David Westerfield

When it is the day in which I have decided to sit down and blog I rarely have a case already picked out so the process begins with going through my list (at 400 plus at the moment) of names.  I compile these names from documentary shows, the news or even while doing research on other cases.  Sometimes the name is the victim and sometimes it is the suspect or perpetrator.  I will work down the list a bit and do a quick search on a name and find one that "jumps out" at me on that particular day.  Today as I worked my way down the list I came across the name David Alan Westerfield. I did not know who he was when I threw his name into Google but then I saw the name Danielle Van Dam and I remembered her name. I knew her name because I remember where I was when I heard that Westerfield was convicted and it was rather big news because at the time there were several cases across the country making news about abducted and/or murdered children.  At the time of Westerfield's conviction I was at a hospital where my husband was a patient after a diving accident so in reality I knew very little about the case other than the fact a young girl (she was 7 years old) had been found murdered and apparently this man was responsible, or so a jury said.  

Just knowing the case or remembering one on my list is not always enough to get me to research and blog about it but I was quickly intrigued.  I noticed that Danielle Van Dam was reported missing on the morning of February 2, 2002 by her parents and Westerfield was convicted of her murder on August 21, 2002. This just seemed to be a very short time period, not just to do a proper and just investigation (getting back all the forensics) and building a case but also building a defense.  As I continued to read, that time became even shorter considering the fact that Danielle's body was not found until February 27th and Westerfield's trial began June 4th.  I am not one who believes in dragging things out but by today's standards this seemed rather quick.  Then, the more I dug into the case I was left with even more unanswered questions.  

Let me stop here for a moment and make clear that when it comes to crimes against children, I have little sympathy towards perpetrators.  I believe they are the worse of the worse. In the same respect if you are a regular reader of this blog then you know that I am also about the justice system and following the law.  Sadly our society, and most importantly justices, have heard the phrases "prosecutorial misconduct" and "ineffective counsel" so much that it is often unheard or ignored.  I have seen an appeal in which a judge addressed this issue at length at how it has become so commonplace that it is almost laughable.  The problem with this is that if it is not fully looked into and addressed properly and an appeals court either refuses to hear a case or rules against a defendant it indicates that all the issues addressed were properly handled by authorities or prosecutors and that can in essence harm innocent people.  There are cases in which prosecutors and investigators have mishandled things and done things unlawfully and there are cases in which people simply have bad lawyers but they are often overlooked.  For every law that is made or case that is ruled on there is the real possibility that ruling can be used against others.  It is the job of the investigators and prosecutors to look at every aspect of a case and follow every lead, whether it leads them to the person they believe is guilty or not.  I also believe that while obviously many prosecutors cannot use more than a theory in which a crime was actually committed or why, it is their job to leave no page left un-turned.  When the state stands up in front of a jury they need to have an adequate and plausible answer to every question.... but of course we know that does not always happen, and some cases are worse than others.  Every person in this country has a Constitutional right to a fair trial and an attorney who will fight for them and the law.  

So let's look at this case and the evidence and just see what we can find.  Around 9:30 am on February 2, 2002 Brenda and Damon Van Dam called 911 from their San Diego California suburban home to report that their daughter was missing.  Officers arrived and took statements and a search was launched. When researching the case I found several articles in which the activities in the Van Dam home on the previous night were reported. Most of those seem consistent but I did find a few that indicated that the Van Dam's were less than forth coming or truthful with the police in the first several days of the investigation so to be fair I can only related what I have found to be the story and I can only assume it was the most truthful one.  At any rate on the night of Friday, February 1, 2002 Barbara Van Dam went out to a bar with some friends.  Her husband, Damon, stayed home with their three children, 7 year old Danielle and her two older brothers.  Damon reported that he put Danielle (and presumably the other children) to bed about 10:30 and that he then fell asleep until around 2 am when Barbara and her friends returned home.  Barbara reported that she went upstairs to the second floor where the children slept in their bedrooms and without looking in on them she shut their doors so they would not be awaken by any noise downstairs. At some point obviously the friends left and Barbara and Damon went to bed themselves without checking on the children only to awake and find Danielle missing.

Police began to canvas the area and speaking to neighbors.  Reports were that all immediate neighbors were home, save two.  One of those neighbors was David Alan Westerfield, although apparently his 18 year old son, Neal was at his home. I could not tell you just who the other neighbor was that was unavailable or why as I found no other information on this person.  Westerfield lived two houses away from the Van Dam's in apparently an upper scale neighborhood.  He was a fairly successful self employed engineer.  He was divorced and had two college aged children.  He also had no criminal record.  Westerfield returned home on Monday February 4th around 8 am driving his RV.  It does not seem that the police had trouble finding him once he returned and questioned him where he had been.  Now, I am going to have to assume that by the time he returned home on that Monday police had some information on him because quite honestly, if they did not it makes things seem even more odd.  According to what Westerfield told police on the previous Friday night he had been at the same bar that Barbara Van Dam was at and they had in fact danced at the bar.  Barbara would deny this but independent witnesses agreed with Westerfield.  In fact, it has been said that the dancing they engaged in was rather, raunchy shall we say and referred to as "dirty dancing."  Then apparently sometime after returning home he had left in his RV.  I will agree that his story seemed a little odd.  He had supposedly driven first in a beach area and then a desert area saying he stayed at a campground (I saw no record if the police confirmed this) and basically after driving some 500 plus miles over the course of a little over two days returned home.  Police would later say that they were able to obtain 24 surveillance on Westerfield on the day of his return based on the fact that they found it suspicious that he had cleaned his RV extensively.  That to me seems fishy.... not that he cleaned the RV but that the police thought it was odd enough to put him under surveillance.  Over the course of the day it seems Westerfield was interrogated for many, many hours. It seems that not only was he not properly read his rights but the interrogations continued despite Westerfield asking for an attorney.  Apparently the officer involved with this admitted to these things in the trial.  At the end of the interrogation and after repeatedly denying involvement he was asked if he would take a lie detector test.  It was reported that he failed the lie detector.  It was then that the police were able to use those result to secure a warrant for a search of his home and his RV (this happened on February 5th, the day after his return).  

A few things should be pointed out at this point.  In my research I came across another blog that made a rather good point about how the search warrant was secured.  First it was noted that supposedly both Barbara and Damon Van Dam had also submitted to lie detector tests and that their results said they were being truthful.  However, the blogger indicated that at the time of their tests the Van Dam's had still not been completely truthful about their lives and the night leading up to Danielle's disappearance.  The blogger also made a good point in saying that if a lie detector is not a reliable enough source to be used in court, then it should not be allowed to secure a search warrant seeing as at least publicly there was nothing else on Westerfield at this point.

During their search the police would claim to have found a hand print belonging to Danielle in the RV above the bed (there is a claim that NO other prints were said to have been found, including Westerfield's) and that two small stains of blood that prosecutors would say belonged to Danielle was found on a jacket belonging to Westerfield.  The other big thing they found was on Westerfield's computer.  It was there that they found pornography.  Now, just how much, what type, how it got there, how often it was accessed and who accessed it would be in dispute, something I will delve more into later.  There was in fact at least some child pornography on the computer.  This amount was reported from anywhere from 6 images to 80+ images.  

On February 22nd, after being under constant surveillance since the 4th, and obtain results from their searches David Alan Westerfield was arrested for the kidnapping of Danielle Van Dam.  These charges would be upgraded to murder when her naked body was found on the side of a road on February 27th.  

So, how did Danielle die?  No one can conclusively say but a coroner could find no signs of a knife or gunshot wound.  The coroner would also determine that there seemed to be no kind of defensive wounds or signs of strangulation.  It was speculated then that the cause of death, although it was probably officially declared as undetermined, seems to likely have been suffocation.

The next dispute in this case would center on when her body was placed where it was found.  Some reports claim that the road in which she was found was a rural road and out of the way of main highway traffic while others agree with this on one level they also claim that the road was a well traveled road that was one often used to go to a local casino.  It appears that while the body was up a steep embankment it was fairly visible from the road. Prosecutors contacted a forensic entomologist to look at the colonization of bugs to determine when her body was placed at the discovery site.  According to reports the  entomologist told prosecutors when they believed that to have happened but the prosecutors disputed that because it was during a time in which Westerfield had been under surveillance. In the end the defense would confer with this entomologist, as well as two others, who all agreed and testified in court as their findings.  At this point the prosecutor apparently decided that the study of bugs was "junk science" and found their own "expert" to say basically that, in order to dispute the findings.  One has to remember that Danielle was reported missing on February 2nd and Westerfield was under constant surveillance (at least according to authorities) from the 4th until his arrest on the 22nd and still it was another 5 days before the body was found.

Now, before I go any more into the evidence or the trial I should point out that there were sources that say that just before Danielle's body was found the prosecutors and the defense were working on a plea deal in which Westerfield was to show them where the body was to avoid the death penalty.  Now, this was widely reported as fact it seems but I have to be honest and say I cannot confirm this as being an actual fact in the case.  Of course the source would go on to say that the negotiations of the deal ended when the body was found and Westerfield's cooperation was no longer needed to find her body.  The problem I have with this is that it would seem that although the body had been found that both sides would have still wanted to look into making a deal.  Westerfield would obviously still not want the death penalty and surely the prosecution not only would have wanted to avoid a trial, a capital case trial at that, but had to have known the evidence he had, or did not have I should say, was less than stellar.  I feel that since I found this report in more than one place that I should mention it here but I just am not sure I believe in it's validity.   

On June 4, 2002, just over three months after Danielle's body was found Westerfield went to trial for kidnapping, murder and child pornography charges.  Let's start with the child pornography charges. As I stated earlier there seems to be a dispute as to how much was found, how often it was activated (or looked at) and just how bad it was.  One report I read stated that the pornography itself consisted of about 1,000 images and that 80 of them were questionable as to the age of the girl, but that in the end less than 6 were validated as being child pornography.  There was also apparently evidence that the images had been downloaded approximately 3 years prior and a computer analysis showed that it was looked at approximately every other week.  There was one particular video file that it could never be proven it was looked at but some sources say the media focused highly on this to portray the image the prosecutor was emitting that Westerfield was involved in child porn.  I think this is important because the prosecutor would eventually use this as the motive as to why Westerfield would have done what they claimed he did.  I say they would eventually use this because their first idea of a motive (which I will address in a bit) did not quite go their way. The theory portrayed was that Westerfield was a child predator and that the pornography on his computer proved that.  However, it would seem if he was so obsessed with children to the point that it drove him into a neighboring home to kidnap and murder a girl (the body could not determine sexual assault) that he would have accessed these images more often, as well as downloaded or looked at them more, especially leading up to the crime.  The defense would argue that it was not David Westerfield but his 18 year old son Neal who accessed these images (Neal denied this) and would explain the fact that they were only watched every other week since that was when Neal was at his father's home.  It should be pointed out again that at the time of Danielle's disappearance Neal was at his fathers home.
The jury apparently did not believe the defense and ultimately Westerfield was convicted on that charge, although compared to the other charges this was the least of his worries.  

So now let's move on to the kidnapping charge.  Now, remember that Westerfield told the police he had seen Barbara Van Dam at the bar with her friends on that Friday night and that he had danced with her?  Barbara denied this for a while until apparently she obviously could not any more since there were independent witnesses to support Westerfield's story. Initially, presumably before Barbara was forced to admit she had danced with him, the prosecution would claim that the motive behind the kidnapping and murder was the fact that Barbara spurned Westerfield at the bar and this was an act of revenge of sorts.  When it came out that she had not spurned him the prosecution changed theories of motive and brought in the child pornography and pedophile theory.  At any rate the prosecution would claim that Westerfield had sneaked into the Van Dam home while Damon Van Dam was sleeping and into Danielle's room.  They even theorized that while he was still in the home Barbara Van Dam came home with her friends forcing him to hide until Danielle's parents went to bed.  At that point he grabbed Danielle and went out another door in the home.  

Let's look at this a bit closer now.  First off there are reports that there were absolutely no forensics found in the Van Dam home that connected Westerfield.  There was no DNA and no fingerprints.  This would seem unusual, especially if, as the prosecution theorized that he was in the home for over an hour.  It was reported that unknown fingerprints and DNA were found in the home that was never connected to anyone, at least that they could find. Secondly, there were witnesses from the bar that Westerfield had just left that testified that he was very intoxicated when he left the bar.  One has to ask how someone not only leaves no fingerprints or DNA in a home they entered but if he was in fact as inebriated as witnessed testified to how he could have managed to do all the prosecution said without touching anything.  Secondly, it was reported that while Barbara and Danielle had been in Westerfield's home the week prior, Westerfield had never been in the Van Dam home. Along with denying she had contact with him in the bar, Barbara also apparently told officers in the beginning that basically she barely knew Westerfield other than simply another person in the neighborhood but was later forced to admit that both she and Danielle had been inside his home recently.  Danielle was selling cookies and Westerfield invited them inside where it was admitted that Danielle had played around the home.  The significance in this is that while fibers and even Danielle's DNA or prints could have been in Westerfield's home, since he had never been in their home he would not have known which bedroom was Danielle's.  This would mean that using the prosecution theory, this inebriated man went into a home he had never been in before, left no evidence of his presence and would have wandered around before he found Danielle's room... all while her father was supposedly sleeping (I was unable to determine just where he claimed to have been sleeping in the house).  Then there was the fact that the Van Dam's had a dog.  It was reported that the dog not only had barked later that morning at the investigators who came to take the missing child report but to most anyone he did not know, so why did he/she bark and wake up the family when a stranger came into the home?  

The defense also argued that technically kidnapping could not be proven, whether their client was guilty or not apparently.  And, quite honestly I would have to agree with them.  In the end obviously it was a tactic to counter against the charge of capital murder.  In order to qualify for the death penalty there are certain criteria that has to be met.  Kidnapping is a federal offense and if that could be proven then it made the murder qualify as a capital crime.  If the kidnapping did not occur and Danielle was not alive when she was taken from house it was the defense theory that the death penalty would no longer qualify.  Reality of it was that there was no proof how or when Danielle died and in fact, it would seem that it would have been difficult to remove her from the house and she remain quiet if she was still alive when she left.  Now, this does not mean the defense necessarily believed their client was guilty but was likely pointed out and noted on the chance that the defense would find him guilty of the murder charge.  

As we know, the State always has the burden of proof when it comes to a case. It is their job to prove that the person they have elected to put on trial is guilty of the crime they say they committed.  And, while it is not the job of the defense to solve the crime for the prosecution by pointing to other suspects they also know it benefits them if they can show people or even reasons why someone else, other than their client could be involved and guilty.  In this case it was the Van Dam's that gave the defense some leverage.  You have heard me mention a few times that  the Van Dam's were a bit less than truthful about things in the beginning.  Of course when this fact came to light, no matter what their reasons may have been it did not make them look very good and the defense took advantage of that, some would say rightfully so.  Apparently the Van Dam's had a less than conventional marriage and lifestyle.  It had eventually come out that they lives the life of "swingers" in which they both would share and swap sexual partners.  There were also reports that on the night of Danielle's disappearance that the Van Dam's and their guests had smoked marijuana. These were things that the Van Dam's were less than up front about.  Some will argue they hid these facts because they did not want the focus to be on their lifestyle or things unrelated to their daughter's disappearance while others would say that they did it because they had more than that to hide.  I was never able to determine if somehow Westerfield may have been involved in this lifestyle also and possibly why Barbara Van Dam continually tried to distance herself from (denying being in his house with Danielle or dancing with him at the bar).  In the end their lifestyle, as well as the fact that they were less than truthful in the beginning was leverage for the defense and they took it.  The defense of course pointed out the fact that the Van Dam's had seemed to be hiding things involving their lifestyle and that that alone was suspicious as it would seem that they would have been as truthful as they could have been in order that everything was done that could be done to find their daughter. They also seemed to jump on the type of lifestyle they led (particular the "swinger" part) pointing out that it could have led them to have less than savory people involved in their lives and in their home. Of course there was still the unidentified prints (one report said some were on the banister leading to the second floor) in the home. 

I do not necessarily fault the defense for taking this angle whether I agree with it or not.  The reality of it is, by trying to hide their lifestyle and being less than forth coming and being caught in a few lies that may or may not have affected the fate of their daughter, the fact that they did handle those things that way were suspicious.  In the end their fear of their lifestyle nearly over shadowing the tragedy of their child being kidnapped and murdered did in fact happen, and maybe more so because of how they handled the situation.  Some would argue that the Van Dam's lost a child, the ultimate fear of all parents.  Then there are some who would argue or ask, were they, or someone they knew involved with this.

Another alternate suspect the defense offered was David's son Neal.  Although Neal, who was 18 years old at the time, denied downloading the pornography on his father's computer the defense did not buy it and pointed out what the computer science said about it's access. They also pointed out that he was visiting at his father's home at the time of the disappearance.  There are some who believe to this day that Neal was the one who was directly involved and that his father may have helped him by disposing of the body. Remember that after the report of her disappearance was made Neal was at the home but David was not, as he was on the strangely mysterious RV trip.

So how did they attempt to counter the evidence the prosecution did have.   There was a lot of talk of mishandling of evidence and even many questions involving it.  As far as the hand print belonging to Danielle inside Westerfield's RV it was said that her print was the only print found and that not even his were found.  It was also theorized or pointed out that the RV sat on the street (apparently many neighbors complained) unlocked so it was easily accessible to pretty much anyone, including playing children.  Then there was the blood found on his jacket.  Supposedly it was only two very small spots of blood belonging to Danielle.  There were several problems with this.  First, there were apparently no pictures taken of the jacket showing the blood.  The only picture that was taken and shown to the jury was one in which two small spots had been cut out of the jacket, supposedly for analysis.  Then there was the dry cleaner who Westerfield had taken the jacket to just after his trip who testified that there was no blood on the jacket.  But lastly considering they had determined that there was not a blunt force injury to Danielle then there should not have been blood to begin with.  So the question became, where did it come from?  Then there was evidence that fibers found with the body were "consistent" although not conclusive some found in Westerfields home and RV.  The defense argued that it was a common thread that was available in many places, in fact could have been in both homes as they were seemingly built around the same time.  I got the impression that this neighborhood had been erected much like track housing and that many of the homes in the area would have had the same type of carpet, but do not hold me to this.  The defense also obviously had to address the pornography but for me that was the separate charge and as I stated earlier they indicated that could have been from Neal Westerfield. Regardless obviously it could not be proven as to who downloaded the images or who accessed it but they had to address it since the prosecution was arguing that it was Westerfield's sick desire based on the pornography that pushed him to the point of kidnapping and murdering Danielle Van Dam.

In the end the jury did not believe the defense and after over 40 hours of deliberation they came back with a verdict of guilty on all counts on August 21, 2002.  In January of 2003 Westerfield was sentenced to death.

Later in 2003 a man by the name of James Selby wrote a letter to the police confessing to the murder of Danielle.  At the time he was wanted for raping women in the San Diego area as well as kidnapping a 9 year old girl in Oklahoma.  In 2001 he had sexually assaulted a 12 year old girl in Nevada.  Selby apparently lied in Tucson Arizona but seemed to be very transient.  He often traveled between Tucson and San Diego but he had also been in several other states including Colorado.  It was this connection in which likely prompted his confession of being involved in the Jon Bonet Ramsey case.  Prosecutors supposedly looked into his claims and determined that at the time of Danielle's death Selby was not in San Diego but in Tucson. Selby committed suicide in his jail cell on November 22, 2004. 

So what is it about this crime?  Is Westerfield guilty of murdering Danielle Van Dam?  I do not know.  What I do know is that the evidence is rather flimsy and questionable and for that alone I do not believe he belongs on death row.  Although for those who are anti-death penalty I learned that there have been cases within the California courts which make his execution unlikely any time soon.  There has not been an execution in California since 2006. Because of that in July of 2014 a judge ruled that California's death penalty was unconstitutional based on the length of delays among other things.  That ruling was overturned in November of 2015 so it remains to be seen what happens. 

So what would I need to know for sure one way or another if they got the right person.  Well, first off I would need some more conclusive forensics.  That would start with proof that Westerfield was in that house.  I read a report that claims that the Van Dam's actually cleaned Danielle's bedroom the day following her disappearance but again it is one of those things I cannot conclusively know as a fact. However, if this is true this does bring me more suspicious of them.  There is a part of me that understands their reluctance to being up front about their lifestyle in the beginning, maybe in fear that the focus would come off finding Danielle, or that (if they are innocent) they would be put under a brighter radar while the real killer got further away.  But, then there is the part of me that says who cares.  If you do not know where your child is you give all the information you have.... the good, the bad and the ugly.  But their lifestyle is not necessarily all that they were not up front about.  It was shown that in two instances involving Westerfield himself Barbara was less than truthful in her information... so why?  

I also want to know more about the supposed deal that was in the process when Danielle's body was found. Did he confess .. to anyone? Did he commit the kidnapping and murder or is it as some have theorized that Neal did the dead and his dad hid the body for him? Or, is all this talk, just that and Westerfield knew nothing?  

Beyond all of that it seems clear that whether Westerfield is guilty or not that there was some improper things done in the investigation, starting with his rights being violated when he asked for a lawyer.  I recently read a case where someone I knew was connected.  The defendant was clearly guilty of the crime and was justly convicted.  The conviction was overturned because the officer involved had refused to allow the defendant access to an attorney after repeatedly asking.  This is Law Enforcement 101!!!  In fact, in the retrial, where the person was again convicted, it was overturned again, obviously not for the same exact reason but because the officer who had violated his rights was allowed to testify about other things.  The defendant eventually pleaded the case and received much less than they deserved.  Officer's know better than this and yet it happens again and again.