I bought this book specifically because it mentions the David Westerfield-Danielle van Dam case (San Diego, 2002). Those are the only parts I’ve read so far, and this review is restricted to that. I wrote the definitive work on that case, titled “Rush to Judgement”, and proof of most of my statements below can be found in that book. The page references below are to Nancy’s book.
Errors in Nancy’s book:
Here are just some of her errors. Danielle’s body WAS found nearby, but that’s NOT in the desert (page 126). (That is significant, because for much of the weekend Westerfield was far away, in the desert, and the body recovery site is not on the route he said he took, a route which was confirmed by evidence such as cell-phone records.) The degree of decomposition was only moderate, but there was also extensive animal feeding (page 126). (Again, that’s significant, because it points to a shorter rather than a longer PMI (postmortem interval), which is consistent with the entomology evidence.) She WAS discovered missing on Saturday morning, but that was February 2 (page 198). The cookie sale referred to (page 199) was not Danielle’s only contact with Westerfield, there was also the corresponding sale the previous year and the gift wrap sale for Christmas, and probably delivery of and payment for those items. And the latest sale wasn’t merely “earlier that same year”, it was earlier that same week, probably just 2 or 3 days before she went missing. This is not just nitpicking, it has evidentiary value: hairs and fibers shed in his house, not only by Danielle but also by the other van Dams who came with, would still have been there when it was forensically examined. Her palm print was not on the nightstand in his RV, but on the cabinet above it (page 199). Danielle’s mother, Brenda, was out for the evening with friends, not coworkers (page 199). And Westerfield did hang out with them while there, albeit briefly, and witnesses testified that he did dance with her (page 199).
The kidnapping:
I also want to take a closer look at the prosecution’s kidnapping scenario, which Nancy glosses over (page 199). Danielle’s father (Damon) and brothers might have been the only other people in the house when the kidnapper entered, but not when he (assuming it was a “he”) left with her. Brenda and four friends arrived while the kidnapper was still there, and Brenda was still there when he left. And he left by the back door, a longer and more difficult route than his entry route through the side door, even though he was now hampered by having a kidnapped child with him. So the kidnapper was in the house for probably over an hour, and for much of that time there were also six adults, and two other children, and the family dog - which was free to roam around for part of that time. And the house had a burglar alarm, which was set and working. It gives both an audible and a visible warning. Westerfield was not familiar with this house, and it’s different from his. Yet he, a large man who sweats a lot, supposedly was able to find his way around the house, in the dark, while inebriated, without bumping into anything and alerting the occupants (human and animal), or leaving a trace - the search dogs couldn’t even detect his scent. So it’s not surprising that neither the police, nor the prosecutor, nor the jurors, could figure out how he did it.
Again according to the prosecution scenario, Westerfield then took Danielle, on foot, in the open, back to his house. This is a short distance, and it was at night, but it would have been risky: there is a streetlight, and there’s no place to hide. And the search dog did not track her to his house.
Later that morning, he supposedly transferred her from his SUV to his RV, again in the open, and he was seen, but Danielle wasn’t seen with him. At no time that weekend, even though he was seen by many different people, in various different places, was she seen with him. Nor did any of those people suspect he had a kidnapped child with him.
The only person who even noticed anything was the clerk at his regular dry-cleaners, when he stopped there on his way home on the Monday morning. He parked his RV in front of their door, and went inside wearing no shoes or socks (page 199). But Nancy doesn’t explain why she thought the no shoes/socks was relevant.
Plea deal:
Nancy is not only firmly convinced that Westerfield is guilty of kidnapping and murdering Danielle, she is equally certain that his lawyers (Feldman and Boyce) knew this, but defended him anyway, dragging Danielle’s distraught parents through the mud and ruining their reputations (pages 6 and 200). But the only evidence she gives to support that belief is that, according to “sources” (which she doesn’t name), Westerfield was trying to cut a plea deal: life without parole in exchange for disclosing the location of Danielle’s body (page 200). Given how strongly she condemns his lawyers - “one of the most horrifying examples of the true business of being a defense attorney” (page 6); “one of the most brutal and unjustified attacks on a victim’s parents I have ever witnessed” - stronger evidence is needed. She undermines her own argument by claiming that the deal collapsed when the body was found, as prosecutors no longer needed his information - because finding the body was not the only advantage to them. A deal would have given them a guaranteed conviction, and saved taxpayers an “immense” amount of money (page 149).
Victimization of the parents by the justice system and the defense:
Nancy is also scathing in her condemnation of the defense’s treatment of Danielle’s parents. While it may be true that they hadn’t done any “swinging” for a year (page 6), Brenda and her girlfriends had invited strangers back to her home for sex that very evening. And their sexually provocative behavior at the bar, both that evening and the previous Friday evening, had attracted attention, and one of the other patrons could have been a sexual predator who thought he could take advantage of their inebriated state. We must also not forget that it was because of their pot smoking in their garage that evening, that an external door was left unlocked - and the lock on the internal door was reversed - thus providing easy access to the perpetrator, whoever that was. And in the hours following the kidnapping, the parents lied to the police to conceal these activities.
Nancy claims that the parents were thrown out of court because the defense claimed, falsely, that they would be called as witnesses for the defense (page 126). That claim surprised me, as the parents were PRESENT in court (after the first week), and were called as witnesses for the PROSECUTION. True, Damon was subsequently banned from the court, but that was because deputies thought he was a security risk, and he was allowed back after two weeks. I don’t know if the defense played a role in the banning: the media reports I’ve seen mention only that Damon had ignored warnings from deputies and PROSECUTORS. It was some of the JURORS who didn’t want Brenda staring at them: it made them uncomfortable, and they didn’t want her to know their identities.
The parents’ “decadent lifestyle” (page 200) became public knowledge long before even the Preliminary Hearing in March, 2002. And it was the prosecution which raised the subject in court, not the defense. So they “opened the door”. This was a deliberate tactic on their part. To soften the impact of the sex and drugs, the prosecutor brought it out on direct examination and let Brenda explain it, then he ended her testimony discussing Danielle, and the things she would miss in life. This made it difficult for the defense to attack her, because it would make them look bad in the eyes of the jury.
Entomology evidence:
There WAS a forensic entomologist who told the jury that the fly larvae on the body had only hatched long after Westerfield was under tight police surveillance, so he could not be the killer who disposed of the body (page 7). But this local scientist was brought onto the case by the POLICE, and was in fact their regular expert. And his testimony was supported by three other nationally-known forensic entomologists, including the one hired by the prosecution. While it’s true that there are factors which can delay egg laying (and therefore also hatching), there was no evidence of such factors in this case.
Physical evidence:
Nancy lists the following evidence against Westerfield, which she describes as “overwhelming” (page 199):
in his house (page 199): Danielle’s hair (and clothing fibers) on his bedsheets and laundry;
in his RV (pages 126 and 199): her blood, blond hair, and palm print;
from his RV (pages 126 and 199): her blood on his jacket, and the van Dam dog’s hair on his comforter.
All this evidence is of her in his environment: there was no evidence of him in hers - either in her house or at the body recovery site. Two known crime scenes, the only certain crime scenes, and no evidence of the defendant at either. Also, she was supposedly transferred from his house to his RV in his SUV, but there was no evidence of her in the SUV. And there are innocent explanations for the evidence of her in his house and RV: she was in his house shortly before the kidnapping, and she could have played in his RV (page 199). She was known to have left her own yard by climbing on the gate. I put “clothing fibers” in brackets above, because there WEREN’T any van Dam clothing fibers found in Westerfield’s house, unless the orange fibers or the blue fibers came from their clothing - the sources were never identified. The blood in his RV consisted of just one drop (which wasn’t photographed or measured). The palm print match to Danielle was made using rehydrated skin, and was of an unusual part of the fingers (the rear of the knuckles): no evidence was produced that such matches are as reliable as the usual matches, of the fingertips. The blood on his jacket was a single small stain (which wasn’t seen by the dry-cleaners). The dog hair could indicate that the dog was with her in the RV - the family dog was big, and might have gotten away from Danielle while she was walking it, and run into the RV.
It is significant that no Danielle pajama or bedding fibers were found in Westerfield’s environment, so the evidence points to innocent daytime visits, not a nighttime kidnapping.
Similarly, the RV evidence points to a prior visit: the Danielle hairs were blond, yet her hair was darkening, so they might have been old hairs; the drop of blood initially didn’t give a DNA type for one of the markers, so it might have been old and starting to degrade; the bloodstain on his jacket was faint, so it was probably an old stain which had previously been washed; and the search dogs did not alert to either her scent or a cadaver scent, so she couldn’t have been there recently, either dead or alive.
It is also significant that, according to the prosecution scenario, Danielle was in his house for several hours after the kidnapping, and was presumably first assaulted while there, yet the only evidence of her was a few hairs, and no blood.
If she had spent a day or two in his environment, then you would expect 100 or even 200 of her hairs to have been shed there, yet only fourteen were found: eleven in his house and three in his RV. This points to a short visit. And those in his RV could have been transferred there from his house after the cookie sale. Furthermore, all but one of the hairs were only mitochondrial DNA matched to Danielle, so they could have come instead from her mother or brothers.
I have heard the claims of a relationship between Brenda and Westerfield (page 200), but wasn’t aware that Feldman had intimated this - I’d have to study the trial transcripts to check that. If he did intimate that it was Brenda’s hair and not Danielle’s in the RV, then I’d have thought he did so instead because it weakened the evidence of Danielle in the RV. Not just the smaller number, it would also show how trace evidence is spread: finding evidence of someone in one place doesn’t necessarily prove that the person was in that place.
I doubt that Westerfield has written “numerous” letters on death row, still blaming the parents (page 200). I only know of three letters which have been published, only two of which blame the parents: one of those letters goes into detail, the other just mentions the parents in passing. I also think it’s misleading to say that he claims they framed him. His standpoint is that he’s innocent, so he was brainstorming for explanations as to how the evidence - specifically the blood - could have got there, and that is one of the possibilities he thought of. The other possibility he gives is that the police framed him - but I can’t see that he claims that Danielle’s family was in on the plot (page 145).
(He suggests that Detective Ott planted Danielle’s blood. Ott’s credibility was questioned by the judge, and he and his partner, Detective Keyser, were responsible for false statements in an affidavit in a murder case in 2000. And they had violated Westerfield’s constitutional rights by repeatedly ignoring his requests for a lawyer during lengthy hours of interrogation, and again by attempting to visit him in jail without permission. It is a bit suspicious that the criminalist didn’t photograph the blood drop on the RV carpet. It is more suspicious that the dry-cleaners didn’t see the blood on the jacket, nor can it be seen on the photo of the jacket after it was seized. It’s also suspicious that the stain wasn’t examined for spatter. Especially as Ott, who was a customer of that same dry-cleaners, had the opportunity to see the receipt for the jacket before any other police officer - and apparently DID see it - and he apparently had custody of the jacket shortly after it was seized.)
Prosecutors:
Much of Nancy’s book is a diatribe against defense attorneys. Are prosecutors blameless? I’ll give two specific examples from the Westerfield trial. The lead prosecutor, Jeff Dusek, had used the exact same local forensic entomologist before to secure a conviction (page 7). In that case (Ronald Porter-Sandra Cwik, 1988/1992), the entomology was the strongest evidence of guilt, and it had to be very accurate to prove guilt. Like with Danielle, this was a body in a rural area (just a few miles east of where Danielle was found), the body was outdoors and exposed to the elements, there was hot weather, and the larvae were at the same age (in the third instar). So coming into the Westerfield trial, Dusek had to believe strongly in the accuracy and reliability of this science. And therefore he knew that Westerfield was innocent. Yet during the trial he trashed the science, arguing instead for guilt and the death penalty.
The second example is the child pornography charge (page 199). Westerfield had a computer porn collection, which was discovered within hours of him being contacted by the police. If that had included child porn, he would have been promptly arrested, but he wasn’t because the police couldn’t determine if the girls were under 18. Danielle was only 7. The FBI tried to get a federal arrest warrant for him, but this was denied because the photos weren’t lascivious. And he wasn’t charged under a child porn statute, but under a law that’s so broad that, as the prosecutor told the jury, an image of someone who is fully clothed could nevertheless be considered illegal. In his opening argument in court, he said that the video clips that they would be shown were of a young female, or at least who was dressed to LOOK young (so she wasn’t actually under 18). Taking all of this into account, the prosecutor knew that there wasn’t any genuine child porn, but argued anyway that there was - presumably because this was their evidence of motive, their only evidence of motive, and without the emotional impact, the public revulsion for child porn, they would likely not have secured a conviction on the serious charges.
More generally, the District Attorney’s office had a close working relationship with the police crime laboratory. Too close. The laboratory was just trying to find evidence to convict Westerfield. For example, unknown DNA in bloodstains on Danielle’s bed wasn’t compared against CODIS. An unknown hair under her body was similarly ignored. So were unknown fingerprints found in her house. They only checked a few items from her house for the sources of the evidentiary orange and blue fibers. They didn’t compare the blue fibers using the most powerful instrument available, so they might not even have matched (and would therefore have no evidentiary value, they would not link him to the crimes). They apparently didn’t compare the red fibers found with her fingernails with any items from her home. And so on. (Similar criticism can be leveled at the police. For example, they apparently didn’t ask Danielle’s brothers if she had ever been in Westerfield’s RV; they didn’t check if a child sneaking into that vehicle could have been seen by neighbors; when they tested TV reception in the RV, they did so at the Strand, whereas Westerfield had spent the night at the Cays; and so on.)
Nancy also rejects the belief that the state will do anything to secure a conviction: a conviction will not get that prosecutor a raise, or a promotion, or a big bonus (page 145). But Woody Clarke, the co-prosecutor at Westerfield’s trial, was appointed a judge to the San Diego Superior Court the following year, and both prosecutors were named “San Diego County Prosecutor of the Year” for 2003, by the San Diego Deputy District Attorneys Association, while Clarke was also named 2003 “Outstanding Prosecutor of the Year” by the California District Attorneys Association. And Sean Soriano was promoted from Assistant Criminalist to Criminalist in between the Preliminary Hearing and the trial. (It can also be mentioned that criminalist Jennifer Shen is now the manager of the laboratory.)
Stars:
I have reviewed some other, similar books: about crime in general but with a section on the Westerfield-van Dam case. Those books, like Nancy’s, present a distorted picture of this case, but I gave them a higher rating than I would have for that one case alone, as there is good material in the rest of the book. I daresay there is good material in the rest of Nancy’s book, but I’m not going to reward her for it because she spews out so much vitriol, and not just on this one case. I’m sure some of that vitriol is justified in other cases, but much of it isn’t. So just one star for her.
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