Jury Gives Child Killer Death Penalty

A jury recommended Monday that David Westerfield receive the death penalty rather than life in prison for the kidnapping and murder of 7-year-old Danielle van Dam.

Westerfield, a 50-year-old engineer, shook slightly and blinked rapidly as the verdict was read He had faced either execution or life in prison without parole after being convicted of killing Danielle in February.

The six women and six men on the panel returned their verdict on the fifth day of deliberations in the final phase of the sensational trial.

The jury deliberated for nine days before convicting Westerfield -- a neighbor of Danielle who bought Girl Scout cookies from her just days before she vanished – of kidnapping, murder and possession of child pornography on Aug. 21.

Two jurors became emotional, one of them breaking down in tears, after they had read and agreed the verdict and asked to leave the courtroom to compose themselves.

Formal sentencing of Westerfield, a twice-divorced father of two, must be pronounced by Superior Court Judge William Mudd, who has the discretion to overrule a verdict calling for death. If condemned by the judge, Westerfield faces execution by lethal injection.

The jury announced its verdict after a morning of confusion in which the panel had sent a note to the judge saying it was deadlocked. But after returning from lunch, and deliberating for a further 10 minutes, they announced they had reached a unanimous decision.

During the penalty phase, which follows the conviction of a defendant facing possible execution, prosecutors asked the jury to make Westerfield pay the "ultimate price" for his crimes, while defense lawyers urged them to spare his life.

Because he was convicted of murder under "special circumstances," Westerfield otherwise would face life in prison without possibility of parole. The special circumstances against Westerfield were that Danielle's murder was carried out during a kidnapping.

Danielle was last seen on Feb. 1, when her father put her to bed in her second-story bedroom, decorated in her favorite colors, pink and purple. Her nude body was found nearly a month later along a road outside the city, too decomposed to determine the cause of death or whether she had been sexually assaulted.

Westerfield became a suspect early on after investigators learned he was at the same bar as Danielle's mother and two of her girlfriends the night the girl vanished. He also left on a trip in his motor home early the next day as police and volunteers searched the neighborhood.

He was convicted after a two-month trial in which the defense suggested that Danielle's parents' spouse-swapping and marijuana smoking had put Danielle and her two brothers in danger by opening their home to other potential suspects.

But prosecutors pointed to what they called a "smoking gun": The girl's blood was found on one of Westerfield's jackets and her hair was in his bedroom. Investigators also found Danielle's blood, hair and fingerprints inside his motor home.

During the penalty phase, defense attorneys sought to portray the defendant as a family man who has contributed to society through his patented design work on devices used in medicine and other fields.

Westerfield had no prior felony record and played an active role in the lives of his children and close friends, defense attorney Steven Feldman said. "He's a good man but for one three-day weekend of terror," he said.

As CBS Legal Analyst Andrew Cohen notes, "a death verdict was likely after last month's conviction but it clearly wasn't a slam-dunk for jurors to vote unanimously for the ultimate punishment."

Cohen continues, "the law allows the judge to disregard the jury's death recommendation and sentence Westerfield to life without the possibility of parole. But the crime was so horrible that the judge is likely to simply endorse the jury's finding and then permit the appellate courts to sort it all out."

"If the judge approves the jury's death recommendation there will be an automatic appeal that likely will keep Westerfield in legal limbo for a few years," says Cohen.

Prosecutor Jeff Dusek noted Westerfield's two ex-wives did not testify on his behalf, and he ridiculed the notion that the engineer deserved special consideration for his work.

The jury reached its decision after penalty phase testimony that Westerfield had molested his niece 12 years ago when she was 7 years old, Danielle's age.

The niece, now 19, took the witness stand and said Westerfield had put his fingers into her mouth while she slept alongside her sister and a young female cousin during a family gathering.

The girl's mother said she confronted Westerfield over the incident but never reported it to authorities because he explained that the girls had been "fussing" and that he had been trying to calm them down.

It was the only evidence introduced either at the penalty phase or during the trial suggesting that Westerfield had a history of molesting young girls before Danielle's abduction and murder.

The van Dams took the stand to say their two sons, ages 6 and 9, have suffered emotionally because of their sister's slaying. One boy has outbursts of anger and the other has reverted to bed-wetting and baby talk, they said.

The case had riveted San Diego since the abduction, with local television and radio stations broadcasting gavel-to-gavel coverage. News of Westerfield's conviction prompted applause and cheers outside the courthouse.

The slaying preceded other frightening abductions this year, including those of Elizabeth Smart in Utah, Samantha Runnion in Orange County and Cassandra Williamson in Missouri. Samantha and Cassandra were killed; Elizabeth remains missing.