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DA downplays 'new' Westerfield evidence

SAN DIEGO, Nov. 22 (UPI) -- Sentencing for convicted child killer David Westerfield was postponed Friday until after the first of the year, although published reports about possible new evidence in the slaying of 7-year-old Danielle van Dam were discounted by the prosecution.

A perturbed San Diego Superior Court Judge William Mudd reluctantly granted a request for a continuance so Westerfield's lawyer could have more time to prepare motions pertaining to an appeal that is mandatory in California capital murder cases. However he rejected attempts to open the door to potential new evidence that, if accurate, could possibly spare Westerfield the death penalty.

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"I'm in a box and I have no choice," Mudd told defense attorney Steven Feldman as he rescheduled sentencing to Jan. 3, although Feldman had asked for Jan. 10. "My choice is not to grant continuance for the amount of time you want. Not only do the parties in this matter deserve closure, but it... must be brought to a timely conclusion."

The trial jury had recommended a death sentence for Westerfield after convicting him Aug. 21 of murder with the special circumstance of the slaying of the little girl that took place in the course of a kidnapping.

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The special-circumstance finding, which is required for a death penalty in the state of California, was thrown into doubt recently by a magazine article that raised the possibility that Danielle was murdered in her bedroom and then taken to the rural site where her body was eventually found.

"San Diego Magazine" said in an article that appeared in the September issue that a law enforcement source believed Danielle likely recognized Westerfield in her bedroom and that he killed her with a blow to the head to keep her quiet.

During the trial, Feldman pointed out that Danielle had been taken from her home without her father, brothers or the family dog having heard any noise.

Feldman contends that if Danielle was dead when she was spirited out of her bedroom, the special circumstance of kidnapping would not apply and Westerfield would be eligible for a life sentence.

Deputy District Attorney Jeff Dusek, however, said there was no physical evidence found at the crime scene or any confirmation from Westerfield, whose life is on the line, that the slaying occurred in the bedroom.

"It is probably just as likely that Danielle was killed in the parlor with a candlestick by Col. Mustard," Dusek scoffed in a reference to the popular board game "Clue."

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Dusek contended the magazine's source, whose identity has not been revealed, was just one officer who had an opinion on the case that was simply not backed up by the evidence.

"There is no evidence that she was killed in that room," Dusek said. "In fact, all of the evidence indicates she was killed elsewhere."

Dusek said the autopsy on Danielle's decomposed remains found no evidence of a fatal blow to the head. He also noted that even if there had been evidence found that the murder occurred in the Van Dam home, he would have filed charges with the special circumstance that it occurred during a residential burglary, which would also qualify Westerfield for death row.

The van Dams appeared somewhat shaken following the 10-minute hearing but took the delay in stride.

"You know, I thought today would be the end and we're heading into the holidays, which are going to be so hard for us this year," said Brenda van Dam. "I'm really let down by the decision. We wanted to have this cart behind us for the holidays."

When asked what she thought about allegations that her second-grade blonde-haired gap-toothed daughter had been killed in her home, she appeared annoyed.

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"All the evidence points to the fact that she was alive in that motor home and they're just blowing smoke," she accused.

(Reported by Hil Anderson in Los Angeles)

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