-51st in a Series-
Exit 19, Second Street, El Cajon ~ Danielle Van Dam Memorial Overpass
By Donald H. Harrison
EL CAJON, California – One of the most painful murder trials in San Diego County was that of David Westerfield for the February 2002 murder of 7-year-old Danielle Van Dam, who lived two doors away from his home in the Sabre Springs community of San Diego off the Interstate 15.
The Second Street bridge over the Interstate 8 is named in Danielle’s memory. Second Street via Jamacha Road and East Washington Avenue leads to Dehesa Road, where the little girl’s naked body had been dumped, about 25 miles from her home. Danielle’s partially decomposed body was discovered among weeds about a month after her kidnaping.
The prolonged search for Danielle, followed by allegations that the murdered little girl had been raped, stirred up a lot of outrage in the community, most of it against Westerfield, who at the time of this writing still was appealing his 2003 sentence of death for the murder. The case took months to litigate. It mainly turned upon forensic evidence that little Danielle had been in Westerfield’s recreational vehicle and his home coupled with evidence that on the day of Danielle’s disappearance, Westerfield had behaved very erratically—driving his RV to the beach and then to the desert. There was also testimony that Westerfield had child pornography on his computer.
The “Jewish connection” in this fiercely emotional case was the fact that Steven Feldman, a highly respected defense attorney, drew the assignment along with Robert Boyce as co-counsels for Westerfield’s defense. Some of the outrage against Westerfield spilled over against Feldman, who tried unsuccessfully during the trial to persuade the jury that the case brought by District Attorney Paul Pfingst and other prosecutors against Westerfield was circumstantial and not conclusive.
For example, Danielle was not the only member of the Van Dam family whose DNA was found in the recreational vehicle; so too was that of other members of her family, so it was possible, Feldman argued, that the trace amounts of Danielle’s blood and hair might have been left on Westerfield’s clothing and in his home and RV on other innocuous occasions.
Furthermore, Feldman suggested, someone who knew of the “swinger” life styles of Danielle’s parents – Brenda and Damon Van Dam – might have snuck into their house and kidnapped Danielle during the party they had held the evening of Danielle’s disappearance. Evidence indicated that the parents had not looked in on their daughter’s bedroom until the following morning.
When emotions run high, anti-Semitism can come to the surface. Feldman said he suffered anti-Semitic slurs for doing his job, which was to try to provide a defendant in a criminal case with the best possible defense.
A staunch opponent of the death penalty under any circumstances, Feldman argued prior to sentencing that the San Diego and national news media had turned the trial into “entertainment” that had led to a “lynch mob” mentality. Nevertheless, Judge William Mudd concurred in the jury’s recommendation that Westerfield be executed.
When Feldman retired as a defense attorney in 2013, he told the local CBS television affiliate that during the Westerfield trial he received letters, including one that said “if a bus should kill you, I would say thank you god.” At one point the San Diego Union-Tribune even referred to him as the most hated man in San Diego next to David Westerfield. “As I said at the time, ‘what about Osama bin Laden?’”
In the CBS News 8 interview, Feldman said he didn’t want to be remembered solely as Westerfield’s defense lawyer, but rather as “someone who can be remembered as giving his clients the best possible defense, as being an ethical and honest person, as someone who’s made a difference to the criminal defense community and dead-set against the death penalty.”
So who is Steven Feldman really? What makes him tick?
He consented to an interview with San Diego Jewish World in September 2015 in which he told of his upbringing, his motivation to become a defense lawyer, some of his more famous cases, and his thoughts about the Westerfield case.
Born in Culver City in 1947 the son of a World War II veteran and grandson of a World War I veteran, his family moved during his boyhood to the San Fernando Valley, where he had his bar mitzvah at Temple Beth Hillel of Studio City. Afterwards, however, he did not become involved with Judaism; “it didn’t sink in. I was not raised religious, neither of my parents were religious.” A big Bruin fan, he went to UCLA for the first two years of college, then, following a girl friend, transferred to UC Berkeley for the last two years. He and the girlfriend soon broke up, but Berkeley during the late 1960s was for Feldman a transformative experience.
“I arrived at Berkeley in September 1967, the beginning of the Vietnam War,” Feldman related. People were getting drafted and it was pretty intense. My first week at school, there were demonstrations. My girlfriend got sick and at the hospital I started seeing students coming in with head wounds. It was during ‘Stop the Draft Week’ and the students got turned on. That a little bit opened my eyes.” The following year, 1968, Feldman met his future wife Linda, who would become a teacher.
One day Feldman purchased a gas mask for protection during an anti-war demonstration. It didn’t work. Subsequently, he was caught up in a mass arrest of students during a protest at “People’s Park.” Prior to the demonstration, his speech professor told students in his class that they should not go to the demonstration and “if we did, we would flunk the class. I didn’t think that was reasonable, so I went to the demonstration, and that was the day (May 15, 1969) James Rector got killed. He was the guy who was shot and killed when he was a spectator upon the roof of a building in the area of the demonstration. That opened my eyes.”
Rather than being defended by an overworked, underpaid public defender, Feldman retained Penny Cooper, an attorney who though just starting out was considered to be a brilliant defense lawyer. She got the case against Feldman dismissed. Admiringly, Feldman began to think that perhaps he would become an attorney too. He was accepted at Loyola Law School in Los Angeles, where one of his professors was Gerald Uelman, who later would serve as one of O.J. Simpson’s defense attorneys in that celebrated murder case. Feldman was among Loyola students who traveled to Watts periodically to provide free legal services.
While Feldman was nearing completion of law school, Uelman brought in a representative of the Los Angeles district attorney’s staff to interview students for potential jobs. “Much to my shock he offered me a position, but I couldn’t do it; I just couldn’t do it,” Feldman said. He said he knew he wanted to be a defense attorney, not a prosecutor. “Professionally it might have helped me to learn from the prosecutor’s perspective, but in terms of what’s right, it wasn’t the right thing — that is just inside of me.”
Instead, he took a job with the Riverside Public Defender’s Office after being interviewed by his future boss, Michael F. Flynn, who called him after the interview to announce “You’re in like Flynn.” It was an office with a small staff, and “they started me trying drunk driving cases. Two weeks afterwards, I got my first trial. How I picked my first jury I don’t know. It was totally frightening.” And yet it was “fun, challenging, intense, focused, and mattered so much.”
Feldman said he is adamantly opposed to the death penalty, contending it is morally wrong and economically foolish for the state to kill. “Too many innocent individuals have been sentenced to death, and in some instances executed, based upon false or insufficient evidence,” he said.
“The reality is that the state’s behavior is more premeditated and deliberate than any case of murder where people are getting the death penalty,” he said. “Our government, its elected officials, are premeditating deaths. Murder is a premeditated, deliberate and illegal crime, and they think about it, and then the go ahead and do it. To me that is murder.”
Besides believing that life imprisonment without possibility of parole is punishment enough, Feldman argues that such a penalty “is tremendously cost-effective. The amount of money the state spends to try a capital case is astronomical. There are two prosecutors in the case, each being paid somewhere in the neighborhood of $150,000 per year. There is a judge sitting every single day at his salary. There are bailiffs in the plural because there is extra security. There are court reporters who charge by the page. There is all the security that moves the defendant to and from the court. In 75 to 80 percent of the cases, the defendants are willing to plead guilty in exchange for life without parole.”
Another reason for abolishing the death penalty in his view is that “every single time something happens with the case, it is in the news, which means that the surviving victims are again publicly confronted with their loss which is extraordinarily painful to them. Then there are people such as myself in the appellate sphere who will do everything ethical to make impossible the imposition of death. These cases average 10 years and in California the average is more than 20 years. So as a practical matter it saves the family having to be reminded again and again that their loved one was killed–on the front page.
“Also it saves the excruciating costs of the appeal,” Feldman said, pointing out that death penalty cases are automatically appealed to the State Supreme Court, which has to hear every one of them. This means they have to pay to get them prepared, they have to get their clerks working on them, and this explains too, why it is blowing up the civil justice system.” Because capital cases take priority, civil cases “languish as resources for the justice system have consistently declined and court simply do not have time to hear civil matters.”
Feldman spent 5 1/2 years as a public defender in Riverside, during which time his first murder case involved a woman on an Indian reservation who had killed her boyfriend. “They had been out dancing,” Feldman recalled. ‘They had too much to drink. They went home. She was cutting up a steak. He threw a right cross at her. She said she saw stars. She said she instinctively went like that (Feldman pantomimed thrusting a knife). He looked at her, said ‘Goodbye, Sugar’ and went down. ”
When the deceased hit his girlfriend he broke her nose. Feldman put on the stand Dr. Rene Modgelin, a forensic pathologist who had performed autopsies for the Riverside and San Bernardino Counties for many years. He asked how much force it would take to break a nose. The pathologist using a hammer provided by Feldman, tapped a skull with a hammer. “Like that?” he was asked. Harder, said the pathologist. “Like that?” Feldman after the pathologist struck it with more force. Harder still. The pathologist hit the skull harder, causing it to shatter with pieces flying toward the jury. Feldman told the jury that thrusting the knife was a reflex action in response to being hit so hard. “She didn’t have control over her actions,” he said. The jury agreed, acquitting her.
In 1979, Feldman moved to San Diego County to work with Defenders, Inc. Not long afterwards, he was able to win an acquittal in a capital murder case in which members of the Imperial County Board of Supervisors had been so certain of defendant Robert Corenevsky’s guilt in the murder of jeweler Tom Wood that they refused to authorize funds to pay for an attorney, forensic pathologist, licensed investigator, and other necessary defense experts. Ultimately the California Supreme Court ordered that Corenevsky’s defense be funded. The case subsequently was moved to Orange County, where a jury found Corenevsky not guilty.
“When the jury acquitted him, they hugged him… and we literally went out to dinner the next night in Orange County. At that party, the jurors presented me with photographs of them, complimenting my work on the case.”
His next big case was that of carpet cleaner David Allen Lucas, accused of throat slashing serial murders. Lucas was found guilty in the 1979 deaths of Suzanne Jacobs, 31, and her son Colin, 3; murdered in 1979, and USD student Anne Catherine Swanke, 22, killed in 1984. Likewise, he was found guilty for the attempted murder of Jody Santiago-Robertson, 34, of Seattle, who was choked and had her throat slashed in 1984. He was found not guilty in the murders of Gayle Roberta Garcia, 29, a realtor who was found with a slashed throat in 1981, and in the 1984 deaths of Rhonda Strang, 24, and Amber Fisher, 3. After a mistrial in the Strang-Fisher case, another jury returned a death penalty verdict in August 1989 nearly five years after Lucas’s arrest in December 1984.
For the defense, Feldman handled three cases and Alex Landon handled the other three. Both attorneys had co-counsels, meaning four attorneys in all for the defense. The prosecution, said Feldman, “brought in every DNA expert in the United States. I spent nine months on my feet questioning people about electrophoresis–a system of identification of blood types before DNA. ”
In 2014, the California Supreme Court upheld Lucas’s conviction, 25 years after his conviction. “Now the case is headed for federal court and he hasn’t exhausted his administrative remedies in state court. So in a circumstance when a jury is convinced that a guy has death coming, look at the delay in imposition.”
There still would have been an appeal process if Lucas had been sentenced to life imprisonment without parole, but it would have been handled by an appellate court and not by the Supreme Court, “so it distributes the volume,” Feldman said.
In another celebrated case in which alleged prosecutorial misconduct resulted in convictions being set aside for the accused killers of San Diego Police Officer Jerry Hartless, Feldman grilled Deputy District Attorney Keith Burt for several days over the treatment that life prisoner Darren Palmer received in exchange for testimony against San Diego street gang members Stacy Butler, Daryl Bradshaw, Kevin Standard and Clifton Cunningham.
Palmer was brought to the district attorney’s office where, on several occasions, he was allowed to have sex with his girlfriends who were transported there by representatives of the DA’s office. In addition, Palmer was permitted to make collect calls to the district attorney from his prison cell and then be connected via the D.A.’s office to his girlfriends with whom he spoke for hours, running up some $5,000 in phone bills, according to Feldman. Burt testified that the treatment accorded to Palmer was not out of the ordinary, but he subsequently was disciplined with a demotion. Eventually, Burt was permitted to retire with full benefits, which Feldman called a travesty.
So Feldman’s reputation as a defense attorney was well established when he and attorney Bob Boyce, with whom he co-owned a building, were contacted by David Westerfield and asked to represent him in the Danielle Van Dam case. Westerfield had not yet been arrested, but knew he was under suspicion.
The first meeting was at a coffee shop in Mission Valley, and Feldman recalled that police were all around, keeping Westerfield under surveillance. Wherever Westerfield went, so too did the police. Feldman offered to have Westerfield privately surrender, but instead they arrested him outside Feldman’s office.
Feldman said he made it a practice not to discuss the case with the news media, while police and the district attorney’s office did just the reverse, leaking information throughout the trial.
Knowing that the district attorney had set up a special crime laboratory just to process evidence from this case — perhaps in reaction to the O.J. Simpson murder case in Los Angeles in which evidence had been mishandled — Feldman and Boyce decided to seek an immediate trial, which, although unusual, is the constitutional right of any defendant. Most defendants in capital cases prefer to waive that right in order to have more time to prepare a defense. But the other side of that coin is that it gives the prosecution more time as well, and Feldman thought the prosecution’s case at that point in time was weak and circumstantial. “I wanted to insure Westerfield was provided with all of his constitutional rights without unnecessary delay,” Feldman said.
In opting for an immediate trial, Feldman gave up the opportunity to have a change of venue. Later when breathless news coverage of the trial created a tense atmosphere not only for Westerfield but for his defense team as well, Feldman wondered whether holding the trial elsewhere would have been a better strategy. But the dye was cast.
Early polling indicated that the public was divided on who might be responsible for little Danielle’s murder. Some people blamed the Van Dams because of their swinger life style and their apparent lack of concern for their daughter’s welfare. Some even went so far as to suspect the Van Dams themselves. But as the trial progressed, opinion shifted, and in the public mind Westerfield and his defense team became the villains. Feldman, whose courtroom style can be abrasive, became a lightning rod for criticism.
A newspaper cartoon depicted Feldman in a manner reminiscent of the anti-Semitic cartoons of Jews one finds in Nazi propaganda. Feldman was depicted with ears like wings and a giant nose–almost fiendish looking.
Television commentators resentful that Feldman wouldn’t talk to them during the trial, invited other “experts” to be their talking heads, heaping scorn on Feldman and his effort to cast doubt on the prosecution’s case.
At one point after the verdict, District Attorney Paul Pfingst said that in pre-trial negotiations, Feldman had offered to plead Westerfield guilty if the death penalty were taken off the table.
Without conceding that was what occurred, Feldman said that plea bargaining sessions between the prosecution and the defense are supposed to be completely off the record, and that Pfingst breached that ethical practice with such comments.
“All I want to do is to save someone’s life, so what may be discussed in those circumstances needs to stay confidential,” Feldman said. If what Pfingst alleged were true, he said, “one might legitimately ask why did the community have to go through nine months of that ‘bloodshed’? Why did the Van Dams have to be put through that? Why did the county taxpayers have to eat the costs of this?”
He noted that Westerfield has been on death row for 12 years, and that his opening brief on appeal has just been filed. “It will be easily 5 to 10 years before his case is finally resolved. had a plea bargain been offered and accepted, none of that would be occurring today.”
When the death penalty verdict came down, there was great cheering for the prosecutorial team and the district attorney (who nevertheless was defeated for reelection by Bonnie Dumanis) and lots of anger expressed towards Westerfield and his defense team.
A letter to Westerfield written at that time conveys the mood. “They and their children did not deserve the fate you dealt them and as for that pig lawyer of yours, well when they stick you with the lethal poison I hope to hell they do it to that pig Feldman. No one deserves a defense, least of all you.”
Another letter, to Feldman, said: “I wish you no ill but if a truck should hit you in the ass causing your demise I would consider it God’s will.”
At first, Feldman’s practice was hurt by the public vilification that he drew, but eventually, he said, he started receiving referrals again and was rebuilding the practice, when he started having tingling in his arm –“like when you hit your crazy bone.” Shortly afterwards, he ran up the stairs of his house to get a telephone call and “I was out of gas. I had indigestion that wouldn’t go away. I called Kaiser and said ‘these are my symptoms’ and they said ‘come down immediately! Don’t drive!’ So I went down. They did tests. They told me to come back and I got on a stress exerciser and they tackled me off it.”
Wheeled into surgery, Feldman had an emergency quadruple bypass.
In 2013, Feldman sold his portion of the building in which he had practiced for the previous 23 years, closed his law practice and retired. Since then, he and Linda have traveled to Europe and other parts of the globe, and have been actively involved in raising their granddaughter.
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Harrison is editor of San Diego Jewish World. He may be contacted at donald.harrison@sdjewishworld.com