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Jeffrey Toobin: Watching the Westerfield jury

Toobin

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(CNN) -- Jurors began an eighth day of deliberations Monday in the murder trial of David Westerfield, accused of kidnapping and killing 7-year-old Danielle van Dam in February. CNN legal analyst Jeffrey Toobin discussed the hints emerging from the jury room Monday with CNN.com.

CNN: The Westerfield jury is now in its eighth day of deliberations. Is there anything that we can read into the amount of time they're taking?

TOOBIN: There's a rough rule of thumb that juries tend to deliberate about one day for every week of the trial. This was about an 8-week trial and we're now in the eighth day of deliberations, so I don't think there's anything extradordinary about the length of deliberations.

Now, that is just a rule of thumb -- it often doesn't apply -- but I think it suggests that there is nothing extremely unusual about how long they've deliberated ... The other point to make is that the jury has sent several notes requesting evidence, but none of the notes have suggested that they are anywhere near a deadlock.

CNN: Superior Court Judge William Mudd lashed out at reporters, in particular some talk radio hosts, for criticizing the jury's pace last week. Is the criticism of the jury fair?

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TOOBIN: I don't think juries are above criticism, but I do think you should wait to see waht they do before you criticize. The fact that they're taking their time is not something to condemn: It's something that shows they are taking their work seriously, and no one should be criticized for that.

CNN: Jurors have asked for several readbacks, including testimony about the time of death from entomologist David Faulkner, testimony about the discovery of fibers in Westerfield's SUV and two of Westerfield's interviews with police. Can you handicap what they're thinking based on what they're asking to read back?

TOOBIN: The defense had to be pleased that they asked to hear the entomologist, Faulkner. He was the strongest witness who said that Danielle was murdered after Westerfield was under surveillance. That's certainly a good readback for the defense. The other evidence is mostly just very important evidence in the case, like Westerfield's statements.

What you never know is whether the requests of a single holdout or an indication of general unease about the evidence. That's what makes handicapping the readbacks very difficult. Another thing that is difficult in this case is that Judge Mudd is having the readbacks conducted in the jury room, so reporters can't see the jury as they're listening to the readbacks. Often, through body language, you can get a sense of what's troubling the jury. But here, there's none of that.

The only readback that really jumped out at me was Faulkner, because he was a problematic witness -- but he was probably the best defense witness in the case. He said some contradictory things and he wasn't 100 percent pro-defense, but he was a lot better for the defense than most witnesses.

CNN: Does the fact that he was originally commissioned by the prosecution help?

TOOBIN: Absolutely. The defense got to make the argument that here is an expert that the government trusted enough to hire, but he was rejected by the prosecution when his testimony didn't fit the needs of their case. That's a much better defense witness than simply a hired gun.

CNN: Were jurors allowed to take notes during the trial?

TOOBIN: Yes. This jury took an enormous number of notes. Several jurors filled several notebooks full of notes, and I think that's one reason why the jury is deliberating for a substantial period of time -- because it takes a good, long while for 12 jurors to compare handwritten notes on what a witness did or didn't say.

CNN: The defense has asked again last week to to have the jury sequestered. At this stage of the game, what would that accomplish?

TOOBIN: The defense has asked repeatedly to have the jury sequestered, especially after Samathan Runnion was abducted and killed -- an event that took place very close to San Diego. The defense attorney has been asking to have the jury sequestered both from publicity about other abduction cases and from all the attention given to the van Dam case. Once Judge Mudd did not sequester the jury at the height of the Runnion tragedy, it was pretty clear to me he wasn't going to sequester them at all, because there's only less press now.

I was in the courtroom when Mudd was discussing sequestration with the jury, and it was very clear that this jury desperately did not want to be sequestered. They have lives and responsibilities that they need to continue during jury duty, and Mudd was very much bowing to their wishes by not sequestering them.

CNN: So this will be a portion of an appeal if Westerfield is convicted?

TOOBIN: It will be raised on appeal, but it's unlikely to be a winning issue, I think, if he's convicted.