- The Washington Times - Sunday, August 25, 2002

SAN DIEGO (AP) Defense lawyers may be able to spare David Westerfield's life if they can evoke just enough sympathy or lingering doubt in jurors who convicted him of kidnapping and killing his 7-year-old neighbor, said attorneys who have followed the case.
Westerfield, who lived two doors from Danielle van Dam, was convicted of kidnapping, murder and possession of child pornography. The jury reconvenes Aug. 28 to decide between execution and life in prison after testimony in the trial's penalty phase.
"I don't believe this is a slam dunk for the prosecution," said William F. Nimmo, a former prosecutor who is now a defense attorney in San Diego. "This is 12 people who are going to have to vote to kill somebody."
Danielle was last seen when her father put her to bed on Feb. 1. Her nude body was found along a rural road nearly a month later.
California juries have shown a willingness to recommend capital punishment for child killers. Perhaps the most notorious example is Richard Allen Davis, on death row for the 1993 murder of 12-year-old Polly Klaas in the San Francisco Bay area.
"In the minds of some jurors, this may be what the death penalty is for," said Marc X. Carlos, a defense attorney who has tried many capital cases.
But the differences are stark between Davis, a repeat felon before the 1993 attack, and Westerfield, an engineer with his own business and a drunken driving conviction.
"This man has no prior history of violence. He's clearly not the worst of the worst that we've seen out there," said Toni Blake, a lawyer and jury consultant.
The case against Westerfield was based on circumstantial physical evidence, including a spot of Danielle's blood on his jacket and the discovery of her hair, fingerprints and blood in his motor home.
Investigators never found anything to prove he was in the van Dam house. Because of the decomposition of the body, police were not able to pinpoint the cause or time of the girl's death.
A gag order prohibits prosecutors and defense lawyers from discussing the case, but legal analysts speculate Westerfield's lawyers may emphasize any doubt about his guilt.

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