News reports that David Westerfield's plea negotiations fell apart after volunteers found the body of his victim, 7-year-old Danielle van Dam, touched off a barrage of criticism.
Many in the community breathlessly asked-despite the jurisprudence tenants on which American society is based-how defense attorneys Steven Feldman and Robert Boyce could possibly defend a man they knew was guilty.
But the question drowned out by that off-key choir was, how could District Attorney Paul Pfingst and prosecutors Jeff Dusek and George “Woody” Clark turn down a sure-fire conviction and instead spend millions of taxpayer dollars-some speculate maybe $10 million-on a trial when the suspect was willing to plead guilty to the crime?
The question is an especially compelling one given the fact that Westerfield's trial on kidnap and murder charges, which ended in August with a conviction and a jury's recommendation in September that he be put to death, will most certainly end up costing the community more than it would cost to lock him away forever. The state Department of Corrections spends only $26,690 per year to imprison an inmate. Assuming Westerfield agreed to plead guilty to murder in return for a sentence of life without the possibility of parole, and assuming the 50-year-old lived another 30 years, San Diego could have avoided a trial and locked him away for the rest of his life and it would cost the state $800,700.
The District Attorney's Office does not comment on the existence of plea negotiations in any case. But if a plea bargain was offered, there would have been many benefits had it been accepted, local lawyers say.
A plea bargain might have yielded a confession from Westerfield himself about what really happened the night Danielle van Dam disappeared from her bedroom, so that her parents might know what really happened to her. The van Dam family could have been spared the public humiliation of their sexual escapades and recreational drug use becoming fodder for titillating water-cooler banter. Twelve jurors wouldn't have lost two months of their lives. The community would have been spared the day-after-day torture of the All-Westerfield-All-The-Time news coverage. And San Diego taxpayers would have saved millions of dollars on a trial.
Some in the legal community say the refusal of the DA to accept the plea bargain was a huge-and cruel-mistake that forced the consequences on a grieving family and innocent taxpayers. And some of them say the decision was election-year politics at its worst.
However, prosecutor Clark says the community has to put all that aside, because when it comes to heinous wrongdoing, the punishment must fit the crime. Despite what it costs to get there.
A study of Los Angeles County criminal trials pegged the average cost of trying a death-penalty case at $1,898,323 and the average cost of a non-death penalty trial at $627,322. While the official cost of the Westerfield trial won't be released until after his sentencing, scheduled for Jan. 3, lawyers who have watched or been involved in cases like this one say it's safe to estimate the trial has cost millions.
“It's very safe to say in the millions, probably not over $10 million... probably comparable to the O.J. case,” said Frank V. Puglia, a criminal defense attorney in San Diego. From June 1994 until October 1995, the O.J. Simpson case cost Los Angeles County taxpayers about $9 million, nearly $4 million of which was spent by the L.A. County DA's Office.
Why so much for the Westerfield trial? For one, collecting, analyzing and interpreting forensic evidence is expensive.
“The forensic evidence is very costly, not just to do it but to bring the forensic experts in,” Puglia noted. As well, many other witnesses came from outside San Diego and their expenses would be considered a trial cost.
Salaries of county employees will be another large chunk. Clark said full-time workers on the case included himself, fellow prosecutor Dusek, a full-time investigator who was assisted by others in the department and a witness coordinator. Many other DA staffers spent part of their time on the case, too.
Comparing the cost of this trial to other high-profile cases may be a matter of comparing apples, oranges, mangos and avocados. The size of the community in which the case was tried matters, as does the length of the trial, the type of evidence presented and whether the jury was sequestered. For example, while the O.J. Simpson case-for which jurors were sequestered-cost some $9 million, this year's five-week trial of Kennedy cousin Michael Skakel for the 1975 murder of Martha Moxley in Connecticut cost only $123,137. This year's trial of two San Francisco lawyers charged when their dogs mauled and killed a neighbor cost about $700,000.
When compared to the cost of a trial, accepting a plea bargain is considerably less expensive.
The Westerfield trial “was very, very expensive,” said criminal defense attorney Gerald Blank. “Had there been a plea bargain we would have saved money, no doubt about that.”
Although Clark could not comment specifically on the Westerfield case, he could speak in general about how the DA's Office approaches plea negotiations.
In general, every case goes through a plea-bargaining period. “We have people in our office that are assigned to negotiations,” Clark said. In fact, only a small percentage of cases-estimates are between 5 percent and 12 percent-go to trial, the vast majority of the others are resolved through plea bargains.
After a plea bargain is accepted, the defendant admits to the crime in a court hearing. At that hearing the parties also set a future sentencing date, according to Clark. After that change-of-plea hearing, the only other court proceeding is the sentencing.
If indeed the plea bargain was offered and minutes away from being accepted when Danielle van Dam's body was found, the $800,700 it would have cost to imprison Westerfield begs the question: Why not save tax dollars by taking the deal?
Puglia thinks the DA's Office should consider economic questions before electing to try big cases. “I think the prosecution should have taken a look at how much this was going to cost to prosecute compared to what it potentially was going to accomplish.... I think you would be careless as a prosecutor not to take that into some consideration,” he said.
Everyday criminal trials are not as expensive as a trial like Westerfield's so prosecutors needn't consider cost in all cases, he continued, “but sometimes you have to be flexible enough to deviate from that principal.”
Clark says that view is a narrow one. “A judgment is made as to what's the proper course in the case,” he said, and if a specific punishment is appropriate for a crime, then economics shouldn't be a factor. That may be a concern in small counties with limited economic resources, but Clark said it's never been a part of any discussion in his 20 years with the DA's Office. San Diego is too large a county to have to worry about a big criminal trial depleting its general fund, he added.
Plea negotiations are a relatively new addition to the justice system, Clark noted. It wasn't until the number of cases needing trial far exceeded the number of courtrooms available-which happened in earnest during the last decade-that plea bargaining became commonplace. Every defendant is entitled to a trial, he pointed out, and sure the justice system would grind to a halt of all cases had to be tried before a judge or jury.
However, “we as a community have become wrapped up in the thought that everything should be plea bargained. There are many cases that shouldn't be,” he said, including those in which “you think a conviction or a special punishment is appropriate.” And if that conviction or special punishment is the maximum penalty for a crime, then “there is no incentive to the defendant to plead guilty,” he continued.
In many cases, most often forcible-sex crimes or homicides, “when certain charges and punishments are appropriate, we will not offer a defendant anything less,” Clark said.
While members of the legal community wonder how much thought was given to the economic cost of the Westerfield trial, they also wonder how much consideration was given to its emotional costs. “I'm talking strictly in general terms of a case like Westerfield or another big case that comes along,” Blank said. “I believe that the DA should consider the whole picture, which includes the emotional impact not only on the family, or people more directly affected, but the emotional impact on the entire community of having to go through a Westerfield-type case being tried here. It garnered worldwide attention.”
Puglia agreed: “It's not just the price-there's more to it than that. The family is going through this, the public is going through this over and over again. The family's personal life is being thrown out into the world. [Pfingst] could very easily have taken the plea of life without possibility of parole and had the case go away with very little money and very little trauma to the family.”
Clark says these issues were considered. “Everything is taken into account, particularly the feelings of the victim, or the victim's next of kin if it's a homicide case,” he said. “But having been through a number of these cases, frequently, the victim deserves justice.”
Some think the office refused to continue negotiating because Pfingst was in locked in a nasty bid for re-election, which he lost to Bonnie Dumanis.
“I think it was a political decision more than anything else. What will he gain by the death penalty except years and years of appeals? To be able to get that over real quick with life without the possibility of parole should have been the way to go,” Puglia said.
“I have never found the area of politics to enter into any case that I've been involved in,” Clark responded.