MORNING. THAT’S A POSSIBILITY.
9 THE SECOND POSSIBILITY IS THAT THE DEFENSE WILL NOT
10 CALL OR NOT BE IN A POSITION TO CALL ANY MORE WITNESSES AND WILL
11 REST FIRST THING TUESDAY MORNING. IF THAT SHOULD OCCUR, I WILL
12 IMMEDIATELY GIVE YOU THE LAW THAT APPLIES TO THE CASE AND THE
13 PEOPLE WILL HAVE THEIR OPENING ARGUMENT ON TUESDAY.
14 THE BOTTOM LINE IS WE’RE ON THE HOME STRETCH,
15 FOLKS. THE END IS IN SIGHT AND I AM ANTICIPATING YOU WILL BE IN
16 DELIBERATION NEXT WEEK. NEXT FRIDAY, BECAUSE OF THINGS WE HAVE
17 HEARD FROM A COUPLE OF YOU AND THE COURT’S OWN SCHEDULE, WE WILL
18 NOT BE IN SESSION. SO EVEN IF YOU’RE IN DELIBERATION, ON NEXT
19 FRIDAY YOU WILL NOT BE IN SESSION. SO YOU’LL BE ABLE TO GO TO
20 WORK OR TAKE CARE OF YOUR PERSONAL ITEMS.
21 I WILL HAVE COMPLETE INSTRUCTIONS FOR OUR SIX
22 ALTERNATES AT THE TIME THAT THE 12 PRIMARY JURORS GO INTO
23 DELIBERATION. SO I WILL HAVE A COMPLETE DISCUSSION WITH YOU,
24 FOLKS, AS TO THE OPTIONS THAT YOU WILL HAVE NEXT WEEK AS WELL.
25 BOTTOM LINE IS BY THIS TIME NEXT WEEK I ANTICIPATE
26 YOU WILL BE IN DELIBERATION. SO YOU GOT THAT? NO FRIDAY
27 SESSION AS USUAL. MONDAY WE WILL NOT BE IN SESSION, AND ONE OF
28 THOSE TWO OPTIONS IS GOING TO OCCUR ON TUESDAY. BUT WE WILL

9245
1 HAVE YOU IN DELIBERATION NEXT WEEK. PLEASE REMEMBER THE
2 ADMONITION OF THE COURT NOT TO DISCUSS ANY OF THE EVIDENCE OR
3 TESTIMONY AMONG YOURSELVES OR WITH ANY OTHER PERSONS, NOR FORM
4 OR EXPRESS ANY OPINIONS ON THE MATTER UNTIL IT IS SUBMITTED TO
5 YOU FOR DECISION.
6 HAVE A PLEASANT FOUR DAYS OFF. WE’LL SEE YOU
7 TUESDAY AT 9:00 A.M. TUESDAY AT 9 O’CLOCK.
8 (AT 3:56 P.M. THE JURY WAS EXCUSED
AND THE FOLLOWING PROCEEDINGS WERE HAD:)
9
10 THE COURT: ALL RIGHT. THE RECORD SHOULD REFLECT THE
11 JURORS AND ALTERNATES HAVE LEFT THE COURTROOM.
12 YES, MR. FELDMAN.
13 MR. FELDMAN: TWO MATTERS MINISTERIAL. EARLIER TODAY WE
14 DISCUSSED WITH THE COURT, AND I THINK IT WAS NOT CONVENIENT TO
15 ACCOMPLISH IT ON THE RECORD, JUST A SUBSTITUTION OF THE
16 ORIGINAL.
17 THE COURT: 184, THAT IS CORRECT.
18 MR. FELDMAN: YES. WE’D JUST LIKE THE RECORD TO REFLECT
19 THAT THAT’S BEING EFFECTED.
20 THE COURT: ALL RIGHT. SO 184, THE XEROX COPY IS BEING
21 REPLACED BY THE ORIGINAL DUPLICATE; IS THAT CORRECT?
22 MR. BOYCE: IF I CAN FIND IT, YOUR HONOR.
23 THE COURT: WELL, WE’LL TAKE CARE OF THAT. PEGGY CAN
24 FIND THAT AND RE-MARK IT SO THAT IT’S PROPERLY MARKED. I DON’T
25 KNOW THAT ORALLY THE PEOPLE CONSENTED, BUT I BETTER PUT THAT ON
26 THE RECORD.
27 MR. DUSEK: THAT’S FINE.
28 THE COURT: ALL RIGHT. THANK YOU.

9246
1 MR. FELDMAN: YOUR HONOR, ALSO THE DEFENSE WANTS RELEASE

2 OF THE SUBPOENA DUCES TECUM TO RETURN TAPES TO THE MEDIA, IT
3 APPEARS TWO AT LEAST HAVE COMPLIED, TWO OUT OF EIGHT.
4 THE COURT: OKAY.
5 MR. FELDMAN: I’VE DISCUSSED WITH MR. CLARKE A RELEASE TO
6 THE DEFENSE TO REVIEW IT. IF THERE’S ANYTHING OF MERIT WE’LL
7 LET YOU KNOW, AND MR. CLARKE DOES NOT HAVE AN OBJECTION, I
8 BELIEVE. I’M TAKE IT TONIGHT AND I’LL TURN IT OVER TO HIM
9 TOMORROW.
10 THE COURT: ALL RIGHT. ANYTHING ELSE FROM COUNSEL?
11 I WANT TO ADDRESS THE MEDIA ON A POINT, AND THAT
12 IS, I’M STARTING TO BE INUNDATED WITH INQUIRIES ABOUT WHEN THIS
13 ALL COMES TO A CONCLUSION HOW MANY, IF ANY, OF THE JURORS ARE
14 YOU GOING TO BE ABLE TO GET TO. I HAVE A PLAN. I’LL BE ABLE TO
15 TALK TO YOU MORE ABOUT IT AS THIS DEVELOPS. THE BOTTOM LINE IS,
16 HOWEVER, DESPITE WHAT THE MEDIA’S ATTORNEY HAPPENS TO SAY, I
17 DON’T BELIEVE THESE JURORS ARE FAIR GAME FOR ANYBODY, AND I
18 INTEND TO OUTLINE EXACTLY HOW IT’S GOING TO BE HANDLED, AT LEAST
19 IN THIS COURTROOM WITH THESE JURORS. BUT IT’S A LITTLE
20 PREMATURE.
21 AT ANY RATE, QUIT SENDING YOUR NOTES AND MISSIVES
22 BECAUSE I AM AWARE YOU ALL WANT TO TALK TO AS MANY PEOPLE AS YOU
23 CAN. BELIEVE ME, WE’LL TRY AND ACCOMMODATE YOU.
24 OKAY. ANYTHING ELSE TILL TOMORROW MORNING?
25 MR. FELDMAN: JUST IN TERMS OF TIMING. ONE OF OUR
26 LAWYERS HAS A COURT APPEARANCE AT 9:00, IF WE COULD START AT
27 9:30, PLEASE.
28 THE COURT: IS THAT OKAY WITH THE PEOPLE?

9247
1 MR. DUSEK: WE’LL BE HERE.
2 THE COURT: WE’LL RECESS TILL 9:30 TOMORROW MORNING. THE
3 MATTER WILL BE OPEN TO THE PUBLIC IMMEDIATELY.
4 MR. DUSEK: THANK YOU, YOUR HONOR.
5 THE COURT: THANK YOU.
6
7
8 (AT 3:58 P.M. AN ADJOURNMENT WAS TAKEN
UNTIL 9:30 A.M. FRIDAY, AUGUST 2, 2002.)
9
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