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Westerfield likely to die an old man

SAN DIEGO (AP) - The man who kidnapped and killed 7-year-old Danielle van Dam of San Diego isn't likely to be executed any time soon, perhaps not ever, even if jurors vote for it.

Prosecutors began arguing on Wednesday for the death penalty against David Westerfield, telling a jury that the 50-year-old engineer "deserves" to be executed for murdering his neighbor.

But California is home to the nation's most clogged death row, housing 616 condemned inmates. Juries add nearly two dozen inmates each year. Rarely are they executed.

Politicians, defense attorneys and prosecutors have been saying for years that the process will soon speed up. Death row, though, keeps growing.

Ten inmates have been executed since California resumed the death penalty in 1977 after the U.S. Supreme Court lifted a temporary ban on capital punishment nationwide. The last execution was January. Twenty-two of the condemned died of natural causes.

By contrast, Texas, the most active death penalty state, has executed more than 240 inmates since the high court allowed executions to resume.

To pick up the pace, the California Supreme Court recently adopted a wide range of measures, including increasing its capital punishment staff. The Legislature has funded more capital defense lawyers. Congress has sped up deadlines for inmate appeals.

Still, 1 in 4 California's death row inmates haven't yet been given a lawyer for their first appeals to the state Supreme Court. Justices face no deadlines to appoint these lawyers, or rule on their appeals.

The absence of timelines leads to lengthy delays. On Monday, for example, the justices ruled that Jesse James Andrews should die for a 1979 Los Angeles triple murder - 23 years after the crime and 18 years after the conviction.

Now Andrews' case will weave through the federal district and federal appellate courts, and eventually to the U.S. Supreme Court. These courts also face no deadlines; when they will rule on Andrews' case is unknown.

What is known is that only two living California condemned inmates are currently approved for execution by the 9th U.S. Circuit Court of Appeals.

One case was cleared in July 2001 and is pending before the U.S. Supreme Court. The other was cleared Monday and is pending petitions for reconsideration.

Timelines aside, the 9th Circuit set aside nine California death sentences this year. Most claimed ineffective counsel, a typical theme in death penalty appeals.

If Westerfield is sent to death row, he may argue that his jury was prejudiced because prosecutors also tried him on child pornography charges after police discovered digital photos in his home of children being sexually assaulted.

Some legal experts say the 9th Circuit has been reversing more death sentences because the California Supreme Court has been upholding about nine of every 10 since 1986, when state voters removed three justices who repeatedly reversed death sentences from the California Supreme Court.

Dane Gillette, who supervises all death row appeals for California's prosecutors, said Westerfield will likely be executed in about a dozen years if he lands on death row. But that's just a rough guess - and it's still more likely that he'll die of natural causes than a lethal injection.

"We can't spend a lot of time worrying about whether all of them will be executed or not," Gillette said. "We've got to focus on each individual case."

Lynne Coffin, California's chief public defender, said there was no need to speed up executions.

"The courts want to ensure that people who deserve it get it," she said. "Do you want a system like China where they take you out back and shoot you after your conviction?"

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