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Respondent’s Brief

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  • Respondent’s Brief

    I am listing below problems I spotted in the Respondent’s Brief (Robin Urbanski, October 8, 2012) to Westerfield’s appeal, together with my comments; there may be more problems I didn’t spot. There is a book on the case, titled “Rush to Judgement”, available from Most of the points below can be found in that book, and the page references in brackets are to the relevant page. Some references are also given to other sources, mainly the trial testimony: the name of the witness and the date of their testimony.

    Brief Page 1:


    “offenses committed on or about and between February 1, 2002, and February 22,”
    He was with the police most of the 4th, and 24 hour surveillance began that night (pages 2 and 325), so he couldn’t have committed any of these offences after that.

    “Van Dam” (on multiple pages)
    Usual spelling “van Dam”.

    Brief Page 2:


    A. Guilt Phase

    1. Prosecution's Case

    “Two children from a neighboring home arrived for a visit”
    It was not a visit: Brenda was going to babysit them while their parents attended a meeting (page 55); and there are inconsistencies over the time they arrived, whether one or both parents brought them, and whether one or both children came (pages 55 and 111).

    “Westerfield, arrived at a neighborhood dry cleaner's shortly after the business opened”
    It opens at 6:30 a.m. (Julie Mills, June 17); he arrived around 7:15 a.m. (page 168).

    “on a very cold morning”
    It was probably a bit colder than 50 degrees (pages 105 and 344).

    “He was wearing a thin T-shirt, thin shorts similar to boxer shorts, no shoes, and no socks.”
    He arrived in his motor home, in which he had slept, it was parked directly in front of the cleaners, so he only had a very short distance to walk, and he was probably wearing the same clothes he wore the previous day, and they might have been jogging shorts (pages 138 and 268).

    “He brought with him two comforters, other bedding, and a jacket.”
    The other bedding was two pillow cases (pages 143 and 536).

    “The jacket contained Danielle's blood.”
    The cleaners didn’t see that blood (page 271), nor could it be seen on the photo shown in court (page 273), and it wasn’t examined for spatter (page 273), nor was the actual stain sent to be tested (page 275), so it is questionable if it was there then.

    “A comforter contained the hairs of the Van Dam family dog”
    There were two hairs which might have come from that dog (pages 287 and 536): only a visual examination and mitochondrial DNA testing were done (page 288).

    “a weekend journey in his motor home that could hardly be described as a vacation”
    He wanted some sun (pages 2 and 114), and you can’t blame him for the poor weather (pages 119-121), nor did he expect to get stuck in the desert sand.

    Brief Page 3:

    “to the desert in Borrego Springs”
    That was on his way back to San Diego (pages 130-131).

    “Danielle's blood was found on the motor home's carpet”
    It was a single drop, which wasn’t photographed or measured, raising doubts whether it existed, and one of the DNA markers didn’t give a result initially, suggesting (if it existed) that it might have been an old stain starting to degrade (page 276).

    “her fingerprints were on a cabinet above the motor home's bed”
    It was a single handprint (page 306). And the forensic people stopped searching for prints once they found it, which wasn’t explained: it was as if they knew that this was her print, and was the only print of hers (pages 308-309).

    “Hairs with a mitochondrial DNA profile matching Danielle were found in the bathroom of Westerfield's motor home.”
    So they could have come from her mother or one of her brothers (pages 281-282); and there were only two of them in the bathroom (pages 529 and 532).

    “Hairs with a mitochondrial DNA profile matching Danielle were found in Westerfield's washing machine, dryer, and on the bedding from his master bedroom.”
    She, her mother and one of her brothers (Dylan) had been in his house about two days before, while his laundry was out, and she had been touching it (pages 259-260). How many of Brenda’s and Dylan’s hairs were found (and how many fibers from their clothes)?: the criminalists weren’t looking for that (page 279, and see Brief Page 21 below).

    “Danielle's badly decomposed body”
    The autopsy report described the degree of decomposition as merely “moderate” (page 219), and this is confirmed by the presence, intact, of various organs such as her heart and liver (page 269).

    Her body “was discovered off the side of a road”
    This implies that it was dumped from the road, but the steep embankment and the thick brush at that time would have prevented that (page 70), so it was actually dumped from the rough dirt track, a track that was probably impassable for Westerfield’s large motor home (page 71), higher up the mountainside.

    “in a remote part of San Diego County”
    It’s not that remote, it’s opposite a sand-mining operation (page 66), diagonally opposite a golf course (pages 65-66), there’s a housing development opposite that golf course (page 391), and a school just down the road. And it’s only 4 miles from El Cajon (MapQuest) and 13 miles from her home (as the crow flies) (page 61).

    “It had been dumped among trash.”
    The area was used as a trash dump (page 69), but the body was on a bed of leaves, there was no mention of trash in the immediate vicinity (pages 66-67).

    “Her mummified remains”
    The body wasn’t mummified, there was just superficial drying (e.g. pages 403-404), even the lips still had some tonicity (page 400).

    “no sexual assault testing could be conducted”
    So there was no evidence of sexual assault. Actually swabs were taken from the body and tested for semen (pages 539 and 541), and the surrounding leaves were also tested for semen, but none was found (page 540), nor in Westerfield’s environment (page 235, 521, 526 and 536). The small amount of blood in his environment fell far short of evidence of an assault (pages 34, 82, 103, 187, 237, 285, 456 and 501).

    “The facts and circumstances surrounding Westerfield's kidnapping and murder of seven year-old Danielle Van Dam”
    This was a purely circumstantial case, there’s no direct evidence he had anything to do with it (pages 248, 331, 335, 431, 469, 483 and 510).

    continued ...

  • #2
    Re: Respondent’s Brief

    Brief Page 3 (continued):

    Danielle is Missing

    “Dylan (age 6)”
    He turned 6 during the trial (page 4; Brenda’s testimony on June 6).

    “two neighborhood children whom she was supposed to watch that day”
    As pointed out above, it was only for the duration of a meeting, a t-ball meeting that morning (Julie Hennes, June 4).

    “The doorbell rang around 9:30 a.m.”
    As pointed out above, there was an inconsistency regarding the time: Damon originally said around 9:00, then later said around 9:00 or 9:30 (page 55).

    “The last time Brenda observed Danielle's door the previous night, it had been closed.”
    It was she who closed it, around 2:00 a.m.: it was previously open (page 10).

    Brief Page 4:

    Damon “ran up and down the street yelling Danielle's name”
    There was no testimony by neighbors confirming this (page 55).

    “Brenda called 911 and all of the neighbors”
    She only mentioned one neighbor, in addition to Julie Hennes (page 45).

    The Neighbor

    Friday, January25: “Westerfield said "hello," asked Brenda if he could buy her a drink,”
    He said he didn’t, and Denise Kemal didn’t even recall seeing him that evening (page 42).

    “the conversations, as she was there to spend time with her girlfriends”
    That’s true, but it’s the reason given on the 1st (pages 43-44).

    “The following Tuesday”
    The date of the cookie sale was uncertain, and Brenda changed her estimate (page 55 and 187), but bad weather on the Tuesday makes that day unlikely (page 131).


    “Kemal gave an account about the first encounter with Westerfield at Dad's consistent with Brenda's”
    As pointed out above, she didn’t even remember seeing him there.

    Brief Page 5:

    “Westerfield's house, he invited them inside”
    Brenda wanted to see his kitchen, which was being remodeled during the previous cookie sale (page 258).

    “While Brenda and Westerfield were in the dining room,”
    That may be true (page 197), but Brenda (June 6) said they were in the kitchen area.

    “Danielle asked if she could go look at Westerfield's pool”
    This was an opportunity, if he was attracted to Danielle, for him to invite them around so he could spend time with her, but instead he invites only the parents for an adult party (page 93).

    “While at Westerfield's home, Danielle and Dylan never went upstairs”
    According to Brenda (page 197), but she’s a known liar (pages 23-24, 206-215 and 489), and she wouldn’t necessarily have seen them go upstairs (page 198).

    Night Out At Dad's

    “but midweek the plan changed”
    That could be considered suspicious (pages 104 and 482).

    “The three women went into the garage and smoked marijuana”
    And two of them shared a beer (page 11).

    “Damon came into the garage at some point”
    He was wearing shorts even though it was very cold (pages 268-269, and contrast this with the attitude towards Westerfield in similar circumstances (see Brief Page 2 above)).

    Brief Page 6:

    “someone had opened the side door to let the smoke out”
    Or Denise stepped outside to take a phone call (page 23). And there couldn’t have been much smoke from just half a joint (page 13).

    “to prevent the children from entering the garage when the door was locked”
    Why would that door be locked? Because of their illegal marijuana smoking (page 14).

    “put the kids to bed for the night”
    Danielle was already in bed, and had already pulled up the covers, by the time Damon got to her room, which could be considered suspicious (pages 53 and 482).

    Brief Page 7:

    “Brady and Stone joined the three women in conversation; Westerfield was not part of the group”
    Brady (June 10) testified that Westerfield was with Brenda and her friends when Stone and himself arrived, and she introduced Stone and himself to Westerfield. Stone (also June 10) testified that the introduction happened a little later.

    “Westerfield's two friends asked if they could join”
    Denise (June 10) testified that she asked Westerfield’s friend Jeff to play, and his friend Garry also testified he was invited (June 10).

    “Westerfield did not play with them”
    He said he was invited but declined (pages 44-45); Detective Alldredge, in his Affidavit for a search warrant, said Westerfield did play with them (page 42).

    “it was around 10:30 or 11:00 p.m. at this point”
    Estimates varied between 9:30 and 12:00 (pages 13-14).

    “Brenda never danced with Westerfield”
    He said she did, and so did other witnesses (pages 256-257), confirming the unreliability of Brenda’s testimony.

    “Brenda noticed a red blinking light on the alarm monitor”
    She was the only person to notice that, even Denise didn’t see it, and Brady and Stone didn’t know anything about that side door being open, even though they were there (pages 29-30).


    “Brady was the Van Dams' marijuana supplier”
    They bought it from him (pages 13, 48 and 240): was he arrested and charged?

    continued ...


    • #3
      Re: Respondent’s Brief

      Brief Page 8:

      “Meanwhile, Easton had made her way upstairs”
      According to Damon, Barbara Easton was in the room during Brenda’s first visit upstairs, and Denise testified she also went there (pages 15-16).

      “got into bed with Damon”
      The testimony was that she was just on the bed, on top of the covers, while he was under them (page 16).

      “where they were "snuggling" and kissing”
      He also rubbed her back (page 16).

      “Everyone convened downstairs”
      Denise originally (February 3) said that Damon didn’t come downstairs; her testimony at the trial was that she didn’t recall seeing him in the kitchen (page 30).

      “Twenty minutes later, the guests left”
      Some early media reports say an hour (page 230).

      “Damon and Brenda locked up the house”
      Brenda said she locked the front door, but Damon implied he did that (page 20). There is also confusion over who closed the side garage door: Brenda or Denise? (page 29).

      “and went to bed around 2:30 a.m.”
      Or 3:00 a.m. or even 3:30 a.m., according to some earlier reports (page 230).

      “Danielle was not with the group when they left”
      They didn’t leave together: both Brady and Stone testified (June 10) that Barbara and Denise left first, and they (Brady and Stone) left a minute or two later. But did one of them return later and only then take Danielle? (page 486).

      “At some point during the night”
      It was between 3:00 and 4:00 a.m. - this is important in determining the time of the kidnapping (page 33).

      “Damon woke up and noticed a red light flashing on the alarm monitor in their bedroom.”
      Why didn’t he notice it the first time (shortly before 2:00 a.m.)? (page 226). There are conflicting stories as to why he woke up (was it the dog or himself who needed the bathroom?), and where the dog was (in his room or Derek’s?) (pages 11 and 15).

      “He closed the [sliding glass] door”
      There was no testimony that his prints were found on it (page 29).

      “made sure all the doors were closed, including the side garage door, and checked the alarm panel”
      Damon’s only check that all the doors were closed was the check of the alarm panel; the check of the side garage door was just a visual check (June 5). And why would he have specifically checked that? There is reason to believe that he didn’t know about the first security breach (pages 30 and 230, also 481).

      Westerfield's Story

      “Westerfield's Story”
      This implies doubts as to its accuracy, yet there was plenty of testimony confirming it: cell-phone records (pages 152, 154-156, 160, 233, 325 and 588-590), gas receipts (pages 144-146, 152, 233, 511, 578, 595-596 and 672), credit card records (pages 124-125, 233 and 595), eye-witness testimony (page 233, but too numerous to mention: at his home, the Strand, the desert, etc.), and even physical evidence (pages 109, 159, 478 and 496).

      “the San Diego Police Department set up a "command post"”
      That was on the Saturday (page 56).

      “Detective Johnny Keene arrived at the command post,”
      That was only on the Sunday (Keene, June 11).

      “was assigned to contact all of the neighbors”
      Only the immediate residents in that block (page 92). Westerfield (and his son) could have been contacted (in person) on the Saturday afternoon, but wasn’t; and they could have phoned him at any time, Saturday or Sunday (pages 104 and 125).


      “The defense made much of the Van Dams lifestyle.”
      That should read “van Dams’ lifestyle”. They (and their friends) indulged in sex outside the bounds of marriage, behavior that most people would frown upon, it oversteps the boundary of what is generally considered normal and acceptable, they acted on their sexual desires; they were drunk and high on marijuana the night of the crime, and we don’t know how they behaved while in that condition; they behaved in a sexually provocative way at the bar, which would have attracted the attention of unsavory characters; they even invited strangers home for sex; and they had lied to the police about their lifestyle (pages 21-28, 46 and 235 481).

      “In response to cross-examination on this topic”
      The police decided very soon that their lifestyle was irrelevant (pages 22 and 24), so we don’t know how thoroughly this issue was investigated (probably not very), and the judge only permitted limited questioning on this issue (page 25), so we don’t know the whole story.

      “Damon Van Dam testified that he had had sex with Kemal”
      He also had sex with Barbara (page 18).

      “Brenda testified that she had had a sexual encounter with Kemal”
      She apparently had sex with both Denise and Barbara, and with their male partners, but attempted to disguise this by semantics: drawing a distinction between sex and sexual behavior or sexual relations (page 18).

      Brief Page 9:

      “He [Westerfield] claimed ...”
      That “claimed” is repeated again and again in the Brief, but only in connection with Westerfield. What the van Dams etc. stated is treated as fact, whereas what he said is treated with suspicion, even though they were known liars and there were many discrepancies in their stories (pages 7, 28, 30, 49-52, 199, 213, 222, 229-232 and 476); this was Law Enforcement’s attitude from the start (pages 99 and 250).

      “He claimed to have just decided that morning that he wanted to go to the desert.”
      The evidence indicates that he had intended beforehand to go to the desert but changed his mind when he couldn’t find anyone to go with him, but then decided to go anyway on the Saturday morning (pages 114-115).

      “He drove his black 4-Runner to the storage location, left it there,”
      How could he do otherwise (page 138)?

      “his house where he stocked it with groceries and filled the water tank using the hose in his front yard”
      He also drained some water (page 153) and cleaned the front windshield (page 115).

      “the hose had been stretched out to the sidewalk, double up, and tossed back across the front yard. They found this strange”
      Grammar: should be “doubled up”? Neighbors testified this wasn’t unusual, so the detectives’ suspicions were unjustified (page 248).

      “Westerfield's home was immaculate”
      Although the house appeared to be neat and clean, less attention had been paid to unseen things like a dirty oven and the accumulation of debris under the furniture (page 258).

      “[the hose] made it appear that Westerfield had left in a hurry”
      His other activities (see above) prove otherwise; the very fact that he only left home hours after the kidnapping, and then returned - twice - should be ample proof he wasn’t in a hurry.

      “when he got into the motor home, he realized he did not have his wallet”
      Prosecutor Dusek implied that he was already driving north on the freeway when he realized this (page 116).

      continued ...


      • #4
        Re: Respondent’s Brief

        Brief Page 10:

        “Westerfield claimed to have embarked upon the 30 mile trip to the Silver Strand on his own”
        There’s that “claimed” again; no evidence was produced - eye-witnesses, security camera videos - that Danielle (or anyone else) was with him on that trip (pages 125, 217 and 233).

        “After he parked, a ranger came by”
        This was about 5 hours later (pages 122 and 154).

        “apparently placing a $50 bill in the envelope”
        Westerfield disputed this (page 2), and a bank employee (Donna Boe, July 8) confirmed that their ATMs don’t dispense 50s (page 124).

        “After the encounter with the ranger, Westerfield did not stay long”
        But he did first go to the office to dispute the refund, supposedly leaving Danielle alone in the motor home, with many other people in close proximity (pages 120 and 123).

        “claiming it was too cold”
        There’s that “claim” again. It’s not clear if that’s what he said or if that’s just the detective’s interpretation of his words: he just said the weather was bad, probably meaning a combination of cold and insufficient sun (pages 118-119).

        “Westerfield did not explain how he paid for the three nights stay at the Silver Strand without his wallet”
        He said he had cash on him, about $80 (page 108). His ex-girlfriend explained that he kept his cash in his pocket and his credit cards in his wallet (page 124).

        “He thought he arrived back home around 3:30 p.m.”
        He wasn’t looking at his watch (pages 132 and 172), and it was probably around 4:30 (pages 153-154).

        “he also claimed to have looked for his wallet”
        There’s that “claimed” again: any proof that he didn’t?

        “found the wallet”
        It had slid under the seat (page 126). The fact that he immediately afterwards filled up with gas, supports his statements that he looked for and found his wallet (page 126).

        “did not take any "sand toys"”
        It’s hard work to do so when you are alone, and not worth it especially only for a weekend (page 137), and he expected to meet friends so he could have used theirs (page 173).

        “and claimed that because the area was noisy, he pulled in further, and got stuck in the sand.”
        There’s that “claimed” again; if he wanted to get away from people because he had a kidnapped girl with him, he could easily have just gone to a wash further away from the road (page 128).

        Brief Page 11:

        “The man charged him $150, but Westerfield only had $80"
        In cash; he was going to pay by credit card but Conklin wasn’t yet set up for that (page 108).

        “He wrote down the man's information”
        That appears to be a misinterpretation of Keene’s words: it was Conklin who wrote it down (see Brief Page 16 below).

        “claiming he wanted to see if the area was a place he wanted to take his son”
        There’s that “claim” again: any evidence to the contrary?

        “Once in Borrego Springs,”
        This is the Anza-Borrego Park; Borrego Springs is quite a few miles to the north (page 131).

        “Westerfield's journey did not stop there”
        He had to get home somehow.

        “he claimed to have parked”
        That “claimed” again; and there was an eye-witness (Heather Mack) who confirmed it, and the prosecution could have called a second witness (her co-worker, Santiago) if they wanted to attempt to dispute it, but failed to do so (page 161).

        “He woke up around 4:00 a.m.”
        Or maybe two hours later, there’s conflicting information, two scenarios (page 166).

        “High Valley and arrived about 7:00 a.m.”
        Keene (June 11) said “the area of” High Valley, and it couldn’t have been as late as that, as that’s about when he arrived at the dry-cleaners, so it must have been about an hour earlier for him to sleep for about an hour. So it seems that Keene mixed up the two scenarios (page 167).

        “so he slept there for another hour”
        Only if he arrived at the earlier time.

        “he claimed to have driven straight home”
        That “claimed again”; any evidence to the contrary? This is presumably a reference to Parga’s belief that the 4Runner had just been cleaned, but there wasn’t time to do that, after the dry cleaners and Keith Sherman and before Sergeant Wray (page 168).

        Brief Page 12:

        “he [Damon] felt their daughter was growing up too quickly”
        That could be seen as suspicious, that he was attracted to little girls of a certain age (page 482).

        “Keene had not asked a question to prompt such a response” (about a babysitter)
        On the contrary, they were talking about Damon and one of his children, when Westerfield made this comment about Damon and his children (page 106).

        “Westerfield was sweating profusely”
        No sweat was visible on a photo taken by the police during this interview (page 105). And did they photograph any of the other neighbors during their initial questioning?

        “despite it being about 50 to 55 degrees outside”
        Based on the temperatures at the nearby weather stations, it was probably about 10 degrees warmer (page 105).

        “Westerfield was "overly cooperative."”
        You could say the same of the van Dams and their other neighbors (pages 92, 98 and 481).

        “He pointed out areas in the home he believed the detectives should look in or walk through.”
        He pointed out areas they had missed (pages 91-92).

        “Westerfield had not mentioned cleaning the SUV as part of his weekend adventure”
        No evidence was presented of him cleaning it, or that he had time to do so, so this was just another exaggeration on the part of Detective Parga (pages 135-136, 168 and 252, and Brief Page 11 above and Brief Page 14 below).

        “Detective Parga detected the smell of bleach”
        It was in just one part of the garage, from an empty container; and she recognized the smell because she uses it herself (pages 195, 242, 252-253 and 520). Detective Keene, who was with her at the time, but on the other side of the garage, didn’t smell it (page 253; Keene, March12).

        continued ...


        • #5
          Re: Respondent’s Brief

          Brief Page 13:

          “Unsolicited, Westerfield unlocked all of the storage compartments”
          If it was unsolicited, it was nevertheless a reasonable assumption by Westerfield that the detectives would want to look inside as part of their search - and they did look inside. But Keene (June 11) merely said that Westerfield just made sure they were unlocked.

          “The interview was audio recorded”
          There is some uncertainty over whether the entire interview was recorded (page 180).

          “the recording was played for the jury at trial”
          Only part of the recording was played in court (pages 140 and 706).

          “when he described the portion of his trip to Superstition Mountain, Westerfield told Redden,"this little place that we, where we were was just a little small turn type place."”
          The Court TV transcript is a little different: “the little place that we were—we were at was just a small turn-off type place” (page 110). This was after Superstition Mountain, and closer to Borrego Springs (pages 2 and 130). In a 3-hour interview, some slips are to be expected, this one was probably because he usually was accompanied; and Damon and neighbor Julie Hennes also made “we” slips (pages 110-111).

          Westerfield's Odd Behavior

          “Sherman's granddaughter went outside to get the newspaper around 8:00 a.m.”
          Her estimate of the time was probably a little early (page 153).

          “and saw Westerfield standing outside his motor home”
          And didn’t see Danielle (page 115).


          “Westerfield failed the polygraph examination”
          The evidence indicates that the exam was manipulated, whether intentionally or not, and therefore he didn’t fail (pages 180-184). (The examiner made the room uncomfortably hot for Westerfield, constantly adjusted his equipment, and changed the questions he said he was going to ask, even though he had assured Westerfield he wouldn’t do so.)

          Brief Page 14:

          “his [Sherman’s] truck, which was blocking Westerfield's trailer”
          That’s another reason Westerfield wouldn’t have taken his sand toys (page 173, and see Brief Page 10 above).

          “Westerfield left his 4-Runner parked on the property, which was unusual”
          How could he not have left it there? (page 138).

          “he would bring his son”
          Or his girlfriend, Susan L., but they had just broken up (page 137). Why not his son this time? Apparently because of school commitments (he was a freshman), and the 3-day weekend coming up (pages 623 and 130; page 8 of the Court TV transcript of the Redden interview).

          “He had never seen Westerfield arrive alone”
          Westerfield had only been parking his motor home there for two months, and this was winter, the off season, so he wasn’t using it as often (pages 188, 214 and 135).

          “Westerfield would normally take his trailer, but not this time”
          Answered above: under “sand toys” on Brief Page 10, and the trailer was blocked, etc., on this Brief Page.

          “At the Silver Stand”
          Spelling: Strand.

          “someone immediately closed the front curtains across the windshield; all of the curtains on the motor home were closed”
          He was watching a movie when the ranger came; a prosecution photo shown in court showed several vehicles had their curtains closed; another motor home owner (Eugene Yale) testified that there’s nothing unusual about that; and Westerfield’s curtains were open the following day in the desert (pages 121-122).

          “no chairs, awning, or carpet had been setup outside”
          Westerfield wanted sun and there wasn’t much of that (pages 119-120).

          “other visitors described that Saturday as a nice, sunny, cool, but comfortable, day”
          This is disproved by the official weather reports: it was quite cloudy, there was a light wind, the temperature at the nearby airport was actually slightly lower than that on the following Monday, which Detective Parga described as freezing, and apparently no one was in the water (page 119).

          Park Ranger Neill knocked on his door: “he [Westerfield] immediately shut the door behind him”
          Probably because Neill had walked away so Westerfield followed, and there was a breeze blowing, and it was a public place with strangers around and he was no longer at the door (pages 122-123).

          Brief Page 15:

          “Westerfield insisted he had not overpaid”
          So instead of just quickly taking the money, he prolonged the meeting: not what you’d expect if he had a kidnapped child with him (pages 117, 125 and 250).

          “Westerfield remained outside while he [Neill] did so”
          He was puzzling over what he thought was a mistake by the Ranger (pages 124 and 250).

          “Minutes after the ranger left, Westerfield drove off”
          He first went to the office to return the money, as described by Urbanski in the very next sentence, but it was refused (pages 120 and 123).

          “he had only been there about three hours.”
          Probably nearly 6 hours, from probably a little after 10:00 a.m. to about 4:00 p.m. (page 154).

          “Westerfield approached a volunteer who worked at the Silver Strand”
          He did so before he drove off, leaving the vehicle unattended (page 120).

          “He pulled out his wallet”
          The volunteer was probably mistaken: he didn’t tell the detectives about the wallet the first time he spoke to them, didn’t remember what the person (Westerfield) looked like, and his description of the incident is more consistent with a wad of bills just being in Westerfield’s pocket rather than in a wallet (pages 123-124, and see my explanation on Brief Page 10 above).

          “which he told Detective Keene he had left at home”
          At home? I can’t find Keene saying that, and no reference is given, it seems to be Urbanski’s interpretation of Keene’s words; Westerfield told Redden he couldn’t remember if it was in the 4Runner or the house (page 3 of the Court TV transcript of the Redden interview).

          “It was unusual for someone to drive a motor home that far off the road”
          He wanted to get away from a group of noisy campers, the area was flat, and it was night, so it was a mistake easily made (page 128). And Strathearn’s estimate was that it was maybe only 20 or 30 yards from the hardpan.

          “Westerfield further stated that he had had a bad weekend”
          True: he left his wallet behind, forcing him to change his planned destination; the bad weather at the Strand, forcing another change of destination; and then stuck in the desert sand.

          “Ryan Strathrearn”
          Spelling Strathearn (e.g. page 128).

          “other people that had gathered”
          So several people were around the vehicle, and the curtains were open, but none saw or heard anything suspicious (pages 121 and 592).

          continued ...


          • #6
            Re: Respondent’s Brief

            Brief Page 16:

            Westerfield told them “his trailer had a flat tire and he had to leave it in E1Centro”
            He was probably trying to elicit sympathy and therefore help, but they might have misheard him: he may have said “last time”, and the listeners thought he said “last night” (pages 128-129).

            “Conklin arrived “around 10:00 a.m.””
            There is considerable uncertainty over the time Westerfield left Glamis - estimates ranged from 12:00 to after 3:45 - and therefore over the time Conklin arrived as well, but it was probably somewhat later than 10:00, and in fact Conklin gave that as the time he first heard that his services might be needed, not the time he arrived (page 156).

            “there was no further discussion as to how or if Westerfield could pay him”
            So it was not Westerfield’s fault he didn’t know that Conklin couldn’t yet accept credit cards (page 108).

            “Conklin wrote down his name and address on a piece of paper”
            So Urbanski’s statement based on Keene’s testimony (see Brief Page 11, above), that Westerfield wrote it down, is incorrect.

            “Conklin went to retrieve Westerfield's ramps”
            Westerfield’s “ramps” were just simple homemade wooden blocks (page 109).

            “and the shovel they had used”
            Conklin said “shovels” - plural (page 109).

            “he [Westerfield] left his shovel and ramps behind”
            It was Conklin’s shovels, and the “ramps” were virtually worthless (page 109).

            “a motor home parked in violation of posted signs at the Coronado Cays community”
            It was the parking lot in front of the Fire Station (pages 163 and 592-593); Westerfield didn’t see any signs prohibiting parking where he parked (the Yacht Club?) (Keene, June 11; page 163), so he didn’t break the law, unlike Sergeant Wray illegally parked at Westerfield’s home (page 158).

            “Westerfield forgot to mention his trip to the dry cleaner”
            Was he asked about his activities Monday morning? (pages 139-140). This was just a stop on his way back to High Valley, so hardly a “trip” (page 139).

            “It was very cold that morning”
            See Brief Page 2, above.

            “Mills had never seen him arrive to the store dressed in such a manner”
            Not even in mid-summer or during Santa Anas? Maybe because she hadn’t seen him in his motor home before (Mills, June 17). Maybe he did so this time because he didn’t want to arrive at High Valley too early (Brief Page 11).

            Brief Page 17:

            “he appeared tired”
            She said he looked sleepy, like he just woke up (page 254), which is not surprising as he had just woken up (see Brief Page 11, above).

            “did not want to talk much”
            Not surprising if he was sleepy.

            “He also arrived in his motor home, which Mills had never seen him do before”
            As alluded to above (Brief Page 16), these were not independent events: because it was early and the cleaners were on his route, he stopped there; and because he was in his motor home he was informally dressed. The events were linked, the one followed from the other, so it wasn’t nearly as unusual (and suspicious) as the prosecution tried to paint. Furthermore, he would most often have been returning from Borrego (page 173), and probably therefore on State Route 67 from Ramona (page 158), so the dry-cleaners would not have been on his route back to High Valley (or Sabre Springs).

            “brought a sport jacket”
            Detective Torgersen (June 17) testified that the receipt just said “jacket”, he assumed it was a sport jacket.

            “a couple of comforters”
            These were the motor home comforters, which Susan L. (his ex) said it was planned they would be cleaned in the winter (page 135).

            “Westerfield also forgot to mention a second trip to the dry cleaner's that same day around 1:40p.m.”
            So in the morning interview he forgot to mention a trip that he hadn’t yet made?! The quoted reference (Detective Torgersen, June 17) mentions the afternoon trip, and it’s not clear when Westerfield was supposed to have forgotten to mention it.

            “he was not smiling and talkative as he typically was”
            Hardly surprising as he typically didn’t spend almost an entire morning being questioned by police (pages 2, 91 and 254). The dry-cleaner’s front counter employee agreed that he might just have had a bad weekend, which even by his own account was the case (Belom, June 17).

            “He asked to have the clothes back the same day”
            This may have been in response to a question he was asked (page 242). It may sound suspicious, but no evidence was found on those items (pages 257, 274, 490 and 537).

            Westerfield's Child Pornography Collection

            He had an adult pornography collection, amongst which were a few images which were considered questionable (page 314).

            “39 movies that he [Detective Watkins] deemed "questionable,"”
            These were just clips, not full-length movies (pages 313 and 316).

            “"questionable," meaning they depicted children under the age of 18 in sexual acts and thus might constitute child pornography”
            If they were under 18 in sexual acts then they were child porn, there was nothing questionable about it. “Questionable” means that it was uncertain if they were under 18, or whether their pose could be considered sexual (pages 323 and 558). Detective Armstrong said they were not child porn, and Watkins (at the Preliminary Hearing, March 12) denied disagreeing with him, but the jury was not allowed to hear Armstrong’s opinion; and an Assistant US Attorney also said they weren’t child porn (pages 235 and 316).

            “"cartoon" drawings, or "anime,"”
            And therefore, in accordance with the jury instructions, not illegal (page 314).

            The Discovery

            “laying on her back in the dirt off the side of Dehesa Road”
            She was on a bed of leaves (pages 66-67 and 418). There was no direct access at that time from the road, so it would be more accurate to say that she was off the side of the dirt track (page 71, and see Brief Page 3 above).

            “It was a desert-type area”
            There was lots of vegetation, very different to real desert like the sand dunes at Glamis (pages 66-69 and 331).

            “no businesses or residences nearby”
            It was across the road from a sand-mining operation (page 66), diagonally opposite a golf course, the entrance to which was a mile to the west (page 66), and there was a school a mile to the east (page 80); there was a housing development opposite the golf course (page 391), and a house on the hill to the east (page 652) (presumably shortly before the school).

            continued ...


            • #7
              Re: Respondent’s Brief

              Brief Page 18:

              “15 yards off the road”
              That’s “as the crow flies”. Because there was no direct access at that time (see Brief Page 17 above), it might be more accurate to say that she was 100 yards from the road (page 71).

              “up an embankment”
              A steep 7-foot embankment (pages 66 and 70).

              “Portions of the body were missing”
              Only the left foot (page 76), unless you include the teeth (probably 3 of them) (page 77) and areas eaten away by maggots or (probably) coyotes (pages 87 and 220).

              “was badly decomposed.”
              According to trial testimony, but the autopsy report states that decomposition was only “moderate” (see Brief Page 3 above).

              “She was laying out in the open”
              Yes, but she was under an oak tree and there was thick brush in that area (pages 67 and 70-71).

              “in area where people had”
              Grammar: in an area.

              “Her body had been extensively fed upon by animals”
              Larger animals like coyotes had fed mainly on the limbs (page 399), with fly maggots feeding on the torso (pages 402 and 414-415).

              “Her skin was mummified”
              Exactly: the mummification, even after the second Santa Ana that month, was only superficial (pages 400 and 403-404). And maybe the body wasn’t there during the first Santa Ana.

              “Much of the tissue from her collar bone down was missing”
              In the case of most of the torso, it was only the external covering that was missing (pages 74-75 and 403).

              “There was no clothing on Danielle's body”
              There is a media report to the contrary, and two eye-witnesses (Deputy Sheriff Alston and searcher Morgan) couldn’t tell if the body was clothed, and the other searcher who found her (Heimburger) implied there had been tampering (pages 72-74). (All three testified on June 4.)

              Dr Blackbourne “could not rule out suffocation”
              Which would often leave visible trauma, but none was found, so we can’t be sure that’s what happened (pages 14, 78 and 219).

              PMI “ten days to six weeks by Dr. Blackbourne's estimation”
              That ten days fits into the entomological calculations, and if we use four weeks instead of six as the maximum, 80% of that window excludes Westerfield as he was under surveillance (pages 326 and 334).

              “as her genital organs were gone, he could not reach a conclusion”
              But the absence of semen/sperm anywhere on her body, on the surrounding leaves, and in Westerfield’s environment, casts doubt on a sexual assault, particularly a sexual assault by him (pages 235, 521, 526, 536 and 539-541).

              “Dr. Blackboume determined that the manner of death was homicide.”
              That could not be determined based on medical facts, but was based instead on the “circumstances of the case”, basically meaning the presumption of kidnapping (page 220). Did he consider and exclude hypothermia: she sleepwalked outside, then Damon locked that door, so she couldn’t get back in; and was her medical history examined? (page 219).

              Brief Page 19:

              The Scientific Evidence

              “had a difficult time obtaining known prints from Danielle's mummified fingers ... He had to remove her
              hands and submerge them in embalming fluid to rehydrate them”

              And the skin had to be removed from her hands (page 603). So how reliable is the match he claimed? Has the reliability of rehydration been scientifically established? (page 306). I’m concerned about the possibility of uneven rehydration, or unevenness in the skin when it was flattened. Also, the match was on an unusual part of the fingers, the rear of the knuckles (page 310). Has the reliability of such matches been scientifically established? And there is sometimes remarkable similarity in the prints of family members, so could that print have come from one of her brothers? (page 310).

              “It took one week before he could make an identification”
              It took him “all the way through from the 20th [February] through the 7th [March]”: that’s two weeks (page 306). But what’s remarkable is that he started one week before the body was found. And he was taking photographs as late as May 10th: that’s more than two months.

              “four fingers, two of which matched Danielle”
              One finger had enough points for him to be confident of a match, the other not (page 555).

              “cabinet 10 inches above the bed”
              The bottom of the cabinet is 10 inches above the top of the lower stand (page 604). To get the distance above the bed, you have to add the thickness of the top of the lower stand, which is about one-and-a-half inches. The location indicates she wasn’t bound (page 308).

              “Danielle was moving when it was made -- her hand did not simply make the print and then lift back up”
              Maybe just her arm was moving.

              “his trained "trailing dog" Cielo”
              His [Frazee’s] trailing dog was Hopi; Cielo was his cadaver dog (page 193).

              “Cielo "alerted"”
              That’s what Frazee claimed at the trial, but he said nothing at the time of the search, and the detective (Tomsovic) supervising the search didn’t see an alert; the first time Frazee claimed an alert was when Westerfield was arrested, and he merely claimed that Cielo might have alerted, he wasn’t sure; and Cielo hadn’t alerted two days earlier (pages 201-204 and 65).

              Cielo “showed "interest" in a shovel”
              The “interest” lasted just 5 seconds, twice (page 203); this was before the body was found, and Frazee’s imagination was working overtime, he thought the shovel had been used to bury the body, but as we discovered later, it wasn’t buried (page 195).

              “and lawn chair”
              It probably was a lawn chair, but Frazee merely said “some sort of lawn furniture” (pages 203 and 526).

              “Soriano examined stains on the jacket”
              That jacket had been in police custody for almost a week (7th to 13th) before he discovered that evidentiary stain (page 272).

              continued ...


              • #8
                Re: Respondent’s Brief

                Brief Page 20:

                “the stain on the carpet of the motor home”
                As previously pointed out (Brief Page 3), one of the markers in the DNA profile didn’t give a result initially (page 276).

                “siblings from the same mother will all have the same mitochondrial DNA”
                And so will the mother and other maternal relatives (page 265).

                “hairs that been”
                Should read: “hairs that had been”

                “recovered from the bathroom rug”
                Only one hair linked to Danielle was recovered from that rug (page 532).

                “All of the hairs contained the same mitochondrial DNA profile as Danielle”
                That’s just those hairs on Exhibit 124 (pages 608-609). Some of the samples Holland was sent did not have enough DNA for mitochondrial DNA testing results to be obtained (page 285), and some didn’t match Danielle (pages 522, 528 and 549, also page 284), and they weren’t included on that Exhibit. As previously pointed out (Brief Page 3), she had very recently visited Westerfield while his laundry was out, and she had touched it, so finding her hair there is not surprising. She was supposedly assaulted in his bed for hours (actually two of his beds), yet the sum total of evidence left behind there was a few hairs (pages 229, 253, 488-489, 496-508 and 536). That’s difficult to believe. Also, some hairs came from the dryer lint in Westerfield’s garage, suggesting they got into his laundry before that weekend, in other words from the cookie sale and not a subsequent kidnapping (pages 261-263 and 609).

                “Tanya Dulaney”
                Spelling “DuLaney” (and on Brief Page 21 below).

                “many orange and blue fibers all over clothing that had been found on top of, and inside of, Westerfield's washing machine and dryer”
                Not on top of the washing machine (pages 512-516). And the total number of evidentiary blue fibers in his house was only 10 (pages 505 and 607). The innocent explanation given above for the hairs applies to the fibers as well (and see Brief Page 21 below for more on the blue fibers).

                Brief Page 21:

                “fibers that appeared to be similar to the Van Dams' carpet on the motor home carpet”
                These could have come from another house in that development: no evidence was presented that this possibility was excluded (page 302-304). There was just 1 on the carpet by the bed (page 528), 3 on the hallway carpet (page 530), and 1 on the bathroom mat (page 543); none were found in his house or SUV (pages 505 and 507), which suggests they got to the motor home directly from the van Dam home (if that’s where they came from) (page 304).

                It’s a microspectrophotometer (page 304).

                “Using that equipment, Dulaney formed the opinion that the fibers were consistent with the Van Dams' carpet, and were inconsistent with Westerfield's home carpet and motor home carpet”
                She may well have used the microspectrophotometer to form that opinion (and one hopes she did), but it’s not stated in the testimony (page 304).

                “dog hairs that Dulaney had lifted from Westerfield's dryer lint, motor home carpet, comforter that had been taken to the dry cleaner's, and motor home bath mat”
                There were 18 in the dryer lint (page 519), 2 on the motor home carpet (page 530), 2 on the comforter (page 536), and 1on the bathroom mat (page 543). It is significant that the vast majority were in the dryer lint. As pointed out above (Brief Page 20), this suggests they got into Westerfield’s environment before that weekend, and that the small number in his motor home were transferred there on his laundry from the cookie sale (page 287).

                “mitochondrial DNA testing on the dog hairs showed that four of the collected hairs matched the profile of the Van Dams' dog [Layla]”
                This test is not as powerful with dogs as it is with humans: apparently nearly 10% of dogs would match Layla (pages 287-288).

                “and the [van Dams'] dog could not be excluded as the source of any.”
                That’s just any of the five hairs tested by Halverson, one of which gave no results (pages 626-627). In fact, there were numerous animal hairs in the motor home which were not similar to Layla’s (pages 258, 288, 526, 530-533 and 542).

                “Chemical analysis with the spectrophotometer revealed that all of the blue fibers in the motor home were consistent with fibers discovered on the sheet used by the medical examiner to wrap Danielle's body”
                There were probably numerous blue fibers in the motor home (pages 291, 526 and 530-531): for a start, the carpet was blue (page 529) and there were two blue towels there (pages 532-533), but the quoted statement refers to some short blue-gray nylon fibers (page 291). None of those fibers were analyzed with the microspectrophotometer, and few were analyzed with the infrared spectrometer, so it’s possible that none of them matched (page 297). But even if they did, they were probably relatively common, so they might not have come from the same source as those from the body sheet (page 297). The source wasn’t found, and testimony did not exclude the possibility that these fibers came from the van Dam home or even from a member of law enforcement (pages 37, 242-243, 297-298 and 301) .

                continued ...


                • #9
                  Re: Respondent’s Brief

                  Brief Page 22:

                  “including a long orange fiber in the necklace on Danielle's neck at the time her body was found, one orange fiber on Danielle's head”
                  That wording implies two of the evidentiary orange fibers were with her body, in fact there was only one, and it was tangled in her hair, and her hair was tangled in the necklace (pages 289 and 539-540).

                  “(23 RT 6196.)”
                  Punctuation: that should presumably read “(23 RT 6196),”

                  “20 to 30 orange fibers in the clothing in side of Westerfield's washing machine”
                  “in side” should be “inside”; the “of” is surely redundant; and the contents of the washing machine were apparently just linen, not clothing (page 512). (This is possibly a misunderstanding due to Shen referring to the machine as a “clothes washer”.) Only a few of the fibers were tested, and many weren’t even collected (page 292). Also, there were apparently two different types of these fibers (pages 295-296).

                  “50 to 100 orange fibers on the clothing on top of the dryer, and 50 to 100 on the clothing inside the dryer”
                  There was also linen in those places, and the clothing was not just Westerfield’s, it was also his son’s (pages 514-516).

                  “an orange fiber in the front passenger seat, several on the rear seat and rear passenger arm rest, and several on a towel inside a laundry bag”
                  1 on the front seat, 7 on the rear seat and 4 on the arm rest, but 2 weren’t consistent (as stated in the Footnote below) (pages 522-523); and 10 on the towel (page 521).

                  “These fibers were all microscopically similar”
                  But few were subjected to more discriminating tests, and none were subjected to all the tests (pages 521 and 523).

                  “There were also blue or gray fibers in the laundry and bedding items that were also located in the vegetation collected from the site where Danielle's body was recovered as well as in clothing recovered from Westerfield's laundry”
                  The “bedding items” must refer to the bed linen in the laundry: none of these fibers were reported on his bed (pages 512-518). These were supposedly the same as the blue fibers referred to above (Brief Page 21). There were 10 in the laundry, but none on the bed and only 1 in the vegetation (pages 516 and 540). Why is the laundry mentioned twice: was the first mention intended to apply to only bedding in the laundry, and the second mention to only clothing in the laundry? It was not specified which of the various bedding and clothing items in the laundry the fibers were found on.

                  “These items were also similar and could have come from a common source”
                  But the inadequate testing, as pointed out above (Brief Page 21), means that this is weak evidence, so they might not have come from a common source.

                  “fiber evidence becomes all the more significant when different types of fibers are found in multiple locations; it becomes much less likely that the fibers are from a random source”
                  When the three van Dams visited him selling cookies, they would have had various different fibers on them, some of which would have been deposited in his house, and some of which would likely have been subsequently transferred to his vehicles. So those fibers (and they might anyway not have matched), didn’t have to have come from random sources for them to have been innocently deposited (pages 256 and 616).

                  2. Defense

                  “Neighbors and acquaintances testified that Westerfield would leave his motor home unlocked when he was loading and unloading before or after a trip”
                  He wasn’t loading/unloading when Stephanie Escadero and Mark Roehr entered it (page 188), which considerably expands Danielle’s opportunities for entering it.

                  “when preparing for a trip, he would typically park the motor home along side his house”
                  It was more often opposite his house (pages 189 and 214). And “alongside” not “along side”.

                  “for a day or several days at a time”
                  No evidence was presented that all that time was actually spent preparing for a trip (page 138).

                  “The weekend of February 1, 2002, however, the neighbors did not see Westerfield preparing for a trip”
                  Some neighbors did see the motor home on the Saturday morning: Hung, Franklin and Stinebaugh testified to doing so (page 55), and Franklin testified to seeing actual preparations for the trip (page 153).


                  “Two fibers discovered in the SUV were inconsistent.”
                  Mentioned above (Brief Page 22). As in the case of the motor home (Brief Page 21), there were probably many that were inconsistent (pages 520-523); what was probably meant is that two they initially thought might be consistent, on closer examination proved not.

                  Brief Page 23:

                  “motor home was only outside of his home for a very short time the morning of February 2nd”
                  Probably no more than an hour (page 153). As he was alone, he wouldn’t have needed to take as much as usual. If he was guilty, he wouldn’t even have returned home (pages 115, 233, 248 and 496).

                  “they never went to the Silver Strand, Glamis, Borrego Springs, and Superstition Mountain all in the same weekend”
                  People adjust their behavior according to the circumstances, such as the weather (page 137). Borrego Springs is on the way back from Glamis, and they would (always?) stop there to dump the waste (page 173). And Superstition Mountain was just a detour on his way back home on this trip, to see if it was a suitable place for a future trip (page 130).

                  “they would simply throw the hose on the front lawn when finished”
                  Exactly, so the detectives weren’t justified in their suspicions (see Brief Page 9 above).

                  “The break-up was difficult for Westerfield”
                  That’s a relationship with an adult female, one of many such relationships he had, casting serious doubt on the belief he is attracted to little girls (pages 234-235, 320 and 617-618); and his 1996 divorce was also difficult (Tania P., August 29; Neal Westerfield, September 4), but that didn’t cause him to react violently (pages 44 and 130).

                  Susan L. “told law enforcement officers that she "found [Westerfield] sitting outside" that evening”
                  Her exact words aren’t quoted, we only know that the transcript of the interview appears to indicate that; her testimony was that he said he was outside, but she hadn’t seen him, but the jury was admonished to disregard that.

                  “She additionally opined that Westerfield became forceful when he drank alcohol.”
                  She said there was one occasion he became forceful, but didn’t explain what she meant by that (pages 93-94). This was a word which the prosecutor used (put in her mouth): she herself might have chosen a different word, maybe “assertive”.

                  continued ...


                  • #10
                    Re: Respondent’s Brief

                    Brief Page 24:

                    “Westerfield would typically park the motor home on the side of the house the day before they left on a trip and the day following”
                    So that was his routine when there was someone with him: what was his routine when there wasn’t?

                    “they would ride sand vehicles in the dunes every time”
                    Again, that’s when he had people with him - and also for longer duration trips (see also my response on Brief Page 10 above).

                    “[the Laspisas] had not been there on Super Bowl weekend for three years”
                    After Westerfield moved to Sabre Springs, there was far less frequent contact between him and his former neighbors (Debra Laspisa, July 8).

                    “he [Dave Laspisa] could remember only one occasion where Westerfield arrived in Glamis without his trailer of sand toys five years prior”
                    He went to the desert sometimes before he had sand toys, so he couldn’t take any with him, but went there anyway (page 478). Susan L. said he only sometimes took them (page 478). And he most often went to Borrego, and would not have taken the toys there (page 173).

                    “Laspisas wife recalled no such occasion”
                    This is presumably a reference to her statement that he hadn’t gone to the desert without his toys after his 1996 divorce: she wasn’t asked about before then, and in fact confirmed he went to the desert before he had sand toys (page 478). And she could only testify from her personal knowledge, not hearsay. And it’s “Laspisa’s wife” not “Laspisas wife”.

                    “Dave Laspisa had never been to the Silver Strand with Westerfield”
                    What’s the relevance of that? Had he ever been there without Westerfield?

                    “much less the Silver Strand, Glamis, Borrego Springs, and Superstition Mountain all in the same weekend”
                    See my response under Brief Page 23, above. This was just an attempt by the prosecutor to make Westerfield’s weekend trip look suspicious (page 137).

                    “She [Nasland] claimed to have seen Brenda Van Dam dancing with Westerfield”
                    There’s that “claimed” again: so did others (see my response to Brief Page 7 above).

                    “but not too close to Westerfield”
                    She might not have seen physical contact, but others did: Patricia Le Page and Duane Blake (page 256).
                    “She also observed Westerfield to be "drunk" that night”
                    The bar manager didn’t think he was (page 257).


                    “Laspisa winked at Westerfield when he took the witness stand”
                    Is that intended to show bias on the part of that defense witness? There is reason to believe that various prosecution witnesses were biased: Elkus (page 191), Hoeffs (page 191), Kemal (page 191), Frazee (page 196), Conklin (page 107), the van Dams (pages 191-192 and 211), Ott (pages 191, 282 and 451), the police (page 453), Peer, Graham, Shen and DuLaney (page 300), the crime laboratory (pages 451 and 493-494), the jurors (pages 446, 461 and 463), and even the judge (pages 316-317 and 400).

                    Brief Page 25:

                    “and told him [Seebruch] he planned to take his "ATV" to the desert that weekend”
                    Confirming what I said above (Brief Page 9).

                    “Westerfield failed to mention anything about the Silver Strand”
                    Not surprising as that wasn’t his original destination, he only decided to go there the next day, when he realized he didn’t have his wallet (page 116).

                    “[found pornographic images] as well as on Neal's laptop”
                    Lawson (July 3) merely said that there was nothing relevant on it on the specific dates he checked (basically the weekend Danielle went missing), but Watkins (June 26) said there was no pornography on it.

                    “Lawson explained ... but the location of the loose media in Westerfield's home office was significant in determining who was the responsible party for downloading the images”
                    He merely said that the location “can be helpful”. Prosecutor Clarke’s attempt to solicit a stronger statement was successfully objected to. As Westerfield’s son also worked in his father’s office, that location would have been weak evidence, especially as he stored his games there (pages 313 and 318).


                    “Through this testimony, Westerfield was apparently attempting to establish that fibers could have been transferred from Brenda to Westerfield by virtue of this close dancing”
                    And the criminalist Shen agreed that this was the case, and in significant quantities: 100 fibers (page 256). The fibers could also have been transferred if they had just brushed against each other during conversation, and Brenda admitted to being a physically touchy person (pages 257-258), but the main likely source of transfer was the cookie sale (page 256), also previous sales and deliveries/payments (page 258).

                    “Le Page mentioned in the bathroom prior to her testimony that she was taking Vicodin for back trouble and needed to take more”
                    The point of this rebuttal (River Stillwood, July 24) was that Le Page testified she hadn’t taken any that day, so the prosecution was presenting evidence that she may have done so, and therefore may not have been a truthful witness. Maybe she did take some medication, as Stillwood suspected she was going to (but didn’t actually see her doing), but it was an alternative medication, in which case Le Page wasn’t untruthful.

                    continued ...


                    • #11
                      Re: Respondent’s Brief

                      Brief Page 26:

                      “the defense attempted to present forensic evidence suggesting that Westerfield could not have killed Danielle because her body was dumped at the Dehesa Road location sometime after the police surveillance commenced”
                      They presented forensic evidence that her body was dumped long after police surveillance commenced (pages 334 and 100).

                      “Faulkner attended Danielle's autopsy”
                      At the request of law enforcement (page 333).

                      “and later went to the Dehesa Road scene”
                      Later that same day (page 334). So just 24 hours after the body was discovered.

                      first infestation “10 to 12 days prior to the recovery of the body”
                      He was actually measuring from noon on the following day (page 334).

                      “he could not estimate with any degree of scientific certainty the maximum interval the insects could have deposited eggs on body; he could only express an opinion as to the minimum interval”
                      Then why was he so confident that the 16th was the earliest? (page 426).
                      Faulkner didn’t explain what he meant by that statement (about the maximum), or rather why he agreed with that statement by the prosecutor, but it might have been because you can’t be sure how long it would be before flies arrived at the body and laid their eggs: it might be within minutes or it might be within hours (page 332). A delay of two weeks would be exceptional. It would have helped the prosecution had they given examples of such a long delay. In the Porter-Cwik case, both Faulkner and Dusek (who were the entomologist and prosecutor on both cases), had no difficulty believing that entomology also gave a maximum time (pages 443-445).

                      “he could not rule out the possibility that the body had been there for a longer period of time”
                      But he said “the things I'm looking for that would indicate a longer time were not present” (page 428). So he did rule it out. If entomologists can only give a minimum time, why did law enforcement bring him onto the case? No matter what date he calculated, it would not have excluded the man who had already been arrested.

                      “He further noted that mummification could delay the onset of insect activity as the dried out condition of the body does not attract insects in the same manner a moist environment would.”
                      They (Dusek and Faulkner) were referring to the condition of the body as it was when found (page 393). That was after 10 days and one Santa Ana (according to the defense scenario), or 23 days and two Santa Anas (according to the prosecution scenario), of being outside exposed to the elements. It is therefore irrelevant to the condition of the body during the first few crucial days (page 394).

                      3. The Prosecution's Rebuttal

                      “Neal Westerfield was 19 years old at the time of trial”
                      18 at the time of the crime, and 16 when most of the questionable images were downloaded (pages 90 and 322).

                      “that he would typically accompany his father to High Valley”
                      The motor home had only been stored there for two months (pages 188, 214 and 588), which is too short a time to draw conclusions from. And see my response to Brief Page 14 above.

                      Brief Page 27:

                      “Typically, they would take the trailer with sand toys to the desert”
                      Yes, “they” (father and son) would typically take the trailer, but did he (the father) typically take the trailer when he was alone? He didn’t typically take it when he went with Susan instead of Neal, and not when they went to Borrego (see Brief Page 24 above).

                      “They never went to the beach and the desert in the same trip”
                      Neal (July 24) actually merely said he didn’t recall doing so. Others (Danielle L. and Jennifer L., both July 9) testified they had done so (page 119), and for a reason, the same reason Westerfield gave: bad weather (e.g. Brief Page 15 above).

                      “his father told him the week prior he was going to go to Borrego Springs, but did not ask him to go along”
                      This was apparently because of school commitments (see Brief Page 14 above), and you can’t use the sand toys there (page 173).

                      “Neal copied some of the pornography from the media in Westerfield's office to the computer in his bedroom”
                      Which included five of the “questionable” images, but he wasn’t charged, which reinforces the suspicion that law enforcement didn’t genuinely believe it was child porn (page 318).

                      “All of the pornography Neal accessed appeared to involve adult women”
                      Which adds to the doubt that his father possessed any child porn (page 318).

                      “William Rodriguez specialized in assessing human skeletons in difficult cases, such as where the body was burned or decomposed, in effort to identify the deceased as well as determine the manner and cause of death”
                      So not in determining the time of death, especially not of the recently deceased (pages 328-330).

                      “Danielle's body was mummified to a high degree”
                      That is the term he used, but it’s clear from his description - shriveled hands and blackening of the tissues seen on the photos - that mummification was only superficial - and that was after the second Santa Ana (see Brief Page 18 above).

                      “which can happen very quickly with the body of a small child”
                      She wasn’t that small: about 60 pounds compared to the 48 pound pigs that Goff uses as models for adult humans (page 411); and Rodriguez, in his justifying explanation, referred to infants, newborns and fetuses: all much smaller than Danielle. And what is “very quickly”? Rodriguez mentioned “within 24 hours”, but then nullified that by talking about different degrees of mummification, and Egyptian mummies which are thousands of years old (page 398).

                      “insects would not have been able to penetrate her mummified skin”
                      They didn’t have to, there are natural body openings, all of which were immediately exposed if the body was naked, and there would have been injuries if she had been assaulted, providing additional access sites (e.g. pages 401-402, 416 and 437-438). The maggot hole in her neck shows that they were able to penetrate her skin, and argues against the rapid mummification theory (pages 413-414).

                      continued ...


                      • #12
                        Re: Respondent’s Brief

                        Brief Page 28:

                        “assuming she had been transported in a motor home for 24 to 36 hours, insects would have been unable to reach her during that period as well”
                        Rodriguez was asked about a motor home, but his reply indicates he was thinking specifically of a closed external compartment of a motor home (page 406). But in that case decomposition would likely have been accelerated, probably reducing mummification (page 405). And decomposition odor should have escaped and attracted flies, but there was no testimony of flies hovering around the motor home that weekend (page 488). And a strong smell of decomposition would have been left behind (page 405). And a 24-36 hour delay is small in comparison to the nearly 2 week gap which has to be bridged for Westerfield to be guilty (page 334).

                        “it is difficult to estimate accurately how long the individual had been dead”
                        Based on the condition of the body alone, yes, that’s why forensic entomology is so valuable (pages 326 and 329).

                        “her state of decomposition, that state was what he [Rodriguez] would expect to see after four to six weeks”
                        So he disagreed with the local expert, the Medical Examiner Dr. Blackbourne, and with the nationally known forensic pathologist Dr Cyril Wecht, that only 10 days was possible (pages 326 and 669). Rodriguez’ lack of experience in estimating the PMI of the recently deceased, is evident here (see Brief Page 27 above).

                        Goff: “information from insects was useful to determine the minimum amount of time”
                        As Haskell pointed out, that “does not exclude a maximum being calculated also” (page 428). Goff was referring to the amount of time which elapses between death and the start of insect activity (page 332). As pointed out above, a delay of two weeks would be exceptional (Brief Page 26); the mummification theory is invalid (see Brief Page 27 above); and there was no evidence to support other possible factors, such as a body covering (pages 385-386).

                        “Determining how long a body had been deceased was not possible with forensic entomology” and “there was no way to determine the maximum date”.
                        These are discussed above.

                        4. The Defense's Surrebuttal

                        Hall: “no earlier that February 12, 2002"
                        “than” not “that”. So some prominent forensic entomologists believe that their science can give a maximum.

                        Brief Page 29:

                        “Hall taught, lectured, and published articles over the course of nine years with defense expert Haskell”
                        That’s a misleading exaggeration. They had lectured at a workshop in 1990 (so 12 years earlier), and had co-authored four published articles in the last 9 years, and were working on two more (Hall, August 1). The prosecution was apparently trying to cast doubt on his testimony on the grounds that he was good friends with Haskell, yet he disagreed with Haskell over the issue of maggot mass (page 442).

                        B. Penalty Phase

                        1. Prosecution's Case in Aggravation

                        Lewd Act Upon Jenny N.

                        “When Jenny N. was about seven years old”
                        So about 12 years earlier (page 94).

                        “Westerfield had put his fingers in her mouth and was playing with her teeth”
                        That’s a lewd act? That word has sexual connotations, and that was what the prosecution intended to imply. Yet even Paul Redden expressed disbelief in that interpretation (page 95). Westerfield was middle-aged (49), yet that’s the only incident they could find in his past that even hinted at him having a sexual interest in little girls (page 90).

                        “she bit down as hard as she could”
                        There was no supporting evidence, yet there should have been visible damage to his fingers (page 94).

                        “Westerfield stopped, adjusted his shorts”
                        She said the “sides” of his shorts. Maybe he got a wedgie when he reached down and rectified the cause of the commotion between her and her sister (page 95). Given the facts: she had just awoken, her young age at the time, the lack of supporting evidence, the conflict with his version, she didn’t report this to anyone until after Danielle’s disappearance, and the consequent large amount of time which had elapsed, there has to be doubt as to the accuracy and reliability of her memory (pages 94-96 and 674).

                        “She did not say anything to Westerfield because she was scared”
                        But she didn’t tell her mother either, she merely said he was bothering her (page 95).

                        Impact Of Danielle's Murder On Her Family And The Community

                        Puntenney also said that, while all the other children wrote about happy things that final day at school, Danielle wrote about her grandmother’s house being broken into (page 9).

                        Brief Page 30:

                        “she loved to help him [her father] when he was working on their cars by bringing him the tools”
                        Prior to the “guilty” verdict, she was portrayed as a “girly girl” - interested in dolls, in reading, writing in her journal, took piano lessons, the father-daughter dance, her nails were painted, she wore that necklace and earrings all the time - and so would not have snuck into Westerfield’s motor home leaving that evidence of her behind; but she was adventurous and more a tomboy, she surfed, climbed monkey bars, and hiked in the canyons (pages 5, 8-9, 82, 206, 212 and 214).

                        “Derek and Dylan slept in the same room, despite having their own rooms,”
                        Contrary to the trial testimony, there is evidence that they slept in the same room before Danielle went missing (page 5).

                        “The family went to therapy together”
                        As the parents were partly responsible, if only because their lifestyle gave an intruder easy access to Danielle (the side garage door unlocked and the reversed lock on the house garage door), they would have needed therapy for that (pages 14, 23 and 223).

                        Brief Page 31:

                        2. Defense's Case In Mitigation

                        “evidence of his professional accomplishments as a design engineer”
                        His underwater products saved the lives of many divers (page 676); and his medical products eased the lives of thousands of people with joint problems, particularly after surgery (pages 676-682). He helped design products that enabled optometrists and ophthalmologists to cast prescription-ready lenses in a doctor's office (pages 678-679); and designed a device which facilitated the screening of passenger luggage at airports for security purposes (pages 679 and 681).

                        “Family, friends, and neighbors testified on his behalf, expressing their support and care for him, and recalling times he had been helpful”
                        This shows that being “overly cooperative” (see Brief Page 12 above) was normal for him (pages 91 and 683-684).

                        continued ...


                        • #13
                          Re: Respondent’s Brief

                          Concluding remarks:

                          There are numerous problems with the Respondent’s Brief. It’s more than just a few typos (such as spelling and grammar), and it’s not so much factual errors (such as the length of time he was at the Strand), but rather the selection of information to make Westerfield appear guilty (such as mentioning the testimony that he sweated profusely, but not the testimony that no sweat was visible on the photo). I’m sure some instances were due to ignorance of the facts (such as the weather records from the nearby official weather stations), and/or to basing statements solely on testimony (such as the testimony that the body was badly decomposed, whereas the autopsy report makes it clear there was only moderate decomposition). But the bottom line is that this Brief is not an accurate and balanced account of the facts of the case, and truth and justice are the losers.


                          • #14
                            Re: Respondent’s Brief



                            1. ^ Ryan, Harriet, Court TV (June 11, 2002),"Detective: Westerfield appeared nervous when asked about his whereabouts". Retrieved on December 26, 2006.
                            2. ^ Roth, Alex. “Physical evidence shows Westerfield committed 'evil, evil crime,' prosecutor says," San Diego Union-Tribune, June 7, 2002. Retrieved on 23 February 2013.
                            3. ^ Stevenson, C. “Rush to Judgement”, CreateSpace, June 22, 2011, pages 29-32, 223 and 486.
                            4. ^ Stevenson, C. “Rush to Judgement”, CreateSpace, June 22, 2011, page 269.
                            5. ^ Stevenson, C. “Rush to Judgement”, CreateSpace, June 22, 2011, pages 253-254.
                            6. ^ "San Diego Union Tribune". "Clerk says defendant was 'very distant'". Retrieved November 8, 2006.
                            7. ^ Schmidt, Steve, and Joe Hughes. “Volunteer searchers find a body in Dehesa: Parents of young girl 'in a great deal of pain'," San Diego Union-Tribune, February 28, 2002. Retrieved on March 20, 2013.
                            8. ^ Magnus, Greg, and Steve Perez. “Westerfield trial moves toward physical evidence," San Diego Union-Tribune, June 17, 2002. Retrieved on March 20, 2013.
                            9. ^ Stevenson, C. “Rush to Judgement”, CreateSpace, June 22, 2011, pages 159, 233 and 466.
                            10. ^ Roth, Alex. “Uncoiled hose aroused suspicion, police testify," San Diego Union-Tribune, June 12, 2002. Retrieved on March 5, 2013.
                            11. ^ Ryan, Harriet, Court TV (June 6, 2002), "Grieving mother recalls day she found her daughter missing". Retrieved on December 18, 2006.
                            12. ^ Epler, Kimberly. “Accused killer's son takes stand," North County Times, July 24, 2002. Retrieved on May 2, 2007.
                            13. ^ Hughes, Joe, San Diego Union-Tribune (February 7, 2002), "Anxiety, worries grip missing girl's parents". Retrieved on September 24, 2006.
                            14. ^ Rose, Jeffrey J. “Parents tell of events surrounding Danielle's disappearance," San Diego Union-Tribune, March 14, 2002. Retrieved on March 9, 2013.
                            15. ^ Court TV (February 28, 2002), Missing 7-year-old girl believed found near wooded area outside San Diego . Retrieved on October 9, 2006
                            16. ^ "CourtTV". "Westerfield's son takes stand against him". Retrieved January 16, 2007.
                            17. ^ "San Diego Tribune". "'Girls' night out' under scrutiny". Retrieved January 16, 2007.
                            18. ^ Court TV (June 3, 2002),"A 'little girl lost' is found dead, allegedly killed by neighbor". Retrieved on January 16, 2007.
                            19. ^ Dillon, Jeff. “Physical evidence shows Westerfield committed 'evil, evil crime,' prosecutor says," San Diego Union-Tribune, August 6, 2002. Retrieved on February 20, 2013.
                            20. ^ McDonald, Jeff, Irene McCormack Jackson and Elizabeth Fitzsimons. “Danielle's parents say 'thank you': Brenda and Damon van Dam issue statement after confirmation of daughter's death,” San Diego Union-Tribune, March 1, 2002. Retrieved April 5, 2013.
                            21. ^ Dillon, Jeff. “Orange fibers found on Danielle's body, suspect's laundry,” San Diego Union-Tribune, June 25, 2002. Retrieved April 5, 2013.
                            22. ^ Roth, Alex. “Criminalist links hairs, carpet fibers to Danielle: Evidence found in defendant's home,” San Diego Union-Tribune, June 25, 2002. Retrieved April 5, 2013.
                            23. ^ Stevenson, C. “Rush to Judgement”, CreateSpace, June 22, 2011, pages 81, 495 and 544.
                            24. ^ "CourtTV". "When Was Danielle Van Dam Killed?". Retrieved September 19, 2006.
                            25. ^ Green, Kristen. “Insect evidence may put time of death in doubt," San Diego Union-Tribune, July 11, 2002. Retrieved on 24 June 2003.
                            26. ^ "San Diego Union Tribune". "Jury appears weary of sparring by insect experts". Retrieved September 19, 2006.
                            27. ^ Ryan, Harriet, Court TV (July 30, 2002), "Prosecution's bug expert struggles on stand". Retrieved on October 8, 2006.
                            28. ^ Roth, Alex, San Diego Union-Tribune (March 7, 2002), "Detectives' bid to visit Westerfield protested - Attorneys contend his rights violated". Retrieved on October 14, 2005.
                            29. ^ a b c Bean, Matt, Court TV (June 25, 2002), Jury sees graphic child pornography taken from Westerfield's home. Retrieved on October 8, 2006.
                            30. ^ "KFMB stations, San Diego, California". "Local 8 News Exclusive David Westerfield's Letters from Death Row Part 2". Retrieved October 6, 2006. dead link
                            31. ^ "Tucson Citizen". "Rapist's 'confessions' could reopen a case". Retrieved October 6, 2006.
                            32. ^ "CourtTV". "Van Dams settle civil suit against daughter's killer". Retrieved January 16, 2007.
                            33. ^ "San Diego Union Tribune". "Plea deal 'minutes away' when body found ". Retrieved January 17, 2007.
                            34. ^ Roth, Alex, San Diego Union-Tribune (December 12, 2002), "A chat room helped Westerfield prosecutors". Retrieved on June 23, 2003.
                            35. ^ Roth, Alex, San Diego Union-Tribune (January 3, 2003), "Child killer has proclaimed innocence in cards, visits". Retrieved on October 16, 2006.
                            36. ^ Ryan, Harriet, Court TV (August 27, 2002), Niece says Westerfield fondled her when she was 7. Retrieved on January 14, 2007.
                            37. ^ San Diego Union Tribune(January 9, 2003) "Westerfield failed polygraph test" access date September 19, 2006
                            38. ^, 2003.
                            39. ^ Epler, Kimberly. “Hair in Westerfield home similar to Danielle's," North County Times, June 24, 2002. Retrieved on April 16, 2007.
                            40. ^ Stevenson, C. Rush to Judgement, CreateSpace, June 22, 2011, pages 287-288.
                            41. ^ “Follow Me Layla,” LocateTV, Animal Witness, Season 1, Episode 9, September 24, 2008. Retrieved on November 14, 2012.
                            42. ^ Stevenson, C. “Rush to Judgement”, CreateSpace, June 22, 2011, pages 301-302.


                            • #15
                              Re: Respondent’s Brief

                              I found an email re the book I got probably a year ago..something I missed and just read.. Going to order it next week ..can't wait to read it!