'Swinger' Testimony Will Be Allowed

A judge in the upcoming trial of a San Diego man accused of murdering a 7-year-old girl ruled on Wednesday that jurors could hear only limited evidence about what defense lawyers say was her parents' "swinging" sex life.

San Diego Superior Court Judge William Mudd also decided that the jury could be shown pornographic images found in the computer of 50-year-old defendant David Westerfield, but said he would not allow prosecutors to display them all.

Mudd issued the rulings after a seven-day hearing into legal issues in the trial of Westerfield, who is accused of kidnapping his young neighbor Danielle van Dam from her bed in the quiet San Diego suburb of Sabre Springs and killing her.

Westerfield maintains his innocence and faces the death penalty if he is convicted at trial, which is proceeding at a breakneck pace for a California capital murder case because the design engineer has asserted his right to a speedy trial.

During an earlier hearing, Westerfield's attorney questioned Brenda and Damon van Dam to determine if they engaged in "swinging" - swapping sex partners with other couples - and their admission that they smoked marijuana on the night of the kidnapping.

The defense is expected to argue at trial that someone the van Dams met through swinging or at a party at their house could have been the girl's killer. Prosecutors are expected to argue at trial that the van Dams' marital activities on the night that their daughter was abducted are irrelevant to Westerfield's guilt or innocence.

Mudd did not spell out for lawyers which evidence would be admitted, saying only that it would be "within certain parameters set by the court."

The defense asked Mudd to limit the pornographic images seized from Westerfield's home that jurors are allowed to see on the grounds that the panel would be prejudiced against him.

Mudd ruled that the prosecution can introduce only those images that help prove a motive for Westerfield, who prosecutors claim was motivated by a lust for young girls.

In a pretrial motion unsealed on May 6, Deputy District Attorney Jeff Dusek said that "the defendant kidnapped a 7-year-old girl from her own bed. He killed her, then dumped her nude body in an isolated location. The conclusion is inescapable: she was sexually molested prior to her murder."

"The computer images fed the defendant's fantasies," argued Dusek.

The judge rejected a request by Westerfield's lawyers to hold a separate trial on a misdemeanor child pornography charge.

The jury will be allowed to hear statements Westerfield made to police a few days after Danielle was reported missing.

Mudd also granted prosecution motions to admit into evidence items found in Westerfield's home and parts of a 911 tape recorded when the child's body was found.

No ruling has yet been made on a defense request to sequester the jury during the trial to shield them from potentially prejudicial news coverage.