The Appeal Of Christopher Porco Continues.... 
New York State's highest court, the Court of Appeals, has upheld Christopher Porco's conviction for murdering his father, Peter and seriously injuring his mother, Joan.

She testified at his trial (in his defense) that she had no recollection of remembering the crime or acknowledging to detectives that Chris was responsible. Expert medical evidence was presented to support her testimony and because of the extent of her brain damage, she would not have been able to consciously respond to any questions at the time. She apparently nodded her head indicating "yes" when asked if Chris had inflicted the wounds.

Porco's attorney wanted a ruling that would have declared a detective's testimony as unconstitutional. The attorney claims that the detective violated Porco's Sixth Amendment rights when he testified that Joan Porco indicated to him that Chris was the attacker.

The high court denied the appeal for a new trial by stating that in spite of the mother's incriminating response, it was deemed "harmless" to the jury and there was overwhelming evidence in the case that confirmed Porco's guilt.

As in Porco's case, the Westervelt case was appealed and also turned down at the lower Appellate Court level. However, because of the questionable allowed testimony of his mother's "head nod", Porco was allowed to appeal to the next highest Court of Appeals. Further appeals for Porco were indicated by his attorney. However, now they will have to be presented in the Federal Court System.

As reported in numerous earlier blog entries, the same police personnel, prosecutors and defense attorneys all participated in the Erick Westervelt case during the same time period.

The big difference between the cases is that there was absolutely no evidence that either placed Erick at the crime scene or connected him to it.

The Court of Appeals Decision

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Searching the Archives 
While searching back through the newspaper archives for a particular item, we came across some interesting articles pertaining to the Westervelt and Porco cases. Four years ago this week, Jarrett Carroll, an investigative reporter with the Altamont Enterprise posted two articles. Out of all the news accounts, NCJ regards this newspaper as producing the most accurate, in depth accounts of what took place in these two cases.

The "Enterprise" is a small Albany County newspaper that apparently has much more integrity than the large media sources.

Read the articles here.

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Will Words Lead To Action? 
..... or is this wishful thinking! Many opinions have been offered through the years with regards to criminal justice reform and the miscarriage of justice. This attached article pertains to a relatively unknown Act within the federal system, which in turn has a direct bearing upon the states. The authors point out the flaws in the administration of the habeas corpus statutes that have been adopted from the U.S. Constitution. The consensus of these three Cornell Law School professors is that the current federal relief for a wrongfully convicted person has been severely marginalized and subsequently rendered ineffective.

Here is their article as posted in The National Law Journal.

The gutting of habeas for state defendants

May 16, 2011 - By John Blume, Sheri Johnson and Keir Weyble.

Fifteen years ago last month, President Clinton signed the Antiterrorism and Effective Death Penalty Act (AEDPA), which made substantial changes to federal habeas corpus law. Despite his assurance that "federal courts will interpret these provisions to preserve independent review of federal legal claims," we have witnessed the evisceration of habeas in the intervening years, making justice substantially more difficult to obtain for those wrongfully convicted in state courts. Unfortunately, we are now hearing calls for more radical restrictions of habeas in a wrong-headed bid to address budget concerns.

Habeas corpus, expressly guaranteed by our Constitution, serves the criminal justice system as a final check to ensure justice has truly been served. Literally translated as "that you have the body," a habeas corpus challenge enables an individual held in the government's custody to challenge the legality of the detention.

The AEDPA's provisions have stymied federal courts by placing overly restrictive limits on a person's ability to have the merits of his or her case heard. Petitioners are barred by time limits that run too quickly, are overly complex and can be difficult to calculate, even for seasoned attorneys. Even more damning, the law prohibits federal courts from remedying miscarriages of justice; they are powerless to correct many of the state courts' misinterpretations of U.S. constitutional or federal law.

The net result is that the AEDPA has effectively closed federal courtrooms to prisoners with legitimate claims. This closing is all the more troubling given the failure of states to provide adequate counsel and meaningful post-conviction review in their own systems. Many states do not appoint counsel for post-conviction review, no matter how serious the prisoner's allegations or how incapable he or she is of presenting these complex and technical claims. Other states provide wholly inadequate compensation to counsel, resulting in the appointment of lawyers with little experience or incentive to commit the time necessary to fully develop their client's case. These and other hurdles make clear that the wrongfully convicted can often only find justice through federal habeas.

Despite the wrongfully convicted who are languishing in prison because of the AEDPA's failures, there are those who would use the current budget debate to call for further restrictions on habeas petitions. Under these proposals, habeas would be available only in capital cases and those cases in which new evidence of innocence has been found. These are misguided and costly proposals. Habeas is absolutely essential to correcting wrongful convictions, and with no alternatives, habeas filers who today would make constitutional claims would instead have to make innocence claims, which could result in far more lengthy, fact-intensive litigation.

As we reflect on the anniversary of the AEDPA and consider the injustices it has wrought, there are reforms that state and federal lawmakers could adopt to effectively reduce the need for habeas review and increase the likelihood that meritorious habeas petitions receive a full and fair hearing. First and foremost, providing effective, adequately resourced counsel for indigent defendants in the trial and appellate phases is the best chance the criminal justice system has of getting it right the first time. Passionate attorneys with the resources to investigate their clients' cases will be able to address potential problems that arise during trial. Since many habeas claims are related to ineffective assistance of counsel, this is a critical reform. Prisoners should also be appointed competent counsel for post-conviction review. Evidence shows that when petitioners are given counsel to guide them through the labyrinth of post-conviction review — as they are in capital cases — win rates go up.

Although adequate counsel will significantly reduce the need for federal review, errors will still occur in state proceedings. Congress should allow federal courts to perform robust, substantive review of habeas petitions, with the authority to correct state court holdings that erroneously apply U.S. constitutional and federal law. Beyond these proposals, there are numerous other reforms Congress can adopt to improve habeas.

Post-conviction review in the federal courts may cost some money, but certainly for the wrongfully convicted — indeed for all Americans wary of an overreaching government — the constitutional right to challenge one's detention is priceless. Congress must reform the AEDPA to restore this right to the hallowed position our founding fathers intended.

John Blume, Sheri Johnson and Keir Weyble are professors at Cornell Law School.

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The Current Record Holders. 
As records go, this record is not something to be proud of. In fact most people would agree that it is downright disgusting and largely preventable.

It is the record for being the longest incarcerated individual in the United States for a wrongful conviction.

Barney Brown is presently the unofficial title holder of being incarcerated for 38 years in a Florida prison for a crime that he did not commit. He was set free on September 24, 2008.

Here is a news article about his case.

James (Jamie) Bain, who spent 35 years, also in a Florida prison and was released last year through DNA evidence, is currently in second place. However, he is in first place in another category. His 35-year imprisonment made him the longest-incarcerated victim of a wrongful conviction to be freed through DNA evidence.

In December 2009, James Bain was exonerated by DNA testing for a kidnapping, burglary, and rape he did not commit. Bain's appeal had previously been denied four separate times.

Here is an article about him.

There have been several people released that were in the low 30’s (years). Quite a few more were incarcerated in the upper 20’s.

Who is currently in prison for a wrongful conviction that is going to shatter Barney Brown’s or James Bain’s present records? OR, will something be done to release the present possible contenders.

These records should never be broken.

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Wrongful Conviction: Mandatory Ten Years. 
Doesn’t that sound like a sentence for breaking the law? Well, it appears to be an unwritten law applied to anyone who is somehow convicted of a violent crime that they didn’t commit. Apparently a wrongfully convicted person must spend at least 10 years in prison before someone realizes that maybe they didn’t do it. It seems that it takes that long for the justice system to begin looking into any miscarriage of justice.

The ironic part is that all of the individuals that contributed to the wrongful conviction have moved on to retirement or elevated positions within the system. No contributor is ever held accountable for their actions and will always maintain that they did nothing wrong. They, along with victims’ families will never acknowledge any level of innocence in the cases. No amount of forensic scientific evidence or catching the actual perpetrator will convince them otherwise.

The abuse of power within the criminal justice system is being evaluated in a few states and there is talk of accountability being enforced. As of yet, it is still in the discussion stages.

All you have to do is look at all of the 250 plus cases that have been recently reversed by DNA evidence. The vast majority of those wrongfully convicted people spent at least 10 years behind bars. When is there going to be a faster solution for analyzing these types of cases?

The cases that involve DNA evidence are more likely to be resolved sooner. However, for every one of them, it is estimated there are hundreds of cases that don’t have any DNA involved. The numbers are staggering.

Does that mean that Erick Westervelt, whose case has no DNA evidence will never be acknowledged by the justice system? Or, will his case begin to be looked at in 4 years when his “mandatory 10 years” is up?

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2011: New Year: New information! 
There are a few new things to report that have come to our attention recently. There is a new website being developed by friends and relatives of Erick Westervelt. It is still under construction and being formatted on a regular basis. There is enough substance available on it now for viewing, especially the Westervelt trial transcripts. Therefore we will provide a link:

There is also some interest in Erick’s case by an innocence organization. They have contacted him and he has welcomed their offer to evaluate his case. The innocence group was contacted last year by a staunch supporter of Erick. NCJ has previously noted the value of support groups in these types of cases. Possibly, Erick’s new website will develop this aspect further. When further information and details are available to NCJ, they will be posted.

Hopefully, 2011 will bring some encouragement for Erick and all wrongfully convicted people.

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Another Good Indication. 
The winds of "justice reform" have been blowing for the past few years. There have been gusts at times and a fairly steady breeze at others.

The latest breath of fresh air comes in the form of an endorsement by the entire New York State law enforcement community.

Here is a copy of an Associated Press article in the Albany Times Union newspaper.

NY protocols backed for videotaping interrogations

MICHAEL VIRTANEN, Associated Press
Sunday, December 12, 2010

ALBANY, N.Y. (AP) — New York prosecutors, police and lawyers are endorsing the videotaping of suspect interrogations, now a common practice in many counties and considered a safeguard against both false confessions and defendant allegations of coercion.

This week, statewide groups representing district attorneys, sheriffs and police chiefs plan to endorse protocols for making videos of crime suspects. The state police, New York City's police department and the New York Bar Association are also backing the practice.

The state Division of Criminal Justice Services, which has already provided more than $1.5 million to prosecutors and police departments to buy recording equipment for interview rooms in 42 counties and plans to announce additional grant funding. The NYPD is also doing it in several precincts.

A Bar Association task force study concluded last year that false confessions had contributed to 12 wrongful convictions, later overturned. New York law requires corroborating evidence to support confessions, though attorneys say they are often persuasive since jurors commonly believe an innocent person would never confess.

The group urged mandatory electronic recording of entire felony interrogations to help determine whether confessions are reliable. A dozen states now require recordings.

Legislation to mandate videotaping police interrogations stalled in the New York Legislature. One police concern was funding for equipment.

Other legislation intended to reduce false convictions and help police identify suspects, which also stalled in the Legislature, would require collecting DNA from criminals convicted of all misdemeanors. Under current law, felons and those convicted of some misdemeanors have to give DNA samples, which go into a central data bank that police can check against DNA taken from scenes of unsolved crimes.

Some prosecutors now are making DNA samples part of misdemeanor plea bargains.

In June, state law enforcement officials endorsed specific guidelines for handling police lineups and photo arrays to reduce misidentification by witnesses of crime suspects.

Unfortunately, this support for justice reform relative to videotaping all felony interviews comes too late for the people like Erick Westervelt, who didn’t have the opportunity for the jury to see what took place.

Most likely, a police induced false confession would never materialize if it was scrutinized as to how it was obtained.

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New Innocence Clinic at Cornell Law School 
Exoneree shares story with Cornell community

Cornell wrongful-conviction clinic brings exonerated man to law school

Steven Barnes talking about his experience with the Innocence Clinic in 285 Myron Taylor Hall, Cornell Law School. (Provided Photo)

By Rachel Stern • • October 5, 2010

Article from

For Steven Barnes, every day is a holiday.

Barnes, a native of Marcy, N.Y., was exonerated in January 2009 after spending nearly 20 years in prison for a crime he did not commit. He was 23 years old when he was convicted and 42 years old when he was released. Because he lost what he considered to be his "prime years," Barnes now tries to take advantage of each day.

"Every day is Christmas," Barnes said. "I try to always stay positive. My future will be so bright I'm going to need to wear sunglasses."

Barnes was convicted of the rape and second-degree murder of 16-year-old Kimberly Simon in 1989. After the Innocence Project -- a not-for-profit group dedicated to exonerating wrongfully convicted people -- took on Barnes' case, tests showed his DNA matched none of the four samples found on the victim's body and clothing.

Tuesday afternoon at Myron Taylor Hall at Cornell University, Barnes told his story, spoke of how common wrongful convictions are and pleaded with the crowd to stay positive.

The Innocence Clinic, started at Cornell this fall by adjunct law professor Christopher Seeds, sponsored the event. The clinic is a class of eight students who work on cases that appear to have a viable innocence claim.

Seeds organized the event to show the community that cases like Barnes' are not very rare. More than 250 people have been exonerated through the Innocence Project.

"Unless you hear someone like him speak, you cannot totally understand the reality of being in prison for something you didn't do," Seeds said. "Once people are convicted and lose on appeal, we trust the justice system so we presume guilt. That is not always the case."

Barnes said he lost the case because of not-validated or improper forensic science, eyewitness misidentification and flat-out lies. He told the audience jail was "a nightmare" and being released was the happiest day of his life.

After being released, Barnes said, he had to learn how to use a cell phone, the Internet and adjust to how different his hometown looked.

Barnes now works with the Innocence Project, gives talks at colleges and conventions and works with high school drop-outs.

He gives his students and audiences a message he had to learn the hard way.

"You don't think about your freedom until it's gone," Barnes said. "This happens more than anyone will ever realize. But you have to stay positive and realize life is like an elevator. Sometimes you will be at the top and sometimes at the bottom."

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A Scathing Report! 
In the previous entry, the Jeffrey Deskovic case was referenced as a comparison to Erick Westervelt’s case. Even though the crimes were not exactly the same, there were many similarities in the investigation, prosecution and defense that existed in both cases.

Some of the similar behavior conducted by the police was tunnel vision, selective recording, disregarding evidence and improper police tactics that produced a false confession. The prosecution of both cases also followed similar paths of misconduct and questionable presentation of facts. The defense was ineffective in both cases due to not maximizing their client's psychological vulnerability or the exculpatory value of the scientific evidence.

In 2007, a 38 page report on the conviction of Jeffrey Deskovic was prepared by a case review panel at the request of the Westchester County, NY, District Attorney, Janet DiFiore. The panel was comprised of two former judges, a former District Attorney and a Legal Aid Society attorney.

The panel addressed the failures, errors and outright neglect on the part of many individuals in that county’s criminal justice system. The report is an extremely critical account of what went wrong in the case, which is a rare “after the fact” evaluation regarding New York State criminal cases.

It is quite possible that there were multiple motivations for producing the report, however, there are many benefits to be derived from it. Problems are never solved unless they are realistically addressed. Hopefully this type of review and report will be the criteria for future criminal justice reform.

The reality of these two cases is that Jeffrey Deskovic is finally free and Erick Westervelt’s freedom remains unresolved. In the last few years, there has been a slow undercurrent towards reform and prevention of these types of convictions. However, there is no relief in sight for the presently incarcerated victims that are screaming for help.

Is Westervelt also going to spend 16 years in prison before someone takes a closer look at what happened to him?

Here is the Report On The Conviction Of Jeffrey Deskovic.

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Inside Interrogation: The Lie, The Bluff, and False Confessions 
Inside Interrogation: The Lie, The Bluff, and False Confessions, is a recent article written by psychologists Jennifer T. Perillo and Saul M. Kassin. Below is an excerpt from it.

If innocence as a state of mind leads people to trust the criminal justice system, then interrogation techniques designed to buffer innocent suspects may not have the intended effect. In particular, consider the bluff technique, a common and less deceptive alternative to the false evidence ploy. In using the bluff, interrogators pretend to have evidence without additionally asserting that this evidence necessarily implicates the suspect (e.g., stating that witnesses were present and will be interviewed; or that blood, hair, or other biological evidence was collected and sent to a laboratory for testing). Some interrogation manuals specifically recommend using case files, dossiers, and other visual aids as a means of bolstering the bluff (e.g., Inbau et al., 2001; Zulawski & Wicklander, 2002). In principle, the bluff should produce diagnostic outcomes by threatening the actual perpetrator with certain detection, increasing the incentive to cooperate and confess (as with the presentation of strong evidence discussed earlier; see Moston et al., 1992). Yet innocent suspects should not feel similarly threatened by the future evidence implied by the bluff. Knowing that they have left no trail of incriminating evidence, they should not fear being implicated and, hence, should not confess as a way to cut anticipated losses. Indeed, as Inbau et al. (2001) put it: ‘‘Merely introducing fictitious evidence during an interrogation would not cause an innocent person to confess. It is absurd to believe that a suspect who knows he did not commit a crime would place greater weight and credibility on alleged evidence than his own knowledge of his innocence’’ (p. 429). The hypothesis that the bluff technique should elicit confessions from perpetrators but not from innocents makes intuitive sense. Based on actual case anecdotes, however, Kassin (2005) suggested the contrary hypothesis that to an innocent suspect under interrogation, the ‘‘threat’’ of proof implied by the bluff represents a ‘‘promise’’ of future exoneration, paradoxically making it easier to confess. In a case that illustrates how the phenomenology of innocence can wreck havoc on a suspect’s decision making, Todd Johnson, who was ultimately acquitted, had confessed to his wife’s murder after 19 h of interrogation when police said that they found blood in his car to be sent to a laboratory for DNA testing. Knowing that the blood could not be his wife’s, this defendant explained later that he confessed because he was exhausted and knew that the test results would show his innocence (Missouri v. Johnson, 2001). This logic was also revealed in the case of Jeffrey Deskovic. During a 6-h interrogation, police asserted that they had collected DNA at the rape and murder scene for testing. At that point, despite—or because of—his innocence, Deskovic confessed and was later convicted. After his exoneration, he explained why he confessed: ‘‘Believing in the criminal justice system and being fearful for myself, I told them what they wanted to hear.’’ Knowing that the DNA testing would show his innocence, he said, ‘‘I thought it was all going to be O.K. in the end’’ (Santos, 2006). Interestingly, there was DNA evidence in this case and the test did exclude Deskovic. He was tried anyway, however, and convicted by a jury. Sixteen years later, he was released when the DNA was matched to the actual perpetrator. These stories raise two important points about the bluff as an interrogation tool. First, it need not make suspects feel pressured or trapped, or alter their beliefs and memories, to elicit a confession. Rather, innocent people may ‘‘voluntarily’’ decide to confess out of a misplaced confidence that their admission will later be disproved. Second, it should not matter whether the police cite future evidence as a tactical bluff or as a truthful matter of fact. To the extent that an innocent suspect harbors the hope of future exoneration, the net effect may be the same: to increase the risk of confession.

The highlighted portion above is one of the unfortunate errors in judgment made by Erick Westervelt. The detectives were not only bluffing, they utilized the “false evidence ploy” and told him that they had physical evidence and witnesses.

During the trial, the prosecution exploited a previous minor encounter that he had with law enforcement, which was ultimately dismissed. He had a clean record and had taken the Albany and New York State Police entrance exams and passed both with high marks. Erick had been raised to trust and respect the police. He was majoring in Criminal Justice at SUNY Albany and wanted to be as helpful as possible. It never occurred to him that the police would lie to him about everything.

The long hours, escalating accusations of his involvement and finally their denying a lawyer being present, took it’s toll. His perception of the police was eroding.

During the hours that he was interrogated at the Albany Police Department, which was not videotaped or recorded, he decided to make up a story, that he thought would later be easily proven to be false. Unfortunately, the police did not make a serious attempt to corroborate his story and accepted it at face value as his confession. In other words, they did not corroborate the confession evidence.

Erick’s reasoning, like Jeffrey Deskovic, was to tell them what they wanted to hear so that he could go home. After all, he thought they were just asking questions about him being in a fist fight with the victim. Albeit, that was not the actual circumstances and his “voluntary” detention quickly dissolved into implied arrest and custody.

Yes, the police can legally lie to a suspect!

That concept should be carefully taken into account when criminal justice reform is addressed. More definitive guidelines are needed to avoid police-induced false confessions.

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