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Westerfield Appeal - the Verdict

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  • Westerfield Appeal - the Verdict

    I have started a new thread, specifically to discuss the verdict.

    The Judges’ Verdict - contents and numbering

    I couldn’t see that the points in the judges’ opinion corresponded to those in the Appellant’s Opening Brief - I thought they hadn’t addressed all the points. And comparison was made more difficult by the differing descriptions and differing numbering systems - and the lack of a Table of Contents for their opinion, and what seems to be mistakes in the Opening Brief (which I haven’t investigated).

    So I have now created both a Table of Contents and a numbering conversion table to more easily match the two reports together. I am giving the results below. If anybody spots any errors, then please tell me. And if anybody knows how to improve the layout - such as separating the page numbers from the descriptions - then please enlighten me.


    Opinion of the Court by Cantil-Sakauye, C. J. 1

    I. FACTS 2
    A. Guilt Phase 2
    1. Overview 2
    2. The Prosecution’s Trial Evidence 4
    a. The events leading to Danielle’s disappearance 4
    b. The night of Danielle’s disappearance 4
    c. The investigation of Danielle’s disappearance 7
    d. The discovery of Danielle’s body and other forensic evidence 13
    3. Defense Evidence 17
    4. Prosecution’s Rebuttal 19
    5. Defense Surrebuttal 20
    B. Penalty Phase 20
    1. Prosecution’s Case in Aggravation 20
    a. Uncharged Lewd Conduct 20
    b. Victim Impact Evidence 21
    2. Mitigating Evidence 22
    a. Defendant’s Engineering Contributions 23
    b. Defendant’s Friends and Family 23

    A. Guilt Phase Claims 24
    1. Denial of Defendant’s Motion to Suppress Evidence Obtained Pursuant to Five Search Warrants 24
    a. The affidavits supporting the warrants 26
    1. The first warrant 26
    2. The second warrant 30
    3. The third warrant 31
    4. The fourth warrant 31
    5. The fifth warrant 32

    b. Analysis 32
    2. Denial of Defendant’s Challenges for Cause 38
    a. Background 38
    b. Discussion 42
    c. Prejudice 48
    3. Denial of Defendant’s Motion for Additional Peremptory Challenges 53
    a. Background 53
    b. Discussion 54
    4. The Trial Court’s Alleged Failure to Sequester the Jury 58
    a. Background 59
    b. Discussion 69
    5. Joinder of the Child Pornography Charge with the Murder and Kidnapping Charges; Denial of Defendant’s Motion to Sever 72
    a. Background 72
    b. Discussion of joinder 76
    c. Discussion of discretionary severance 79
    6. The Trial Court’s Admission of Additional Pornography Evidence 83
    a. Background 84
    b. Discussion 89
    7. The Cross-Examination of Susan L. 92
    8. Restriction on Defendant’s Cross-Examination of Officer Redden 98
    a. Background 98
    b. Discussion 101
    9. Exclusion of the February 15 Anonymous Telephone Call to Brenda Van Dam 103
    10. The Adequacy of CALJIC No. 2.16 in Considering Dog-Scent Evidence 106
    a. Lack of Cautionary Admonishment 107
    b. Lessening of the Burden of Proof 112
    11. The Trial Court’s Refusal to Modify CALJIC No. 2.51 114
    12. Sufficiency of the Evidence of Forcible Asportation Underlying the Kidnapping Conviction 116
    13. The Trial Court’s Failure to Instruct on Second Degree Murder and Involuntary Manslaughter as Lesser Included Offenses of First Degree Felony Murder 124
    14. The Trial Court’s Refusal to Instruct the Jury on First Degree Premeditated Murder 126

    B. Penalty Phase Issues 127
    1. Admission of the J.N. Incident as Factor (b) Evidence 127
    2. The Labeling of the J.N. Incident as a Lewd Act with a Child 132
    3. Failure of CALJIC No. 8.87 to Submit the Question of Force or Violence to the Jury 136
    4. Admission and Use of the Child Pornography Evidence at the Penalty Phase 137
    5. Penalty Phase Prejudice from the Cross-Examination of Susan L. 140
    6. Asserted Cumulative Error 141
    7. Victim Impact Evidence 142
    8. Failure to Sequester the Jury as Constituting Penalty Phase Error 143
    a. Penalty Phase Background 144
    b. Discussion 146
    9. Denial of Defendant’s Challenge for Cause to Prospective Juror No. 19 As Effecting the Penalty Judgment 147
    10. The Trial Court’s Failure to Grant Additional Peremptory Challenges As Effecting the Penalty Judgment 148
    11. Challenges to the Constitutionality of California’s Death Penalty Law 149


    __________________________________________________ _____


    Guilt Phase:

    Appellant Judges

    I 1
    II 2
    III 3
    IV 4
    V 5
    VI 6
    VII 7
    VIII 8
    IX 9
    X 10
    XI 10
    XII 11
    XIII 12
    XIV 13
    XV 14

    Penalty Phase:

    Appellant Judges

    XVI 1
    XVII 2
    XVIII 3
    XIX 4
    XX 5
    XXI 6
    XXI 7
    XXII 8
    XXIII 9
    XXIV 10
    XXV 11
    XXVI 11
    XXVII 11
    XXVIII 11

  • #2
    The February 15 phone call: the Judges’ Opinion

    I’m now going to comment on the judges’ Opinion on this issue. But their Opinion is basically just a shortened version of the Respondent’s Brief, which I have responded to in detail (on the “Appeal stuff” thread). So, to minimize duplication, my comments here will be brief.

    Page 103:

    “In defendant’s view, the telephone call supported his alibi defense because it was consistent with the testimony of his entomological expert Faulkner, who opined that Danielle’s body was first available for insect activity on February 16.”
    This is not just the defendant’s view: it’s obvious that it does support the entomological evidence: Danielle was alive until (well) after February 4. And Faulkner was not just “his” expert, he was law enforcement’s regular expert, making it surprising that everyone in law enforcement, from the police to now the Supreme Court justices, so quickly and firmly dismiss his expert opinion.

    “Defendant offered the telephone call as a declaration against the caller’s interest pursuant to Evidence Code section 1230 and also argued its admissibility on federal due process grounds.
    Evidence Code section 1230 provides that the out-of-court declaration of an unavailable witness may be admitted for its truth if the statement, when made, was so far against the declarant’s interests, penal or otherwise, that a reasonable person would not have made the statement unless he or she believed it to be true.”

    The caller was unavailable as a witness through no fault of the defendant, but due to the negligence of the police, who didn’t do all they could to trace the call (in fact did practically nothing), which deprived him of the opportunity to conclusively prove his innocence, and now the legal system is using their own failure against him. He will be executed because of police negligence! This is supposed to be a justice system. Where’s the justice in that? And no action has been taken against the police for their failure. Which can only encourage them to not bother to do their job. If the call was genuine then, even if the caller wasn’t a participant in the abuse he reported, he might have been guilty of other crimes, and he definitely didn’t do all he could to save Danielle, as a result of which she was killed. We can therefore expect the legal system to deal harshly with him, and so would the community. And if it wasn’t genuine, then the caller would still have been liable for legal sanction, and the community anger against Westerfield would also have been directed against him.

    Pages 103/104:

    “ ‘The proponent of such evidence must show [...] “that the declaration was sufficiently reliable to warrant admission despite its hearsay character.” ’ ” [...] “The focus of the declaration against interest exception to the hearsay rule is the basic trustworthiness of the declaration.”

    The scientific evidence (the entomology) proves it is reliable and trustworthy. Also, the caller’s claim was most unexpected, as most such kidnap victims are killed within just a few hours. And if Westerfield was the perpetrator, as was widely believed, she must have been killed long before, as his last opportunity was on the 4th of that month. So it is highly unlikely that a crank would have made such a claim.

    Page 104:

    “the court may take into account not just the words but the circumstances under which they were uttered, the possible motivation of the declarant, and the declarant’s relationship to the defendant.”
    These cannot be known due to the police negligence.

    “It [the trial court] observed that the identity of the caller and the place from which the call was made were unknown.”
    Again due to police negligence. And was he asked for his location? He might have given it had he been asked. If the police had been at the van Dam house, they could have ensured that the right questions were asked. But they believed the perpetrator was Westerfield. They mounted an enormous search for Danielle, including almost two weeks later on the day her body was found, but they didn’t have anyone waiting at that phone. They were convinced it was Westerfield. And maybe their ego didn’t permit them to think they might be wrong.

    “The court also noted the publicity that this case had received and the possibility of a “crank” call being made.”
    If there had been several such calls, then there was the likelihood that they included a crank call, but there was only one.

    Continued ...


    • #3
      The February 15 phone call: the Judges’ Opinion (concluded)

      Page 105:

      “Defendant argues, however, that this case falls outside of this rule because there was only one anonymous call conveyed”
      Why was there only one? Probably because the media coverage had convinced the community that Westerfield was guilty. Was the caller asked for his name? He might have given it had he been asked.

      “and it occurred under circumstances in which the caller would likely have anticipated that the Van Dams’ telephone would be monitored. Indeed, the February 15 call might have been traced but for the fact that the warrant for a “tap and trace” on the Van Dam telephone had been inadvertently allowed to lapse.”

      So it was being monitored. The judges are confirming what was obvious. No wonder there was only one anonymous call. And surely the police could still have traced the call, had they tried, it would just have taken longer.

      “It is purely speculative that the person who made the single February 15 telephone call to the Van Dams believed his call would be traced.”
      It is purely speculative that the person believed his call would not be traced.

      “And even if he thought the communication would be traced, there is no basis to conclude he believed that his identity would thereby be discovered, subjecting him to criminal liability or social opprobrium, within the meaning of Evidence Code section 1230.”

      What is the basis to conclude he believed his identity would not be discovered? He might have just been hoping it wouldn’t be. And there was always the danger that he might subsequently tell someone he had made the call, and that person would report the conversation, or that conversation was overheard and that person would report it.

      “As the trial court noted, nothing indicated the place from which the telephone call was made.”
      Due to police negligence.

      “The communication could have easily been made from a number unassociated with the caller precisely in order to maintain his anonymity.”
      Even if so, just because the number wasn’t associated with him, that doesn’t mean he couldn’t have been identified. He could have used a friend’s phone, or left his fingerprints there, been seen, been captured by a security camera, or left something which could be linked to him. Such as Butch Hinton in the Shannon Melendi case (Georgia, 1994).

      “Moreover, the caller gave no details regarding the basis for his claimed knowledge that could be tested”
      Was he asked? Again, this was due to police negligence. And their belief it was Westerfield.

      “and given the extensive publicity the case had been receiving, the possibility that the communication was a “crank” call was real.”

      But that’s not the only possibility, we can’t just assume it was a crank call, just because that fits our preconceived ideas - and suits our purpose.

      “Under these circumstances, the trial court’s finding of untrustworthiness was eminently reasonable.”
      Not when you consider the arguments I have raised above. Let the jury decide if it’s trustworthy.

      “The situation present here is not, as defendant argues, comparable to the exclusion of evidence that otherwise “bore persuasive assurances of trustworthiness” found by the high court to have violated due process in
      Chambers v. Mississippi (1972) 410 U.S. 284, 302.”
      So scientific evidence is less persuasive than what someone said they had overheard?

      Page 106:

      “Application of “the ordinary rules of evidence do not impermissibly infringe on the accused’s right to present a defense.””
      Because the police were negligent, thereby potentially harming his ability to defend himself (they deprived him of what might have been conclusive proof of his innocence), fairness requires - no demands - that the court do something to redress the resultant imbalance. So it should interpret the rules in the defendant’s favor. If the law doesn’t provide for that, then there’s something wrong with the law. Otherwise they are just adding insult to injury. I hope the police failure to actively investigate that phone call wasn’t due to them having already decided Westerfield was guilty. They should have had a guilty conscience over their negligence.


      • #4
        Re: Westerfield Appeal - the Verdict

        So after all these years- a final designation. As always, I must carefully mull your commentary here. Often you cite 'police negligence'- but you offer conjecture. The court is so far removed from those days, times, and the social forces at work then. For me, the court confirmed my belief and conclusion- but there are no winners here. I am not 'glad' it went this way. I am validated, but not glad.


        • #5
          Re: Westerfield Appeal - the Verdict

          This isn’t final - not with the present legal system. And my accusations of police negligence aren’t conjecture but fact - they neglected to renew the “trap and trace”. I think the large amount of time which has elapsed is part of the problem with the judges’ verdict: they don’t fully appreciate the community anger at that time and therefore the necessity of a change of venue and sequestering the jury. Furthermore, there is much else that’s wrong with that verdict. I haven’t said much about it yet, but intend faulting it further in the weeks and months to come. So watch this space.

          I know you’re not a Christian, but I will nevertheless point out that today is the day Christians commemorate another wrongful verdict and wrongful execution - though you may disagree over that as well.


          • #6
            Re: Westerfield Appeal - the Verdict

            Ah, no, I do not disagree. I am an evolving Jew. I am two days into Passover or Pesach as we call it. It is the celebration of our release from slavery in Egypt. We told the story with our generations and made many modern modifications that would have made my passed on relatives freak out.
            Further, I just used historical materials from the "Salem Witch" episode in US History to illustrate the power of false speaking or gossip to my students.
            Disagreement, honest, respectful, well articulated, and well intentioned is how we sculpt our society into a diverse but harmonious existence. The cure for a sick democracy is more democracy--I am paraphrasing Jane Addams.
            Peace to you and I will watch this space.
            Whatever you do or do not celebrate, I honor your tradition and welcome you to witness mine.


            • #7
              Time of Death / Post-Mortem Interval (PMI)

              The entomological evidence had been described (by Court TV) as the strongest evidence for Westerfield’s innocence and acquittal (though I would put the total lack of evidence of him at either of the two crime scenes right up there with it), so I am now going to examine the Judges’ Opinion on this issue (including the wider PMI issue). However, because this is a big topic, and is taking me a long time - made much worse by also having to deal with real life activities - I’m going to post the first part of my response now, and will continue working on the rest of my response, and will probably post that in bits and pieces over the coming weeks.

              The book “Rush to Judgement” devotes an entire chapter, a very long chapter, to this topic. And I’ve already provided some information on it, in my posts #921 and #931 on 17 January and 6 February respectively (on the "Appeal stuff" thread). The latter is particularly relevant, as it addresses a couple of the points in this very Judges’ Opinion.

              “Defendant principally relied on an alibi defense based on entomological evidence from Danielle’s body that suggested her death occurred sometime subsequent to February 5”
              The entomological evidence was stronger than that. It almost proved - I would say it proved beyond a reasonable doubt - that she died not only after that date, but many days after.

              “Defendant relied heavily on an alibi defense based on entomological evidence suggesting that Danielle’s body could not have been placed at the Dehesa Road site until a date after defendant was either in actual contact with police or under constant police surveillance”

              That’s a better statement. The entomology may not be able to completely rule out an earlier date of death (the body might have been temporarily stored in a refrigerator), but it even more strongly rules out an earlier date of placement. And therefore it even more strongly excludes Westerfield as the perpetrator.

              “Specifically, defendant was almost constantly in police presence beginning around 9:00 a.m.”

              More precisely, the police (Sergeant Wray) had arrived at his house at about 8:30 or 8:35.

              “David Faulkner, a forensic entomologist called by the defense”
              This shows how someone can unintentionally mislead by not telling the whole truth. He was called by the defense, yes. But saying that might cause some people to doubt his testimony. But he was brought onto the case by the police. And usually worked for law enforcement. He was the only scientific witness the jury trusted. So, far from doubting his testimony, we should doubt law enforcement, the police and prosecution, for continuing to imprison Westerfield and then prosecute him, when there was strong and reliable scientific evidence of his innocence.

              “attended Danielle’s autopsy where he collected insects from her remains and later went to the Dehesa Road site to assess insect activity”

              Later that same day. And he was allowed to evaluate other materials later on. He testified that this was the best - most extensive and complete - opportunity he had ever had, to work a crime scene and assemble material to do the forensic evaluation.

              “In Faulkner’s expert opinion, based upon the age of the insect material he collected, as well as the known temperature and weather conditions at the time, the insect activity on Danielle’s body would have occurred 10 to 12 days prior to the recovery of her remains on February 27, 2002"

              Actually prior to midday on the 28th - probably because that was the middle of the autopsy.

              “That is, the body was first available for exposure to insect activity between February 16 and 18, 2002."
              Yes, that’s correct, and confirms my previous statement: 10 or 12 days prior to the 27th would be February15 to 17.

              “To rebut the defense entomological evidence, the prosecution called forensic anthropologist William Rodriguez”
              Red flag. “Anthropology is the scientific study of humans and human behavior and societies in the past and present [...] Biological or physical anthropology studies the biological development of humans.” (Wikipedia). So nothing to do with entomology. And the Wikipedia article on Forensic anthropology doesn’t mention determining the PMI (neither does the article on Anthropology), it’s mainly about identifying a body, also cause of death. This agrees with Rodriguez’s description. The closest he came to PMI is that, right at the end of his description, he mentioned taphonomy “the process of the breaking down of an organism”, in which context he mentioned “looking at skeletal remains” (Wikipedia goes one step further: “the study of how organisms decay and become fossilized”). Danielle’s body had not reached that stage, or anywhere near.

              “Rodriguez specialized in assessing human skeletons in difficult cases, such as where the body is decomposed, in an effort to identify the deceased as well as to determine the manner and cause of death”
              Big red flag - no mention of time of death. Yet, right at the end of his testimony, almost at the end of his redirect examination, he stated that pathologists from around the country often call him out to help determine the time of death. Strange. This was the reason he was called to testify, yet he had almost finished testifying before it was mentioned that he actually had more than just a general knowledge of the issue. So why or when is he called in: “many times in my specialty area when we had very decomposed or skeletalized remains I specifically curtail a lot of my work to that”, “to look at remains that are basically very decomposed, skeletalized, burnt or fragmented”. So only in the most extreme cases. And again, Danielle’s body hadn’t reached that stage, or anywhere near. Making his expertise and conclusion moot.


              • #8
                Re: Westerfield Appeal - the Verdict

                What has Rodriguez done since?


                • #9
                  Dr Rodriguez

                  sheeee: I was surprised by your question, as I haven’t tried to follow any of the people involved (though I did discover, by accident probably a couple of years ago, that the polygraph operator had a potentially improper financial relationship with a polygraph maker, and this extended back to at least 2002). But I have now done a search on Rodriguez and found this criticism of him: “The World Famous Forensic Scientist who disinterred Hae Min Lee's body didn't take any notes, or create any documentation for police detectives.”:

                  I thought maybe that’s what you were referring to, maybe you wanted to draw my attention to this. He was similarly criticized in the Casey Anthony trial: “Dr. Rodriguez began testifying for the defense last Saturday, but his testimony was interrupted after prosecutors objected that he had not submitted a detailed report outlining his testimony in accordance with the judge’s earlier ruling.”:

                  Rodriguez did produce a report in the Westerfield case, but apparently it was only one page in length, though it was accompanied by his notes, which were presumably longer.

                  And there was another criticism of him in the Casey Anthony case: “The official told Mr. Ashton that Rodriguez had failed to obtain authorization to testify at the trial as a defense witness and would be fired if he did so.” (same source).

                  However, he seems to be otherwise respected, so these examples, and his shocking performance on the Westerfield case, seem to be aberrations.

                  As mummification was the basis of the prosecution’s attack on the entomology evidence in the Westerfield case - it was surely the reason they called Rodriguez to testify - I would have expected even my brief search to have found a lot of evidence of his expertise in this area. It didn’t.

                  In the Hae Min Lee case, mummification was barely mentioned during his testimony - see page 12 of:

                  But my search did find other valuable information.

                  I’ll give just one example for now. This was stated in connection with an unidentified body found in Baltimore in 2002: “there were no fingerprints to send to the FBI because mummified bodies yield no prints”:

                  “mummified bodies yield no prints”. That surprised me. But it casts serious doubt on Jeffrey Graham’s claim to have matched Danielle’s prints to a latent print in Westerfield’s RV, evidence which played an important role in his conviction.


                  • #10
                    Dr Rodriguez

                    My search for information on Rodriguez found other facts related to mummification, albeit merely confirming what I already knew.

                    “the skin loses moisture rapidly during the first 1 000 ADD [accumulated degree days] but becomes mummified at approximately 10% moisture content ... temperature was the most important factor in the prediction of moisture loss ... there was approximately a 9% loss in moisture with each 10 °C [18 °F] increase in temperature ... Surprisingly, ... no significant correlation between desiccation rates and humidity, precipitation, or solar radiation ... permanent waterbodies near the carrion may be necessary for larger scavengers”

                    In Danielle’s case, I calculated that there was only about 100 ADD of thermal energy during the time she was missing. But that was to Base 10, in other words 10 degrees Celsius, which is the relevant base for the insect species we were dealing with. Anthropologists work on decomposition not insects, so they work on Base 0, or 0 degrees Celsius:

                    But that would add less than 300 ADD, giving a total of under 400, so well under 1000 ADD. So rapid drying out of her skin would have continued throughout that time, but it would presumably not have dropped to 10% moisture content, which seems at odds with the evidence of superficial mummification. The low temperatures in early February mitigated against rapid loss of moisture, and therefore cast doubt on the rapid-mummification theory. And the permanent water bodies (river and ponds) just a short distance away would have facilitated larger scavengers.

                    “One of the most glaring differences in the decomposition process in Montana compared to the decomposition studies in other parts of the country is that Montana experiences hot, dry summers and cool to cold temperatures with low humidity during the other seasons of the year ... The consequence of the temperature and humidity on the cadavers in the current study is that within the first 7 to10 days of summer decomposition, each cadaver desiccated to the point of mummification. Many of the previous studies from other parts of the country do not document such a rapid onset of mummification”

                    (Rodriguez was one of the author’s sources for that information, yet it appears to contradict his testimony in the Westerfield case.)

                    So even in ideal conditions, mummification takes 7 to 10 days - and San Diego does not have ideal conditions.

                    The following quotes are from:

                    “More extensive and complete mummification occurs in desert environments”
                    Although some media reports referred to Dehesa as a desert, it isn’t.

                    “Mummification also takes place in icy environments, not only because of the dryness of the air, but also because of the low growth of bacteria at such temperatures”
                    Rodriguez’s testimony referred to mummification in cold weather, but wasn’t clear as to why.

                    “The time necessary for mummification to take place is not well documented because of the long periods that usually occur before the body is discovered. It certainly takes some weeks ... In the deserts of Arizona, corpses exposed to the air require between 11 d and 1 mo to mummify”
                    So much, much longer than the couple of days implied in Danielle’s case. And it didn’t take very long for her body to be discovered.

                    “Mummification can have significant medicolegal relevance for the two great objectives of forensic anthropology, identification of the body and establishing cause of death”
                    So establishing time of death, or post-mortem interval, is not one of the “great objectives of forensic anthropology”. So one wouldn’t expect a forensic anthropologist, like Rodriguez, to be an expert in that.

                    “Autopsies in these cases require particular dexterity because the skin, which is brittle and disintegrates easily, is difficult to dissect”
                    There was no mention of any such difficulty during Danielle’s autopsy (confirming my statement above that it hadn’t dropped to 10% moisture content). On the contrary, the hardness of her mummified skin was a major argument for the postulated delay in insect colonization.

                    “It is a very common process in fetuses or newborn infants, who mummify much more rapidly and completely”
                    This is an argument used by Rodriguez during his testimony, in fact her small size was a major reason for him believing her body mummified rapidly, but Danielle was much bigger than a newborn, almost an order of magnitude bigger. The following statement is therefore relevant:

                    “Thirty-five Sus scrofa [wild boar] ranging between 1.8 and 22.7 kg were deposited to simulate body mass of human infant and juvenile remains”

                    Danielle weighed about 60 pounds, or 27.2 kg, and therefore was bigger than any of the animals used in that study of children. This supports my belief that his argument for rapid mummification was weak.


                    • #11

                      “Rodriguez noted that Danielle’s body was mummified to a high degree ...” (Page 19 of the Judges’ Opinion)

                      That was when the body was found, making it irrelevant, as we are interested in what happened during the first few days - really just the very first day - after it was dumped. It’s also clear from the description of the internal organs (obtained from the autopsy report), and the fact that the body was in the third stage of decomposition (the “active” stage), that the mummification was only superficial. (Rodriguez’s classification has four stages: fresh, bloated, active and dry.) The other defense entomologist Neal Haskell pointed out that a 3,000 year-old mummy in Egypt would be much more mummified. So it was extremely misleading for Rodriguez to claim that “high degree” - there was still a long way to go.

                      The evidence he pointed to was of external mummification: “the head is very dry. You have shriveling of the eye on orbital areas. The lips, in fact, and the mouth have become somewhat contorted and curled as a result of this desiccation process”. He himself admitted “She was not completely mummified”, many of the organs “were still anatomically recognizable. There were still fluids.” He explicitly mentioned her heart and brain. “She was primarily mummified on the external surfaces”. As evidence of the claimed high degree of mummification, he had also stated that the hands were very shriveled, and the foot was very similar. But under cross-examination he admitted that it's not unusual to find mummification in the hands or the foot, in fact they are among the first areas to mummify. And even with her hands “you could see red musculature”. Similarly, he said he had seen “very extensive mummification” in bodies from desert environments, giving the impression that Danielle was Egyptian-mummy-like mummification, and said it had occurred after as little as seven days. But subsequent testimony implied that it was also just external mummification.

                      As I indicated in my post of February 6 (“Appeal stuff” thread), I don’t understand how anyone familiar with the mild climate of Southern California could have associated San Diego with mummification. The Medical Examiner, Dr Blackbourne, even testified at the Preliminary Hearing that “mummification occurs only in sort of a dry, warm atmosphere. Commonly in the desert in the summertime”. But this was neither the desert nor summertime.

                      Perhaps the fact that Westerfield had gone to the desert over a hundred miles away that weekend, or that some media reports said the Dehesa body recovery site was a desert (it isn’t), misled people.

                      “... which [mummification] can happen very quickly with the body of a small child” (continuation of the Judges’ sentence)

                      Rodriguez said he had seen external mummification in less than 24 hours. This was right after he said he’d seen extensive mummification in only 7 days, and so gives the impression he’d seen extensive external mummification in less than 24 hours. However, in Danielle’s case, the fact that, after 23-25 days (according to the prosecution), there was still primarily only superficial mummification, in and of itself casts considerable doubt that this had happened to her.

                      So why did he think it had happened to her? Because “We even see this in infants that may be abandoned by the mother or die, as of such, that we typically will find a very dehydrated mummified newborn or fetus”. An “infant” typically means a child under one year of age - and he was apparently thinking of very much younger than that. A newborn would usually weigh under 8 pounds, and a 12-month-old under 23: Danielle weighed 60 - so much more, and she was about half that of the ideal weight of an adult female (100 pounds) - though about a third that of the average American woman (171 pounds). It is therefore highly questionable whether Danielle’s body would have mummified nearly as rapidly as he believed.


                      When asked why a child-size body mummifies at a different rate than an adult body, he replied “It's just the body ratio”, “it takes less energy to actually mummify a small child. There's less moisture. there's less surface area.”. So the above weights are very relevant. What about surface area? Danielle’s surface area (51 inches tall, 60 pounds) was about 10 square feet; that of a newborn girl (7.5 pounds and 49 cm) about 2.3 square feet; of a 12-month old girl (23 pounds and 74 cm) about 5 square feet; while that of an adult female of ideal weight (100 pounds, 152 cm or nearly 60 inches) about 15 square feet; and of the average American woman (171 pounds, 63.5 inches) about 20 square feet.


                      So Danielle’s body wouldn’t have mummified anywhere nearly as rapidly as those of the much smaller children Rodriguez used as his evidence. So, while he was correct in saying that “If this is an adult, you would have got some mummification”, it was an exaggeration to add “but not nearly as quickly and of the same condition as that of a small body”. Of a very small body, maybe, but not of someone as big as Danielle.

                      If any further proof were required, Dr Goff, the prosecution’s own forensic entomology expert witness, stated that, in their decomposition studies, they use fifty-pound pigs as a model or surrogate for humans - so not for human children, just humans, and probably mainly human adults. They have found, and it is generally accepted, that 50-pound pigs are an adequate substitute for humans in those particular studies. Danielle was bigger than that.

                      Rodriguez added that, just by looking at Danielle’s body, it was very apparent that this was a very rapid mummification. There was no explanation of how you could measure, just by looking at a body, how rapidly it had dried out. If true, it would seem that this would be helpful in estimating PMI.