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in San Diego a trial of national notoriety has just concluded with the
accused individual, David Westerfield, being found guilty of kidnapping, murder and probably rape of a 7-year
old child. Friends who know of my interest in the law, and that I live
in San Diego, have asked me what I think about it all, assuming I would be
hooked by it.
Well, they're right, this case caught my interest early on because, for me, there were some out-of-place parts to the picture that was developing almost from the first report. It started as a simple gut reaction, but as the story developed it grew to the point where I found myself watching developments in the press and then the trial as closely as possible. So here is what I have come to believe...
Let me first start by saying that I think child abuse ought to be a capital crime and that whoever did this, or, for that matter, abuses ANY child, deserves a slow, painful, and incredibly grim demise. I do not believe there is any justification whatsoever for the continued existence of anyone who would do such a thing to anyone, and most especially to a child.
But I believe that in this particular case, the system has found the wrong man guilty of this crime.
Remember, we work in a system in which one is considered innocent until PROVEN guilty. In this case, an entirely circumstantial case, the rules given out were that if there is more than one reasonable explanation for a given piece of evidence, one of them tending to lead to a finding of not guilty, it is that version that must be accepted. It does not matter if the defendant might have done it or even if he probably did it by a "preponderance of the evidence" as is the case in a civil trial. In a criminal trial, especially a capital case as this was, there must remain no reasonable doubt that he did it for a proper finding of guilty.
It is simply my contention that as this case was presented by the State and wallowed in by the media, there are a number of reasonable doubts about the evidence and the conclusions drawn from them. I don't know if he did it or not, but under our system, I think there is clear and reasonable doubt and that means he should not have been found guilty.
Below are my questions and problems with this case. But first a little background as to why it even matters to me enough to take the time to post this page on my site (other than to avoid having to go through it with everyone individually). A huge issue for me is that if if it is so easy to find a person guilty despite what are, to me, clear questions, then, as I'll discuss later, it calls an important cornerstone of my legal philosophy into question as well.
In addition, I was surprised at the speed with which the accused, David Westerfield, which I will hereafter refer to in the legal shorthand of "(D)" --meaning "Defendant"--was centered on as the ONLY suspect when, to my mind, several possible suspects (discussed below) were summarily excluded. And then I was really puzzled by the passion with which the media, both local and national instantly assumed (D) to be guilty and from BEFORE the first witness appeared on the stand, started analyzing everything from the sole view point of his guilt. No data leading to a possible acquittal was examined, only those that lead to a guilty verdict. Those that could be interpreted multiple ways were only interpreted in the way that lead to guilty. Something was out of whack here.
And, to me, something was REALLY out of whack with the picture being painted by the Prosecutor "(P)" and the media. So, from that standpoint of being puzzled and bothered by what I was hearing, I started paying attention. I carefully watched the trial, which was easy with the gavel-to-gavel coverage and a horrid summer without steady work. And I was astonished that the (P) would go to trial with their case and even more so when the jury then found (D) guilty based on the evidence presented. I did not, in this atmosphere of inflamed passion where lots of people I talked to accepted his guilt as a cosmic "given" regardless of any evidence, expect a "Not guilty" verdict. But I did expect a hung jury. If ever there was a reasonable doubt, it had to be here and surely at least one of the 12 jurors was open-minded enough to see it. So I was surprised a bit by the guilty verdict.
This guilty verdict is problematical for me not only because of this case in specific and what I believe is questionable evidence, but because of the implications in other capital cases. If (D) is given a death sentence, which I strongly believe the actual perpetrator of the crime deserves, it forces me to admit that an old friend's aversion to the death penalty based on it being so easily misapplied has to be looked at carefully. It also means a killer may still be out there.
Following the trial the judge released some sealed files which, on their surface, appear to support the verdict. We'll see...
me, there are a number of issues, anyone of which would raise
"reasonable doubt" but taken together, for me, combine to scream out that
this guy probably not only did not do, he could not have done it. That is not
to say that the evidence does not support the clear possibility that he was
in some way involved, say, in a cover-up. But that is a different issue. And
to prove that he MIGHT have done it, or even that he PROBABLY did it does
not support the legal requirement of guilty beyond a reasonable doubt.
Please understand, this is not intended to be a legal brief trying to go into detail on these issues and argue them as one would in court. It is merely a summary of the things that bother me about the case as presented. There may well be other elements that would, for me, clearly cement (D)'s guilt but based on what I heard both in the case in principle and the closing arguments, as well as some material in the sentencing phase, those other elements were never presented while problems were.
The issues that raise my doubts, and which I'll itemize below, are these:
Remember, these issues have to be considered in light of (P)'s case as laid out in court. By that narrative of accusation, here is, in brief, what happened. The perpetrator, sneaked into the victim's house, went to the little girl's bedroom, snatched her (or perhaps had to hide there for a couple of hours and THEN snatched her, then sneaked past the dog and out of the house with her, went on a bizarre odyssey through the beach and desert and finally dumped her body by the side of a road where it was ultimately found a few weeks later.
The question is simple: without a shadow of a
doubt, did (D) do this?
|Could (D) have actually done it as described?||All
parties agreed on this point: on the night of the victim's
disappearance, (D) was at the bar, drinking heavily, and left the bar, as
one witness stated, "stinking drunk." No witnesses claimed
anything to contradict that he had consumed a very large amount of alcohol and
that he was quite inebriated when he finally left the bar.
Given the State's timeline for the crime, while In that drunken state, he had to have gone almost directly to the victim's house, which, it is important to remember, he had never been in before, ignore the alarm system (speaking of which, why did it not alert the father who said he was home?), go directly to her bedroom (although testimony indicated she did not always sleep in the same bedroom even if he had known which was hers), manage to not awaken or otherwise disturb her dog (which had no trouble waking the father when it needed to go out), assault the little girl (or perhaps hide in her room and only later assault her), carry her (or her body) back past the dog and two brothers and the father, all without leaving one single shred of evidence, There was no hair, no fibers, no prints, and no sound. And he did all this while "stinking drunk."
Westerfield, it was testified, also tended to sweat profusely, especially while drunk. Yet after spending (according to the prosecution) up to two hours hiding in the house, there was insufficient residue to alert the police sniffer dogs. Nor did they alert when taken to his motor home to check for evidence of the little girl.
Sorry, I'm not buying it. First I've never seen anyone who was "stinking drunk" who could have done that silently much less without touching at least something if only to steady himself while trying to carry the little girl or her body. But even more problematical to me is the issue of the dog, a Weimeraner that was bonded to the little girl.
I've been around too many dogs to believe he could have done that without getting the dog's attention, drunk or not. The dog would have reacted to a strangers presence in its house if not in protective mode then at lease as it did to investigators and reporters by running up to them. Were it locked in a room it would have scratched at the door or whined or done something to get attention. And if it had sensed the little girl's danger or fear, the dog would have been far more agitated than it needed to be later when it needed to wake the father to go out to pee.
For me, this is a fatal flaw in the State's narration. Holmes said, "When you eliminate the impossible, whatever remains, no matter how implausible (or, I might add, distasteful) must be the truth." I have to tell you, I think this is an impossible task for anyone in (D)'s accepted state to have accomplished as described.
It is far more likely that someone
completely in control of themselves emotionally and physically, who
knew the house, knew where the victim was sleeping, and, whom the dog knew
well, would be required to have done it. But, though for me this issue
alone would be enough to create serious questions and doubt, that is far
from the only problem I have. I don't believe that (D), drunk or otherwise,
was ever in that house. And if he was not, then the core of (P)'s case
starts to unravel because it is based on (D) assaulting and taking the
victim from her bedroom.
|What was his motivation?||Another
problem is the question of--and proposed answers to--why (D) would have done
this crime. Several
possible motivations were floated. The first based on an initial lie by the
mother and asserted that (D) killed and raped the little girl because the
mother had spurned his advances at the bar. She claimed she never danced
with him despite his advances and further that she did not know him except
as a neighbor. Oh pu-leeze. An intelligent man would kill the
child of a woman who refused to dance with him out of
But then several things turned up in testimony to destroy that idea... It turns out, according to testimony, that (1) she not only danced with him, she "dirty danced" with him and was "all over him" on the dance floor; and (2) she did know him since she had taken Danielle to his house the week before; and (3) in fact she had had occasion to see him at the bar at least two times before that. So he was not spurned...if anything, SHE was.
When that revenge idea failed to float, it was quickly decided that he was a sex pervert, more precisely, a pedophile, motivated in this heinous act by his deviant cravings for sex with children. The evidence to support this was pornography found on his computer so this bears some closer scrutiny, especially since the media has been more than a little hypocritical about it all.
Bear in mind, he is portrayed as a true predator, a man obsessed with pornography and especially children's pornography to the point where he was driven by his perversion to toss away whatever other intelligence level he might have (which was considerable as an engineer/consultant and as a person whose work has led to a number of patents for inventions helping people with arthritis and physical disabilities ) and attack a neighbor's kid instead of doing what most pedophiles do which is "hunt" a bit out of their own territory (Gacey) or for strange targets wandering into their territory (Daumer).
The evidence of his obsession and perversion found on his computer, was a "collection" of downloaded pornography containing over 1,000 images of nude nubile, "well developed" females. Of those images, 80-some were questionable, meaning they females appeared to be young or young looking. Fewer than half dozen were, apparently (so claims the prosecutor) actually of underage females. This collection, according to the police's computer expert, had been downloaded three years prior and was viewed approximately every other week according to the computer's internal "history" function. One--ONE--file was a video clip of a purported child rape: a horrendous clip to be sure. But there was no indication whether it had EVER been viewed and yet the press and the prosecutor continually referred to that clip as (D)'s "collection" of child rape videos.
Wait a minute... I thought this guy was obsessed with the stuff? From an obsessed person wouldn't you expect perhaps daily viewing and, probably, new stuff being brought down all the time?
Now I understand that what I'm going to say next is probably sheer coincidence, but his 18 year old son visited him about...ready for it?...every other week. Of course the son denied looking at it. He had no legal option for to view child pornography would be a felony and he was not being charged with anything. In his police interview (D) admitted to downloading it but claimed to not have reviewed it recently and no evidence contradicted that claim.
The point is, does that State-defined access of the images really indicate an obsessed pervert? Someone whose obsession with little girls sent him on the prowl in his own backyard? Wouldn't you expect a higher percentage of children's images (assuming those few really were of children anyway)? Wouldn't you expect more constant viewing? Wouldn't you expect newer images? Most pedophiles spend little energy with adults so why the predominant collection of adult females?
Besides, especially here in Kalifor...oops...California, the argument has always been maintained that pornography is not only harmless but protected by the 1st amendment. It is not and never has been an indicator, much less a predictor of behavior, it is held. Well, I'm not going to get in the middle of that argument here since it is not the point; the point is if it is NOT an indicator or predictor of behavior then it cannot be held out to be evidence of a motive. And if it IS, then a very much closer exam of the parents is in order, but we'll get to that down the list...
Additionally, there was zero evidence in the main trial that (D) had EVER had any credible complaint or accusations made about him (except for a very old DUI) and none relating to any deviant or inappropriate behavior. In the penalty phase, a long passed story of a niece complaining he was "bothering" her was presented but under cross examination the person themselves said they were (in describing the event) repeating what was written not their actual recollection and her mother said that the incident was checked out, (D) was spoken too immediately thereafter, and nothing seemed to have been out of order so it went no further and there were no further incidences to indicate anything other than a misunderstanding. Other than that undefined situation, no evidence at all was submitted either at the case in chief or during penalty phase to indicate any other history of such behavior.
That's important data since pedophiles generally do not wake up one morning in their 50s and discover, oh surprise, they really really like little girls and want to rush right out and have one. This lack of any prior history is an issue for me. His ex-girlfriend indicated he really liked sex but never indicated it was directed at anything other than adult women. Wouldn't she or his ex-wife have at least had some suspicions? Would NO ONE have any idea of his aberrant tastes? Wouldn't there be a trail of complaints or even considerable innuendo and rumor among the family or friends? Well, not if the State's position is to be believed. In contrast to nearly all statistics about these crimes, this was a lone aberration in that a man obsessed with child pornography only acted on it once--this time. If so, then if it is not the ONLY such case on record, it belongs on a very short and highly suspect list.
There was testimony of one potential incident. A girl, now in her twenties and a niece of (D)'s stated he had touched her mouth in her sleep years before. The defense asked if her testimony was what she recalled or what she was told had happened and she stated in open court it was what she was told to recall. Her mother was called to testify and stated she had investigated the incident at the time, talked to both her daughter and to (D) and concluded it was a misunderstanding. The news brings the girls claim up over and over but ignores her later comments and those of her mother.
So, sorry, there is no evidence of a legitimate motive here to accuse him of kidnapping, raping, and killing this little girl. If everyone who had downloaded a collection of skin pix and gotten a few that were really "out there" in the mix were sexual predators then no child--heck no domestic pet--would be safe on the street. And women generally would need far better fight training than they are getting now.
I understand that most sexual offenders are also into pornography, but so far I don't believe you can draw the reverse conclusion: that people into pornography have a high likelihood, much less have a predetermination, to be sexual offenders. And until that can be shown as an identifiable trend, this does not form the basis for a motivation for the crime. It may be sleazy and depending on your moral stance, my not be acceptable reading material, but legally, and constitutionally, it has been ruled that there is no connection so one cannot legally be implied here without direct and specific psychiatric evidence to the contrary, none of which was presented.
Now he did, in the police interview tapes, give a truly unbelievable response as to why he had downloaded the files in the first place. But at this point, assuming for the moment his innocence of the killing, he was probably worried about the possession of potentially illegal materials. I never said he wasn't a sleaze, only that I didn't think the case for murder was proved by the State.
Nope, it won't wash. But there's
|Fingerprints of all kinds||First
we need to restate something so you are clear on it: there was NO evidence of any kind, including
fingerprints, to indicate (D) was EVER in the victim's house. But
there were other fingerprints found there that didn't belong to the
family or any party to this including (D)..
These were prints of an unknown party found on the banister and in the upstairs portion of the house that did not belong to the family or to (D). It would make sense that someone, drunk or not, would grab the hand rail if they were carrying a body, squirming or otherwise, down a set of house stairs. So whose prints were these? The police don't know or at least it was not pursued in the trial.
So where did they find the victim's fingerprints. Well, there were two prints in the motor home allegedly used to transport the victim to her final death and disposal. Interestingly, at the same time, there were NO fingerprints of the (D), the owner of the motor home found anywhere in it... What?
One print of the victim's, a hand print, was over the bed on the wall. The argument was that it has been placed there as the little girl struggled (which meant she was taken from the house alive with all the problems that created for the abductor especially if he was drunk at the time). If (D) had scrubbed the motor home to remove prints, and had been the one to struggle with the victim on the bed, isn't it likely he'd have also scrubbed the area of the main action as well as the rest of the motor home? And how is it possible that he drove it, after the cleaning, back to its storage place and left not a single print on it? Something is wrong with this picture.
In any case, what was clear in the evidence was that the motor home commonly sat on the street unlocked. That occurrence was so common that neighbors complained about it. The kids, including the victim, it was admitted, played on the street by where it was parked. Ask any collection of 6-10 year old kids if they were playing by an unlocked motor home if they would go in and look around, check out the place, jump on the bed, etc.? Well, you don't have to, that survey has already been taken. Better than 90% said they would. (Link to survey)
So we now have access to the motor home and a reasonable explanation for how the print got there. What we do not have is a reasonable explanation for how it was the ONLY print of any kind and from anybody to have been found there. Doesn't that strike anyone as just a touch odd?
Of course, what is also fascinating is
that within the same neighborhood, there are a half dozen or so registered
Sex Offenders. ALL of them plus the parents plus the parents' sex
partners from the bar were interviewed and excluded from any further
consideration within 48 hours during which the (D) became the only suspect
because of a stupid trip he took (see below). Now that, folks, is the
world's record for speedy investigation!
|Hairs and Fibers||The
State's experts painted a clear picture of the ease, perhaps the
inevitability of hair or fiber evidence being left by people and carried for
transference across quite a trail. They then proceeded to argue that
the hair and fiber evidence pointed to their version of the story. but
does it really?
Well, the State, of course, ignored the one hair found with the body as irrelevant since they couldn't identify it. That makes internal sense I suppose since they couldn't identify and never pursued the prints found in the victim's house either... It was as if it a piece of evidence didn't allow some version of a story that could point at Westerfield it was ignored. Man that's not how an investigation is supposed to go, but it is how this one went.
(D) had cleaned his motor home and house but the vacuum sweeper bag contained no shred of evidence linking him to either the victim or the victim's house. It is important you remember this little tidbit because it does not fit the rest of it.
The State said (D) tried to cover his deed by scouring the motor home and house to eliminate evidence. He also took some clothes to his normal cleaners, all, they assert, to clean up after this crime.
It is also important to remember that both the little girl and her mother had been in his house a few days earlier and the little girl ran all around in it according to the witnesses including her mother. It was also testified that the mother danced with (D) that night and "rubbed herself all over him."
And remember the discussion about kids getting into parked RVs as you consider the following.
In his house and in his motor home were found a few (2-3, I can't remember which) fibers which were similar to ones from the victim's house, presumably from the carpet or some fibrous bit of clothing or blanket belonging to the victim although the State argued that he carried the victim out already disrobed since a pair of her pajamas was found still in her bedroom.
However, the most the state expert would say was that the fibers were "similar to" or were "consistent with" the "types" of fibers found in the victim's house. She could not be made to say they were either exact or were the same though the prosecutor tried very hard to accomplish it and in summation said it was the same fiber in exaggeration of the testimony. These houses are part of a development tract: are they the only ones with those kinds of rugs? Was (D) ever in another house with the same type of carpet? No one asked. but even without that, there was an even better version of fiber transference already described in the testimony: the mother rubbing all over (D) when they were dancing.
Additionally, the witness first called the fibers by different descriptions, a bright orange for one of them and a dull orange for the other, in fact distinguished several types by specific color. When the photomicrographs were shown of the compared fibers, the strand structure appeared very similar but one of them had lots of little dark spots on it and the other had none. Yet, the State told us, these were identical and proof the victim had been around (D) and in his motor home. I think they were neither.
I would argue (a) they do no such thing since there were other ways for those fibers to get there and (b) so what if they are, we already know that the victim and her mother and dog were in (D)'s house recently and that the victim herself and maybe her dog had access to and opportunity to be in the parked motor home. Plus, the fiber transfer could also have happened during the close dancing and come not from the victim but from her mother.
Additionally, although there were fibers from (D)'s house and carpet found in his RV there were no carpet fibers from the victim's home found in either his house or in his RV. Why not. The obvious answer is that he was never there.
I don't think the fiber evidence has any meaning at all here. It is too conflicting, too vague, and too inconclusive to use as a basis to execute someone.
|The Infamous Blood Spot||Much
was made of the DNA evidence matching the victim's blood to a spot found on
(D)'s jacket and one in the motor home. Oh boy, here I thought was the
smoking gun, the real stuff to make it all indisputably clear and hang this
pervert. Then I heard the testimony...
The jacket was taken by (D) to his normal cleaners. The clerk at the cleaners testified that he had looked closely at the jacket with an eye to what it would take to clean it and "did not see any blood spots on it." Yet the police, after confiscating it, claim to have found a blood stain on it. What they claim to have found was a 3/16" spot. That is not very much blood; less than from a typical scratch much less someone wounded in a vicious assault. and I say claimed because we never saw it, the stains on the jacket pieces, or even photos of it.
That's right. As was pointed out by a reader of this page, at the trials there were no photos given in evidence of the blood spots, only the jacket with the holes cut out where they said the blood had been. Yet two jurors interviewed after the verdict said it was the blood on the jacket that convinced them... blood they never saw, only heard about.
They also found a small blood spot (1/4") in the motor home. Here's where the State says the struggle took place (because of the handprint) and yet only a 1/4" spot remained when this type of evidence can remain and be testable for up to 50 years? We've already shown how the kids very likely played in the motor home at some spot and, again, we're not talking the pool of blood one would expect of such a violent crime.
Now it is important to relate that there
was no evidence of how the victim actually died. There was a lot of
evidence as to how she did NOT die: she was not stabbed, shot, beaten or
strangled. No evidence of "defensive wounds" or any other
such damage. Therefore, of course, the State concluded and argued, she
must have been suffocated. OK, so why would we think that blood
spots of any size would come from that activity and if it were a bloody
event, leave two very small and very widely separated
|The weird trip||(D)
did most certainly do one incredibly bizarre thing. If he was guilty
it was stupid; if he was not it was simply weird. But it was
impossible to ignore. The day following the night of the alleged
breaking into the victim's house, he took his motor home on an inexplicable
route to the beach and then wandering out to the desert where he got the
huge motor home stuck in the sand, then finally home. He claimed he
went to the beach first, found it unsatisfactory, then went to meet friends
he thought would be in the desert and, failing to find them, returned home.
This was not typical behavior for (D) to be sure. But is it the behavior of an intelligent man trying to dispose of the body of a victim. There are two very good disposal sites along his trip, that is true. For one, we are very close to the Pacific Ocean, large enough to hide lots of victims well disposed of. And, by golly, he went to the beach. But was the body dumped there? No.
And, of course, the great desert east of San Diego itself, especially the area he went to near Glammis with its endless dunes would be a great spot. But was the body dumped there? No.
And even closer, accessible by 4WD is the Anza Borrego desert area with incredibly remote areas for body disposal. And (D) owns a 4WD vehicle and he is comfortable int he desert. But did he (or someone) head into the real back country to dump the body? No.
The man is a multi-patent holding design engineer for pity sake, with a four wheel drive vehicle at his disposal and enough cash to rent a fair sized boat. Is it likely that in this day and age he could think of no better way of getting rid of the main piece of evidence than to cast it rudely beside the road to a Casino? Does this man not watch ANY TV where a plethora of forensics-based programs would let nearly anyone know he (or she) is going to have to be very clever indeed to completely dispose of a body.
I think the only thing his weird trip
proved is that he had wretched timing for his lost weekend.
|Disposing of the body||The
poor girl's body was dumped alongside a road out in the country, despite
being painted by
the State as being in the middle of nowhere along a nearly deserted
road. In fact it was neither. It was about a mile from a major
local Casino on Indian land. The road itself, though not an interstate highway
to be sure, was the normal route to the casino and therefore traveled
commonly and frequently.
The place where the body was found was in a location where the only place to park the motor home, the State's alleged means of transporting the body, was to have pulled a little to the side of the road...in plain sight of anyone driving down the road. No witness however, ever was called that saw the very noticeable vehicle either on the road at all much less parked. And given the passion in this area, it is somewhat surprising that people did not come out of the woodwork to CLAIM they had seen it whether or not they had, much less that someone who REALLY saw it would not step forward. How can that be? Unless it was never there.
There appears to have been no effort by the killer to perform the activities designed to cover evidence or, better yet, make the body disappear. It was not dismembered and scattered, it was not covered, it was not buried; and it was just a few yards from the road up a berm so steep that the police had to cut foot holds in the side in order to be able to carry their equipment. But 50 year old (D) with a bad case of high pitched shakes and not in very good shape, most probably with a raging hangover, was to have carried the body here without help and without steps carved into the berm. And he was to have done it after parking a 30+ foot motor home in plain sight on the road.
Just how stupid was this otherwise
intelligent guy supposed to have become?
entomologists were called in to discuss the grisly business of determining
when the body was dumped by analyzing the degree of insect activity in and
around the body. This is certainly more art than science, yet after
all of the experts' timelines were charted there was a common overlap of the
time for when the body was dumped. One of the four had a longer time
line based on the State's contention that the area was too dry for the
insects the other three said would be there. In doing so they
conveniently ignored that the site was just across the road from a river.
However the area of time overlap, which all of them agreed upon, would have placed the body being disposed of AFTER (D) was under continual scrutiny by the press and police, meaning he could not have done it.
Not certain, not scientifically
perfect...but the coincidence of all the timelines makes just one more
troubling little issue.
|Who else might have done it and how else might it have happened?||If
(D) did not do it, who did? I
think there are four possibilities to consider.
1. If in fact the "action" started in the house as the (P) claimed then I think the father probably did it
If it didn't, then the death itself might have been accidental and/or
2. (D) is taking the bullet for someone else, like his son.
3. Some as yet unknown person did it.
4. (D) actually did it.
Yes, as number 4 says, it is possible that (D) actually did it. Personally I find that nearly impossible to believe and I certainly think that the most the State proved was that he might have been somehow involved (as per #2). Yet it has to be considered as (to me remotely) possible. But that is not enough for the requirement of guilty beyond reasonable doubt. And that means I still have to examine those other possibilities to see if any make more sense to me or, even if I accepted the evidence, do any of them fit better?
|Why suspect the father?||I
don't think the father can be eliminated as a suspect for a number of
The counter argument is that both parents
took and passed a lie detector test so we need to look at that just a bit
his interrogation by the police, as testified and as revealed by later
released interview videos, (D) was interviewed for nearly 48 hours in
openly confrontational style. He was polite and tried to
cooperate. But he was verbally assaulted by the police who obviously
now believed he was the perpetrator. Over and over he was asked where
he put the body and over and over he denied any participation in the
crime. He was so exhausted he put his head on the table but they kept
at him. finally he started to get agitated at them and a bit
snippy. During that period of agitation he was given a lie detector
test and failed it. Had I been interviewed in the same manner he was,
assuming I was not now jailed for hitting a cop, I'd have been so agitated
as to probably fail the lie detector when they asked for my name.
It also came out conclusively that during the early part of the investigation the parents lied to the police about their activities on the night of the event. Taken in context however it has to be noted that the lying took place at a time during which they also took a polygraph test and PASSED. The police, properly, were trying to eliminate the usual suspects which always includes the parents near the top of the list.
The fact that they passed the lie detector was portrayed as certain evidence they were not involved but there are two small problems that remain with that. First, polygraphs are NOT admitted into evidence because of their vulnerability to cheating. Second, we now know that the family was, at the time, lying so apparently they lied on the polygraph and got away with it.
So how it can be argued that his having
failed and their having
passed a lie detector test means ANYthing? Much less that it is
conclusive of his guilt and clears
them of consideration?
|Why suspect (D)'s son?||Again,
there are a number of reasons to see (D)'s son as a possible suspect who is at
least as interesting to an investigation as the father.
And who else would inspire someone to take such a heinous bullet but that person's own kid?
I think a very workable thesis is that the little girl was confused and sickened by the actions of her parents and left the house on her own to get away. That is why there is no evidence in her house.
By this thesis, when out of the house she somewhere ran into the real killer. If it was the son it may have even happened accidentally but now there was a panic and he had no option but to have his very inebriated father help him try to cover it up. In that event, the hair and fiber evidence would fit, the fingerprint evidence would fit and be explained as a poor cleaning job by a hung-over man and a panicked teenager.
I admit that on some levels I have a lot of trouble with this version since if I were the father and just had my kid assault and kill a little girl, I'd take the kid out myself. But I know that some parents cannot accept their kids as capable of wrong doing even if they were watching them doing the deed and will cover for them at all costs--even themselves.
I'm not proposing that the kid did it. The point is that it is no more implausible a theory than that his dad did it.
|Why look farther afield?||There
are three possible directions here. One is that one of the registered
sexual offenders in the area is a pedophile, which statistics show have NEVER been
rehabilitated, did the deed.
The other is that the deed was done by one of the sex partners of the parents. They were there, they had access, they had interest in unrestrained sex. further, unlike all evidence of (D)'s history, they frequently acted upon their sexual fantasies and desires. I'm not making a morale judgment here, only an investigative one: how can they not be seen as at least as likely perpetrators of a sexually related crime as the defendant who only looked at his collection of images (if, in fact, he was the one to view them) every other week? These people carried on more or less constantly.
Now c'mon, can we do away with the nonsense that their lifestyle plays no part in this? forget issues of morality and personal sleaziness for a moment and just concentrate on how it effects relevant issues here. It provided house access and knowledge to virtual strangers; it cannot have been seen as something calming to the little girl, and it is a small step from breaking one set of sacred vows to lying about anything and then seeing virtually anything as OK.
Of COURSE it is relevant because it shows both to a potential killer and to investigators, somewhat predictable behavioral patterns to either exploit or examine.
Then, a third possible direction to look is that some complete stranger passing through did it as a crime of opportunity.
|Far reaching impact||(D)
was, despite all of the above issues available for the jury to consider, found guilty and will soon be
sentenced. Very likely he will get the death penalty. [DW was in
fact sentenced to Death for the crime not long after this was written. NDK
] Now don't get me wrong here; I am no bleeding heart liberal in
these matters, I happen to believe in the death penalty in the
sense that I think it is a fitting and proper punishment for some crimes
including this one -- but only if the convicted person really did it to
a scientific certainty based on hard, incontrovertible evidence..
If David Westerfield is executed for this crime, then a person who, to my mind, was sentenced improperly, has been killed by the state for a crime he potentially, if not likely, did not commit. I believe the death penalty per se is constitutional. But I think it UNconstitutional, not to mention unconscionable, for the State to kill an innocent person.
It is certainly a travesty when a guilty person goes free, but I can live with that more easily than I can live with an innocent man being executed. Most bad guys are basic idiots and sooner or later repeat the crime and the chances of getting them with the goods. (No, I am not trying to diminish the cost to victims of repeat offenders, merely say that the game is not over just because they managed to get off if the State failed to make the case.)
But when someone is executed it does not matter if they are later shown to have been innocent. There is no recovery from the execution. So although I believe in the validity of the Death Penalty, I think it needs to be reserved for cases where the sentence is based on guilt established beyond any reasonable doubt and, in fact, all the way to a scientific certainty.
And, if (D), involved or not, was not the
killer, then the real killer is still out there.
|So Why the Verdict?||OK,
you say, if all these issues were there for the jury, how could they find
him guilty? I think several things came into play. Bear in mind
that unlike other trials, these jurors were not sequestered. Despite
honest best efforts it is impossible to believe they are immune from outside
input and feedback. Both the press and locals have, as I said,
convicted him from the first day and read everything and every bit of
evidence both presented and implied, from the perspective of a guilty
And, of course, the specter of the OJ trial cannot be ignored. NO ONE would want to be seen as another OJ juror that, idiotically released a likely murder for all the wrong reasons.
It was a major mistake not to sequester this jury from the moment the press circus started but it didn't happen. I have a huge respect for the effort jurors generally put into objectively evaluation evidence and trying to do as instructed in avoiding outside influence. But I don't think it was even remotely possible in this case. Even the incredibly stupid antics of an LA radio station handing out Broccoli to indicate what they called "Broccoli Heads" (meaning stupid) jurors who would not immediately see this guy's guilt, took place in the part of the courthouse where the jury was taking its break.
There would certainly be some that saw the State's case as convincing. That would be expected. But given the issues I've raised, I also do not think it reasonable that not a single juror saw these issue. So, to me, all I can think of is the insidious influence from the outside or a powerful influence inside the jury that quelled all argument to the contrary.
Besides, we are now discovering a
disturbing number of innocent people convicted by juries when the case was
not, in retrospect, all that strong. so why did they convict?
Who knows but outside influence has to be considered as a possible
element. I believe it definitely was in this case.
the case was closed the judge released some sealed documents that, on the
surface, appeared to support the verdict of guilty. Of course if you
believe he is guilty they can be seen that way. But there are other
ways of looking at them. It also has to be remembered that the
contents of those documents are being reported by media that was already
convinced of guilt.
One document said that early in the case, (D) tried to plea bargain for a lesser charge in return for telling the authorities where the body was located. If that is true, one still cannot equate knowing where the body was located and having done the killing. If, as I suggested, he was covering for the real killer, he might know or suspect the disposal site. Perhaps he even helped with the dumping of the body IF it was done early and not later as the forensic evidence suggested. But that makes him an accessory not the killer.
Another document suggested that some witness reported hearing something that sounded like a scream coming from the motor home. It was disallowed for a reason: it means nothing. Was a TV on? A radio? Were children playing in it? Did the sound really come from the motor home? Again, there are multiple ways of interpreting the data, many of which do NOT lead to the conclusion that Westerfield himself was in there killing the little girl.
cannot really say with any scientific certainty that (D) absolutely did not
do the crime and am not trying to do that here. Only he and the dead little girl and the dog know that
answer for sure at
this moment in time. But that's not the issue. The issue--the
only issue-- is that I do
not believe it is reasonable to assert that there is no remaining question
or reasonable doubt about his guilt in this matter. I contend that in
a less passionate environment it would be clear that the prosecution did not
prove their case beyond a reasonable doubt.
Clearly, at least 12 people, and the only 12 people who really matter, already have disagreed with me and theirs is, after all, the last word. But it all leaves me unsettled and, as mentioned before, makes me question some cores assumptions.
Of course the press was all over themselves congratulating each other that they had seen his guilt from the first. But the frenzy that could have gotten otherwise reasonable reporters to ignore issues and questions and, from the start, assume he was guilty and ignore any mitigating scraps of data as if they did not exist, was frightening. The only logical answer was they thought he was a Republican but I don't think he was.
It is now too late to change the jury's verdict of guilt. And, as I said, it is possible they are right. But the questions and doubts are sufficient to me to make it inappropriate to apply the Death Penalty. At least with life in prison it is possible that if he is innocent, the actual killer can be found. I'm not sure there was any reversible error committed during the trial. Allowing, during the sentencing phase, a witness to testify about something she admitted on the stand she did not remember and recalled only from prompted notes would certainly have been enough during the main trial but what is allowable in the latter phase seemed a lot looser. (And the press still hammers at that testimony even though it was discredited in cross examination.)
If I was convinced beyond doubt that (D) did this horrible crime I'd be arguing to string this guy from the nearest tree. Returning to public drawing and quartering would not be out of line by my thinking for this crime. But I'm not so convinced. And because of it I hope they give him life so that perhaps the truth can ultimately be found with that scientific certainty.
When it is, if it turns out he really did
it, then I'll happily pull the trigger myself. If not, then we have not made
a horrid mistake out of passion and outrage. In the larger
picture, the entire system is now in question to me and the press has
lost what little credibility they had before the trial.
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