Objection! (29 page)

So here we see an unarmed, innocent victim whose throat was literally torn out, attacked on the grounds that she must have been on steroids (she wasn’t), worn a fragrance enticing to dogs (she didn’t), and taken foolish chances (certainly not true). Needless to say, their creative blame-the-victim strategy, although it was imaginative, didn’t work.

The owners of the two dogs that attacked and killed Whipple were found guilty of all charges against them, including involuntary manslaughter and having a mischievous animal that kills. Marjorie Knoller was also found guilty of second-degree murder. Her husband, Robert Noel, sixty, sat without emotion as the verdict was read. Although he was not at home at the time of the attack, the jury agreed with the prosecution’s argument that he and his wife had willfully ignored multiple warnings about their two large Presa Canarios, Bane and Hera, knew they were a danger, and refused to act. Both dogs were destroyed.

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S U F F E R T H E C H I L D R E N

There are no winners
in child-molestation cases. Even when there is a guilty verdict, no one is truly victorious. A child is forever harmed.

They will go on to school, they’ll play on the playground, they’ll make their beds and clean their rooms and go on with their “normal” lives.

But they will never, ever be the same. There will forever be flashbacks, insecurities, and overwhelming feelings of helplessness. Some will have thoughts of suicide. Their pain will follow them into their own adulthood and their relationships. When I prosecuted these cases, all I could do was let the victims and their families leave the courthouse knowing that, win or lose, somebody had fought back.

Child-molestation cases are unique in the way they must be tried.

In these cases, you’d expect that children would be spared the blame-the-victim defense. Sadly, this is not so. Defense attorneys just position their strategy differently. Typical attacks made include claims that the child is lying or the child has been coached. In custody or divorce cases, it’s not uncommon to hear claims like, “This is about the mother—she wants money” or “The child is making it all up.” “The child has learning problems and doesn’t know what he or she is saying”

is another. Those are just a few of the don’t-blame-me strategies commonly used. They are manipulated to fit the facts of each case.

In a child-molestation case I tried in 1988,
State v. McCann,
the defendant, Antonio McCann, was good-looking, successful, and articulate.

He approached the victim, an eleven-year-old boy who was learning-impaired, and befriended him. For a period of months, McCann traded anal sex with the child for rolls of quarters. He had found the victim in a video arcade and was using the child’s love of video games to gain his trust. He disgusted me. I was fearful of the he’s-making-it-up defense, because my victim, who stood maybe four feet tall, had a severe learning disability. It was incredibly difficult to unlock the truth, interpret the child’s language, and tell his story to the jury. The rolls of O B J E C T I O N !

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quarters McCann gave to my little victim for use in the arcade were the greatest thing to him. The defense was right about one thing—the boy didn’t understand what was happening. But I did, and so did the jury.

McCann was found guilty of aggravated child molestation.

Sometimes local laws don’t help prosecutors of child-molestation cases. In an effort to aid the defendant, the statute often equates children with “idiots.” In other words, a child below a certain age must first be “qualified” under the law to testify. It is a simple matter of going through a series of questions with the child witness before beginning substantive testimony. Questions like “How old are you? Where do you go to school? What is the difference between telling the truth and telling a story? What happens if you tell a story? Is that a bad thing?”

are frequently asked. The questions seem innocuous, but the reality is that it doesn’t help to go through the “qualifying” questions with a witness in front of a jury. No other witness is treated in this manner.

Straight out of the gate, the prosecutor has to bolster the witness’s credibility before a word of testimony is uttered. This is a clear advantage to the defense in every case with a child victim.

In some jurisdictions, the “qualifying” groundwork for substantive testimony can apply to a child up to the ages of thirteen or fourteen. It is presumed that children may not know truth from fantasy. It represents one more hurdle for prosecutors to clear in order to have a victim testify.

Simply put, at the outset these young victims can then be attacked on the grounds that they are not old enough to separate fantasy from the truth. In my experience, children are the least likely witnesses to tell a lie. They don’t always have the talent of guile, the ability to lie with a straight face that unfortunately we adults achieve over the course of a lifetime.

The ages for prosecuting various attacks on children vary. In other words, in a single jurisdiction it’s a crime to videotape a sexual act with someone under the age of eighteen, but it’s statutory rape to have sex with someone under the age of fourteen. The laws vary, especially when it comes to sex crimes, making prosecution confusing. Luckily, in
State
v. McCann
, the jury could see through it all.

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C A N ’ T B L A M E T H E V I C T I M ?

B L A M E T H E P A R E N T S !

When an innocent child
victim manages to escape blame by the defense and media, the defense’s hands are tied. Defense attorneys certainly can’t blame the perpetrator, their client. Who else is left? The victim’s parents! It’s their fault! Lawyers conveniently channel their vitriol toward the parents when victims are so young and innocent that even the defense can’t blame them with a straight face. These heartbreaking cases illustrate a despicable practice that’s quickly becoming the gold standard in child-molestation defense.

D A N I E L L E V A N D A M

I was in California during the search for seven-year-old Danielle van Dam when I was walking past a little twelve-inch television set and noticed on the screen there were helicopters swarming around a group of trees near a roadside. The news crawl across the bottom of the screen said a girl’s body had been found. I stood there with my hand to my throat, frozen to the spot! I knew it was the missing girl. It wasn’t long before others joined me, silently watching the story unfold. Some people cried, others couldn’t bear what they were about to hear and walked away. It was the missing girl, and she was dead.

She was identified by a plastic necklace and a single Mickey Mouse earring she’d been wearing the night she disappeared. When I heard police describe the body as that of a young girl about three to four feet tall, it struck me how helpless this tiny victim had been against her attacker.

I’d been watching the case since first hearing of the child’s disappearance. As the weeks passed, statistics increasingly pointed toward the likelihood she was dead, but until that moment I saw the recovery scene on TV, inside I held a spark of hope that she was somehow still alive.

The little girl went missing from her two-story home in suburban San Diego on Saturday morning, February 1, 2002. Her father had put O B J E C T I O N !

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her to bed around 10:00 P.M. that Friday night, tucked her in, and said good night. The discovery of her remains came just one day after the van Dams’ neighbor, David Westerfield, pled not guilty to charges of murder, kidnapping of a child under fourteen, and possession of child pornography. Van Dam’s only contact with Westerfield was when she had sold Girl Scout cookies to him earlier that same year.

Shortly after Danielle was reported missing, Westerfield appeared at his dry cleaner’s wearing no shoes or socks and carrying a comforter with hair on it from the van Dams’ dog. Westerfield also gave his dry cleaner a jacket spotted with van Dam’s blood. Her blood, hair, and fingerprints were found in Westerfield’s recreational vehicle. Prosecutors believe that Westerfield abducted van Dam from her bedroom and took her to his house just two doors away, all while her father and two brothers were asleep down the hall. Her mother was out for the evening with coworkers.

With overwhelming evidence stacked against their client, what was the defense to do? At first, Westerfield’s team tried to blame the victim. That’s pretty hard to do with a seven-year-old girl, but they did try. They argued it was the youngster’s own fault that her hair and clothing fibers turned up in Westerfield’s home, bedsheets, and laundry by claiming the little girl had found her way into his bedroom while in the home on the occasion she was selling the Girl Scout cookies. They claimed her palm print ended up on the nightstand beside Westerfield’s bed in his giant RV because she played where she shouldn’t have. They reasoned that her disobedience in leaving her own yard and venturing into his vehicle was why her blood and hair were also found in the motor home, not because their client killed her there.

When that strategy fell flat, the defense lawyers turned their creative attention to Danielle’s parents, Brenda and Damon van Dam. The parents were crucified. It started with Westerfield’s claim that he had been hanging out with Brenda van Dam and her friends in a bar.

Brenda denied dancing with Westerfield but did testify she and her husband had smoked pot the night Danielle went missing. Brenda also disclosed she and her husband had been “swingers,” partner-swapping 2 0 0

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in the past. Defense attorney Steven Feldman intimated that blond hairs found in Westerfield’s recreational vehicle could belong to Brenda, suggesting that Brenda had some kind of relationship with the defendant. The attacks on Brenda van Dam were outrageous.

Feldman argued it was the decadent lifestyle of the child’s parents that set the stage for her murder, not by his client, Westerfield, but by a

“predator” the couple had unwittingly befriended. Feldman’s argument stirred the pot, and suddenly unsolicited “activists” began publicly demanding that Brenda and Damon van Dam, in addition to losing their daughter in the most heinous way, be charged with negligent child abuse resulting in death—a felony. Feldman argued that the van Dams’

lifestyle “put their children at risk,” opening their doors to unsavory characters. So after their little girl was brutally murdered, her parents faced losing their other two children.

Even more disturbing about the treatment the defense dealt out to Danielle’s parents, somehow blaming them for her murder, was the fact that Westerfield’s lawyers knew all along that he’d taken Danielle. Sources said prosecutors were on the verge of accepting the offer of Westerfield’s defense team, life without parole, in exchange for his disclosing the location of Danielle’s body. Just before the deal was struck, volunteers found the little girl’s remains just east of El Cajon. When prosecutors no longer needed Westerfield’s information, the deal collapsed. Of course, evidence of plea negotiations cannot be used as evidence in a trial, so the jury never knew Westerfield could easily have directed police straight to Danielle’s remains and eased her parents’ suffering.

Despite all this, defense attorney Steven Feldman knowingly dragged Danielle’s parents through the mud. Westerfield killed their daughter, and then his lawyer destroyed their reputation.

After one of the most brutal and unjustified attacks on a victim’s parents I have ever witnessed, David Westerfield was convicted and sentenced to death by a California jury. While on death row, he has written numerous letters, still blaming the parents. Westerfield now claims the van Dams framed him. Many may scoff at these unfounded O B J E C T I O N !

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claims, but remember, there is still an appeals process ahead. Westerfield is sitting on death row with nothing to lose, so count on him to continue the vicious attacks on the van Dam family.

Danielle’s death foreshadowed dangerous and disturbing times to come. Danielle’s kidnap and murder preceded a series of child-abduction cases, including Elizabeth Smart in Utah, Samantha Runnion in California, Cassandra Williamson in Missouri, Erica Pratt in Philadelphia, Carlie Brucia in Florida, and others. I predict that the same blame-the-victim defense will somehow make its way into these trials as well.

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T H E E L I Z A B E T H S M A R T D E F E N S E

I remember the night my face got hot and my voice cracked when I analyzed on national television the likelihood that Elizabeth Smart was still alive. I was the only one on the legal panel who would state what the statistics foretold. I could hardly bring myself to say it, but it was true, whether I liked it or not. Statistics are what they are, and they indicated that Elizabeth was dead. Many of us held a secret belief, a hope that somehow she would come home, but the hope dwindled every day.

Then . . . a miracle.

I remember getting the news that Elizabeth was alive. I immediately dropped to my knees and thanked God. Over the months since her kidnap, I had gotten to know Lois and Ed Smart and through them, Elizabeth as well. The nation rejoiced when Elizabeth Smart was finally found in March 2003 and was returned to her family after being snatched from a second-floor bedroom of her beautiful home in the middle of an upscale neighborhood. By the time the citizens of her hometown of Salt Lake City gathered to celebrate the news in the same park where a candlelight vigil had been held after she was kidnapped, rumors and accusations that once lived only in late-night chat rooms made themselves public. Somehow, it was the parents’ fault—they were too involved in their church, too trusting, too perfect. Something was horribly “wrong” inside the Smart home.