SAN DIEGO -- David Westerfield will be sentenced today to death by lethal injection or life in prison without the possibility of parole for the kidnapping and murder nearly a year ago of his 7-year-old neighbor, Danielle van Dam.

WESTERFIELD TRIAL Judge William Mudd Issues Death Penalty Sentence Hear Jury's Death Penalty Recommendation Watch The Jury's Verdict Being Read Share Your Thoughts DANIELLE VAN DAM 1994-2002 Watch Danielle Video Montage E-mail: daniellevandam @yahoo.com Send mail to: P.O. Box 501515 San Diego, 92150

Before sentencing, attorneys for Westerfield will argue before Judge William Mudd that the jury recommendation of death by lethal injection should be disregarded in favor of life in prison. Mudd then will make the final decision on what penalty to impose.

Westerfield, 50, was found guilty Aug. 21 of murder, a special circumstance allegation of murder during a kidnapping, and possession of child pornography. A few weeks later, the same jury that convicted the self-employed design engineer recommended he be put to death.

In court documents, Westerfield's attorneys reminded Mudd that he found that San Diego police detective Mo Parga lacked credibility when she testified in pretrial hearings that she didn't know she was violating the defendant's rights while he was detained by officers.

Mudd said he was troubled by the fact that Parga didn't know that a search warrant was being prepared for Westerfield's car, motor home, trailer, home and him, according to the defense documents.

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The attorneys also stated that two San Diego police detectives may have been ordered to violate Westerfield's rights when they tried to speak to him or show him photographs in jail the day after the Sabre Springs second-grader's body was discovered.

"Here, the state's misconduct was extreme, blatant, outrageous and undermined the integrity of the judicial process," the attorneys wrote. "This misconduct was not simply the isolated action of a single rogue officer, but a concerted effort on the part of numerous police officers to violate this capital defendant's constitutional rights."

Prosecutor Jeff Dusek said in response that no detective had it in for Westerfield -- as his attorneys claimed -- and that the finding of a special circumstance of murder during a kidnapping was warranted.

"Frankly, any other decision would have been unexplainable," Dusek wrote. "The jury's decision was right and appropriate. It must not be reduced."

The evidence that the 50-year-old Sabre Springs resident took the 7-year- old from her bed, killed her, then dumped her naked body off an East County road was overwhelming, the prosecutor wrote.

"The defendant has shown himself to be an evil, selfish, cold-hearted child killer," Dusek wrote. "Civilized society cannot contemplate the enormous cruelty shown by the evidence in this case."

Thursday, Brenda and Damon van Dam filed a wrongful death civil lawsuit against Westerfield, seeking unspecified damages for alleged intentional infliction of emotional distress and negligence.