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Pretrial Motions Start In Westerfield Case

Hearing Could Last Days

POSTED: 8:32 am PDT May 7, 2002
UPDATED: 12:25 pm PDT May 7, 2002

Pretrial motions started Tuesday in the case of David Westerfield, a Sabre Springs man accused in kidnapping and killing 7-year-old Danielle van Dam.

Danielle van Dam
DANIELLE VAN DAM 1994-2002
DISCUSSION

The motions -- which could take more than a week -- range from a defense request to sequester a potential jury to a prosecution request to have jurors view the defendant's motor home.

David Westerfield listens to proceedings

Danielle van Dam's blood, fingerprints and hair were found at various locations inside the recreational vehicle, prosecutors said.

Westerfield, 50, is charged with murder, kidnapping, possession of child pornography and a special circumstance allegation of murder during a kidnapping in connection with the second grader's death.

Prosecutors said last week they will seek the death penalty if Westerfield is convicted at his trial, set to start May 17. A statement filed in support of the motion to seek the defendant's execution remains sealed.

In motions made public Monday, Deputy District Attorney Jeff Dusek said that his office had no idea what to make of possible defenses such as: an alibi for Westerfield; the defendant was intoxicated if he killed the child; third-party access to the van Dam residence; or a third party culpability defense that one or more of the 34-to-76 registered sex offenders in the vicinity committed the crimes.

Prosecutors admitted that they called the victim's parents -- Damon and Brenda van Dam -- as witnesses at Westerfield's preliminary hearing in part to discover what kind of cross-examination could be expected from the defense at trial, according to Westerfield's attorneys, Robert Boyce and Steven Feldman.
Video

The attorneys accused prosecutors of filing some of the motions to try to obtain Westerfield's defense strategy and theory of the case.

The victim's parents discovered that their daughter was missing from her bed the morning of Feb. 2. Volunteer searchers in the East County found her body on Feb. 27, along a road in Dehesa.

Westerfield, who lived two doors down from the van Dams in Sabre Springs, was arrested on Feb. 22.

Dusek also filed a motion seeking to limit questioning of Brenda and Damon van Dam about their experiences with alcohol of drugs.

Brenda van Dam testified at the preliminary hearing that she smoked a marijuana cigarette with her girlfriends in her garage before going to Dad's restaurant the night of Feb. 1, and while at Dad's later that night.

Westerfield's attorneys contend in another motion that the child pornography charge against the defendant should be tried separately from the murder and kidnapping charges.

But prosecutors said that while possession of child pornography isn't in the same class of crime as murder and kidnapping, all three crimes are certainly "connected together in their commission."

"The defendant kidnapped a 7-year-old girl from her own bed," Dusek wrote in his motion. "He killed her, then dumped her nude body in an isolated location. The conclusion is inescapable ... she was sexually molested prior to her murder."

Westerfield's attorneys also filed a motion objecting to the introduction at trial of any computer images, cartoons, photographs or videos of pornographic materials seized from computers files and computer storage devices in the defendant's home.

All but two of the images of alleged pornography introduced at the preliminary hearing were created on the storage discs seized from Mr. Westerfield in mid-1999, the defendant's attorneys state in court papers.

"Pornographic images created up to three years have slight, if any, probative value on proving a motive on the part of David Westerfield to kidnap and/or murder Danielle van Dam," Westerfield's attorneys wrote.

Prosecutors said the computer evidence seized from the defendant's home included still images of clothed, partially naked and nude adults and, apparently, children; a series of still and animated images depicting forcible sexual attacks on a young female; and digital movies displaying adults and, apparently, children engaged in sexual activity, including forcible sexual assault.

One seized compact disc containing sexually explicit forcible sex scenes with apparent juveniles was created last November, prosecutors said.

Affidavits that police filed in support of search warrants in the Westerfield case remained sealed.


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