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Jury recommends death for Westerfield

David Westerfield

SAN DIEGO, California (CNN) -- A California jury on Monday recommended David Westerfield be given the death penalty for the February kidnapping and murder of his 7-year-old neighbor, Danielle van Dam. But the judge in the case will decide whether to accept that recommendation.

Westerfield, 50, was convicted by the six-man, six-woman jury August 21 and the panel began deliberations on his punishment September 4.

After about two hours of deliberations Monday, the panel sent a note to Judge William Mudd saying they were deadlocked. Then after returning from a lunch break, jurors told the judge they wanted to deliberate some more. They reached a unanimous verdict about 10 minutes later.

Defense attorneys moved for a mistrial arguing that jurors may have been discussing the case outside the jury room, but the judge denied the motion.

CNN NewsPass VIDEO A jury in San Diego, California, votes the death penalty for David Westerfield in the kidnap-slaying of 7-year-old Danielle Van Dam (September 16) Play video   EXTRA INFORMATION CourtTV's In-Depth Coverage: Danielle van Dam Murder Case      LEGAL RESOURCES Latest Legal News Law Library FindLaw Consumer Center Select a topic Bankruptcy Discrimination Divorce Estate Planning Landlord-Tenant Personal Injury Taxes

Westerfield was visibly shaken after hearing the verdict.

After the jury was polled, one of the jurors broke down, forcing a short recess.

Under California law, the jury recommends the sentence, but the judge imposes it. In this case, Judge Mudd could reduce the recommendation of death to life in prison without parole. Mudd set Westerfield's sentencing for November 22.

Blood on jacket key for jury

Two jurors, interviewed by reporters after the verdict was read, said the "most significant" piece of evidence in the case was a jacket, left by Westerfield at a dry cleaner, on which Danielle's blood was found -- a piece of evidence that defense attorneys were never able to explain.

"The blood on the jacket -- where did it come from, and how did it get there?" said Juror No. 6, identified only by his first name, Jeffrey.

The two jurors also said they discounted so-called lifestyle evidence, presented by the defense, that Danielle's parents engaged in extramarital sexual activity, drank, and smoked marijuana. The defense had hoped to show a number of people had access to the van Dam house and Danielle because of that activity.

"It was their choice. They're adults. Whatever they wanted to do, that's fine. I thought it was kind of silly, I think, to bring that up," Jeffrey said.

Juror No. 10, identified only by his first name, Tony, said that throughout the trial, "It was a struggle to come to a meeting of the minds." But neither juror was willing to characterize the emotions in the jury room during the trial and penalty phase.

Tony said that in the end, the nature of the crime itself -- the brutal slaying of a 7-year-old girl -- was what primarily swayed him to vote for death.

In closing arguments in the penalty phase, defense attorney Steven Feldman urged jurors to spare his client.

"Death is not justice in this case -- please do not be swayed," Feldman said. "He'll never walk outside of this courtroom again, out of chains."

Feldman argued that Westerfield was an upstanding member of the community and a loving father who instilled in his children family values.

His children testified that they love their father, an engineer who helped design medical equipment, and that he does not deserve the death penalty.

In pressing for the death penalty, prosecutor Jeff Dusek argued that Westerfield showed "no compassion, no mercy, no pity" when he yanked the girl from her bed in the middle of the night late February 1 or early February 2, murdered her and then dumped her body. Danielle's body was found February 27 along a desert road.

Westerfield was a focus of the police investigation from the beginning and was arrested based on physical evidence, including the blood-stained jacket and Danielle's fingerprints and DNA found in his house and mobile home.

Defense attorneys argued that her DNA was left in the house when Danielle and her mother came to sell Girl Scout cookies, and they said neighborhood children sometimes played in the trailer when it was parked at a nearby park. They said investigators found no evidence Westerfield was ever inside the van Dam home.