Sixteen years after a jury sentenced David Westerfield to death for the murder of 7-year-old Danielle van Dam, the state Supreme Court heard Westerfield’s first challenge to his death penalty verdict.
Danielle disappeared from her Sabre Springs home in February, 2002.
Volunteers searched everywhere, and almost a month later found her badly decomposed body in the underbrush off Dehesa Road in El Cajon.
Six months later, a jury convicted Westerfield who lived across the street from the van Dam family. Jurors found him guilty of murder in the course of kidnapping, kidnapping and possession of child pornography and sentenced him to death.
Westerfield has been on California’s death row ever since.
At a hearing Wednesday in Sacramento, the seven-member Supreme Court heard Westerfield’s automatic appeal of that death penalty.
In a 490 page legal brief, first submitted seven years ago, Westerfield’s lawyer outlined 28 reasons why his client deserves a new trial.
Among those arguments: the trial judge, William Mudd, wrongly denied Westerfield’s motion to suppress certain evidence; the child pornography charges should not have been heard at his trial, there was insufficient evidence of kidnapping to support that guilty verdict; and Judge William Mudd should have sequestered the jury, to prevent members from being exposed to prejudicial publicity.
Appellate attorney Mark Greenberg focused on the tainted jury argument at today’s hearing.
Greenberg said unrelenting news coverage, emotional, public displays of support for the van Dam family, and the “stalking” of three jurors outside the courtroom could have influenced the jury.
"All of these things were intruding into the courtroom,” Greenberg argued. “Full sequestration of the jurors was appropriate, and if not (during presentation of the evidence), then certainly during deliberations."
Greenberg argued that keeping the jury away from family, friends and the media by closely guarding their privacy and putting them in hotel rooms at night was required for such an emotional, high-profile case.
Deputy Attorney General Robin Urbanski disagreed.
"The trial judge was constantly, daily, reminding the jurors about their obligations to shield themselves from outside influence,” Urbanski told the justices “As issues came up, the court addressed them."
Westerfield was not present for Wednesday's 30-minute hearing. The justices will issue a ruling within 90 days.
If Westerfield loses his first appeal, he has other legal avenues to challenge the jury verdict.
That process could last decades and it’s possible that Westerfield, now 66 years old, could die in custody before his appeals are exhausted and before he’s executed.
District Attorney Summer Stephan said the 16-year wait for Westerfield’s appeal highlights a shortcoming in the legal system.
"It's not fair really, to either side, the way the system stalls,” Stephan told NBC 7. “Delay is not really a friend to justice."
Stephan said she hopes voter approval of a death-penalty reform ballot measure in 2016 will speed up the process.
The new law directs the state court system to complete death penalty appeals within five years.
"Are there errors (in jury verdicts)?," Stephan asked rhetorically. "Is there any chance of innocence? Those are very important (questions), but you can have that done within five years."
Defense attorney Bob Boyce disagrees. He was one of Westerfield's trial attorneys, and though legal ethics prohibit him from discussing Westerfield's case, Boyce is outspoken about what he feels are fatal flaws with capital punishment.
"The biggest problem with the death penalty is the cost of the death penalty," Boyce said. He points to studies that show the state could save $150 million a year by switching to a sentence of life-in-prison with no chance for appeal, for the most heinous crimes.
Boyce also said the death penalty is not a deterrent, and he believes that some inmates are wrongfully convicted, despite their lengthy appeals. "There are case-specific examples of people that we learned, after the fact, were actually innocent, that have been put to death," he said.
Boyce thinks the goal of a five-year appeals process is unreachable, because capital cases require legal expertise and experience, intense research and expert analysis of evidence, and more money that the state is willing to spend.
Danielle’s mother, Brenda van Dam, strongly criticized the slow-motion appeals process for her daughter’s killer.
“We believe that the appeals are frivolous and without merit, and are unnecessarily dragging this case out,” van Damn said in a statement to NBC 7. “There was a full and complete legal defense presented by his qualified attorneys at trial, which put our family and all of San Diego through the ringer. It's time for the jury's verdict to be honored and justice given to Danielle.”