dictionary

Judge: Jury cannot convict on murder, but acquit on kidnapping

David Westerfield

SAN DIEGO, California (Court TV) -- SAN DIEGO — Should jurors be allowed to convict David Westerfield of Danielle van Dam's murder and at the same time acquit him of her kidnapping?

A judge in the case says no, according to his tentative ruling Monday.

Judge William Mudd told defense lawyers who had argued for adding the option that he was highly skeptical that the panel could hold Westerfield responsible for the murder and not the abduction.

"The only way the girl gets into the possession of Mr. Westerfield is by kidnapping," Mudd said. "That's the only way."

CNN NewsPass VIDEO Forensic experts in the capital murder trial of David Westerfield disagree on when Danielle van Dam was killed. CNN's Thelma Gutierrez reports. (July 30) Play video   EXTRA INFORMATION Court TV: Complete coverage of the Westerfield trial  Timeline: The conflicting theories of when Danielle van Dam was killed

The defense asked at a conference with prosecutors and the judge Monday that panelists be allowed to consider a second murder charge, first-degree premeditated murder. Such a charge is not linked to kidnapping and requires the prosecution to prove the crime was planned.

Judge Mudd said he was reserving a final decision on the matter until the last witnesses in the two-month trial testify, which is expected later this week.

Someone snatched Danielle from her suburban bedroom last February. Prosecutors allege Westerfield, a neighbor, abducted her and later raped and suffocated her. He faces charges of felony murder, meaning he killed her in the commission of another crime — kidnapping — as well as kidnapping itself and misdemeanor child pornography possession. Prosecutors are seeking the death penalty.

Prosecutor Jeff Dusek urged Mudd to reject the defense's request, saying only felony murder fit the facts of the case.

"It is simply, 'Did you do a kidnapping? Did that child die during the kidnapping,'" said Dusek.

Defense lawyer Robert Boyce argued that without the second murder charge, jurors who had reservations about the abduction part of the prosecution's case might feel pressure to convict if the only alternative was acquittal.

Danielle van Dam

"A juror who believes that the prosecution has proven that Mr. Westerfield is the actual killer, but a juror that has some doubts about how the murder happened or how the girl got where she got" should have an alternative to felony murder, Boyce said.

He pointed to testimony by Danielle's father about her occasional sleepwalking and other speculation that she might have walked away from her home during the night and said it was possible she could have been killed without being kidnapped.

"I'm not saying we are relying on those theories but those theories are certainly out there," he said.

But Mudd shook off those arguments, saying in a loud, agitated voice, "The parents have indicated no one had a permission to take the child out of the house. That's kidnapping."

Prosecutors expect to complete their rebuttal case Tuesday with the testimony of M. Lee Goff, a forensic entomologist who is expected to attack the findings of two defense insect experts. Those entomologists suggested Danielle's body was dumped along a roadside after Westerfield was under police surveillance.

Defense lawyer Steven Feldman said depending on how Goff's testimony survives cross-examination, he may call an expert in surrebuttal. That expert, he said, will come from out of state and may not be available until next Monday, significantly delaying closing arguments.

That potential postponement comes as there is increasing concern about the security of jurors and their exposure to news reports about the case. Last week, two jurors saw a man writing down their car license plate numbers, prompting Mudd to blame the media and threaten to close the court to cameras.

Additionally, the case of 5-year-old Samantha Runnion, who was kidnapped and killed in Orange County, continues to hold a prominent place in the southern California headlines.

After defense lawyer Steven Feldman said he was worried jurors might feel pressure to convict because of their anger at Samantha's accused killer, a man previously acquitted of molestation charges, Mudd said he still did not think sequestration of the jury was necessary.

As a precaution though, the judge said, he has ordered court official to begin making a contingency plan for sequestration during deliberations.