Miscarriage of justice? 
“A miscarriage of justice is primarily the conviction and punishment of a person for a crime that he or she did not commit.”

There probably isn’t any human emotional situation that can compare with the despair of being wrongly accused. From early childhood, most every person can recall an instance when they were chastised for, or accused of, something that they did not do. Was it something at school or home when you were blamed for something that another student or sibling did? Think back and capture that feeling. Then fast forward to adulthood and try to imagine being accused of committing a crime that you did not do. Well, you didn’t commit the crime and are innocent; right? You help the police try to figure things out and are cooperative. They relate a story that is “no big deal” and that the crime is minimal and they tell you that you have been accused of doing it. You figure if you just tell the truth, everything will be all right and they will find out who really committed the crime.

In the first instance this is a typical scenario. The police will check your story out, compare it with other stories, the actual truth will surface and that will be the end of it. The problem is that it does not always happen this way when someone changes the rules. The police want more and they are persistent. After many stressful hours, they want a statement from you and they manipulate you into writing some things that aren’t true. Well, as soon as you give them what they want, then they will let you go home. After all, it is just a minor altercation and “no big deal”; WRONG. This is what Erick Westervelt claims happened to him.

Try to imagine the feeling when he realized that the “no big deal” turned into being accused and arrested for the particularly heinous crimes of first degree assault and second degree attempted murder. All along, he was led to believe that they were accusing him of supposedly just being in a fight with the victim. This is the scenario that unfolded in the video tapes during the many hours that Westervelt was being interviewed by the police. He claims to have gone into shock and was totally overwhelmed with despair when they finally stopped lying to him and told him what the actual circumstances were. Not until then had he been aware that the victim had been on life support all along. There were more than 76 inaudible responses from him in the video following this revelation. Would the actual perpetrator be so noticeably overwhelmed and confused knowing the condition that he had left the victim in? The police tactics may have been legal but, did it produce the actual truth of the crime?

What went wrong? Sometimes a little known phenomenon takes place that Psychologists refer to as confirmation bias.

Wikipedia defines confirmation bias as a tendency to search for or interpret new information in a way that confirms one's preconceptions and avoids information and interpretations which contradict prior beliefs.

This type of bias is more commonly referred to as “tunnel vision” and applies to anyone who has horse “blinders” on so that they cannot see what is happening around them. It may sound a bit crude, but that is what takes place if there are not any reality checks and balances within an investigative agency.

Any one of the following causes may produce a miscarriage of justice.

1. Plea bargains which offer incentives for the innocent to plead guilty
2. Confirmation bias on the part of investigators and/or prosecutors
3. Inadequate or improper crime scene investigation
4. Mishandling of evidence
5. Contamination of evidence
6. Fabrication of evidence
7. Withholding of evidence
8. Destruction of evidence
9. Biased editing or manipulation of evidence
10. Faulty forensic tests
11. Poor identification by witnesses and/or victims
12. False confessions due to police pressure or psychological weakness
13. Overestimation or underestimation of the evidential value of expert testimony
14. Misdirection of a jury by a judge during trial
15. Misleading reports and testimony by the police
16. Perjured or tainted reports and testimony by police or forensic personnel
17. Perjured statements and testimony by the real guilty party or their accomplices
18. Perjured statements and testimony by the victims or friends.

Our analysis concludes that there are 15 of the above causes that pose a high probability of involvement in this case. If we are correct, that is an astonishing figure when only one of them might produce a miscarriage of justice.

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A young man’s life on the line. 
An account of the Westervelt trial

On June 20, 2008 we posted the first blog entry about the Erick Westervelt case. There is a link attached that connects to the Truth In Justice website. The link is a copy of a news article in a local Albany, NY, area publication; The Altamont Enterprise. This publication continually produced honest and responsible accounts of this case. We feel that their report entitled “A Young Man’s Life On The Line”, is a concise and accurate review of the Westervelt trial. The editor and staff were very objective in their reporting and reflect a true concern regarding justice in their community.

This news article is fairly short, whereas the actual trial transcript consists of three large volumes containing more than 1130 pages. After thorough evaluation, one conclusion has revealed the “spin” that the police and prosecutors developed for their theory and also utilized in their statements to the media. It makes for sensationalism that is not backed by actual facts.

The news report is an excellent brief for anyone with an interest in the case. We have attached another link of the same article below. We want to ensure that readers see it and gain a better understanding of some of the details in this case. Bear in mind that although we feel their reporting is accurate, there is much more to be learned when the whole transcript is evaluated. It all has to do with the amount of information that is provided about each testimony. A reader must have all of the available information to understand the whole picture in order to draw more accurate conclusions.


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Déjà Vu! 
It was absolutely destined to happen again. A confession in a major high profile murder case in Albany County again was not recorded. A young man was convicted of firing a hand gun in the direction of some youths and killed a young girl nearby. The entire case revolved around the suspect’s confession. Another tragic death and the Albany Police Department are still not equipped with audio and video recording equipment. An Albany detective testified at the Westervelt trial in 2004 that they had a "monitor" for viewing a person taking a polygraph test but it was not working when Erick was being tested. He was taken to another room where the police testified he wrote the confession that his whole case centered on.

He said he stopped the test because of entrapment; they said he was trying to defeat it.

He said he told them he wanted to leave; they said he didn’t ask to leave.

He said he kept asking for a lawyer; they said they “didn’t recall” him asking for a lawyer.

They claimed he said “OK, I did it”; He claimed he never said that.

They said his statement was voluntary; he said it was orchestrated and coerced.

In other words, there is completely opposing testimony between the detectives and Westervelt --- WHO is telling the truth?

If this “confession session” had been recorded, this case quite possibly would never have gone to trial. The same scenario may have been true for the most recent case. It was another unrecorded, “he said- they said” situation.

So what do you think happens next? Who is the jury going to believe? The police or the accused? Need we say anymore?

This kind of testimony is devastating to the defense of a possibly innocent person.

NOW the District Attorney is determined to take action.

Read the transcript:

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The new year . . . . . 
. . . . . is usually greeted with hope and great optimism in relation to the past. Since we began focusing on the Erick Westervelt case, we made a decision not to post or discuss very specific information about the victim that he was convicted of murdering. Doing so would not be an appropriate reminder for all of the relatives and friends that have been devastated by the loss of their loved one. As strongly as they feel that the right person was sent to prison for committing this crime, there is another side of this devastation that is just as compelling. The Westervelt family and friends have also suffered a loss of a loved one albeit he is still alive. The people close to his family are just as convinced of his innocence as the others are convinced of his guilt. It would take an extremely strong, objective individual to open his or her mind to this innocence possibility. Sometimes we just want to post all of the details that we see in this case. However, that would be irresponsible because it would create an unnecessary fire-storm and be counterproductive for the Westervelt’s to proceed forward in proving what they believe is the truth.

It would be absolutely unbelievable if someone from the crime victim’s side came forward to substantiate and support Erick’s plight. Sometimes strange things happen when an amount of time passes. Even uninvolved people have been known to come forward and offer vital information that might shed some light on what really happened.

There are so many unanswered questions and unsubstantiated facts in this case that we remain optimistic about someone out there knowing the real truth. We could make an appeal on behalf of Erick for that “someone” to come forward and place the pieces where they belong in this puzzle. Whatever the motivation would be for that individual to do so would not be for us here at NCJ to criticize or judge. In situations like this, it is always about the truth. Any information would be kept in extreme confidence and handled in accordance with our mission statement.

In keeping with these thoughts, we welcome the New Year and hope that someone can produce something meaningful for this young man.

Happy New Year Erick!

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What if the jury got it wrong! 
It would not be the first time and certainly not the last that problematic information was presented to a jury. The present criminal justice system in New York State is just now reacting to the extremely high wrongful conviction rate, which is currently the third highest in the country. There obviously needs to be much more stringent protocol for what is acceptable practices of prosecutors. They control what is presented to a grand jury. The main requirement is integrity and truth. Depending upon the political atmosphere within a jurisdiction, there could possibly be a lot of room for abuse of the actual facts going unchecked. Defense attorneys have always been at a disadvantage in defending the rights of the accused in the very first instance. An indictment by a grand jury is nothing more than reason to believe a crime has been committed and to move toward arguing the facts of a case at trial. The public assumes that the information provided to a secluded grand jury is indeed bonafide and accurate.

Unfortunately, an indictment has the stigma of an individual being guilty of something and then the news media has the opportunity to manipulate the available facts in such a way that locks in the stigma. So, if an arrest is made with minimal factual evidence and the prosecution does not thoroughly scrutinize the evidence, the snowball begins the journey downhill out of control. Even though the jury selection is carefully screened by both sides, people are exposed to enormous amounts of media reports. Obviously, the defense is looking for an intelligent recluse with no access to any media who be can be open minded and objective; wishful thinking. Even though there are safeguards in place regarding the integrity of a jury, there is always the problem of jurors being influenced by the personalities of the court room cast and overlooking what is factual.

If the individual arrested for committing a crime happens to be innocent, then another old cliché of being “guilty until proven innocent” kicks in. Then there becomes another case associated with, but separate from the original.

Erick Westervelt bears many scars of what can possibly go wrong in the New York State Criminal Justice system. There is strong reasoning to indicate that he has become another victim of a wrongful conviction due to these flaws in the system.

When is a jury going to hear his case? He has been incarcerated for four years and eleven weeks today.

Merry Christmas Erick!

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Back to the beginning; again and again!  
Our posting on October 7, 2008 was about starting at the beginning. Oddly enough, as the case history is reviewed over and over, we all keep going back to the haunting fact of Westervelt’s alibi. It was his only defense, simple as that. There is nothing else that confirms his whereabouts at the time of the crime other than the trial testimony of his mother and father. His brother, who was fifteen at the time, also maintains that Erick was at home watching the first baseball playoff game with him and his father. However, Erick’s brother did not testify in the trial. Was this whole family lying to protect Erick? Did the mother and father perjure themselves to protect their oldest son? A recent interview with the three of them by NCJ members revealed that their recollection of the day’s events on October 5, 2004 with regards to Erick’s presence is extremely vivid and convincing.

Then why didn’t the jury consider this testimony important? There are many subtle inferences that sway a jury. One being the fact that since the accused is sitting at the defense table, there are jurors that will think he must have done something wrong to get there in the first place. Another is, the police must have a good reason not to believe his alibi. Actually, in this case, according to Erick and his family, the police did absolutely nothing to investigate or verify the strength of his alibi. Could it be because it would have totally destroyed their theory and their case against him? The prosecutor then successfully neutralized Westervelt's only hope when he demeaned Erick's mother and father on the witness stand, thus discrediting the value of their testimony.

Think for a moment. What if they weren’t and are not lying now to protect Erick - where does that leave the rest of the case? Obviously, there would not have been a case against Erick Westervelt. There was nothing presented at trial to positively, beyond a reasonable doubt, place him or the supposed murder weapon at the crime scene. The prosecution’s case was a theory supported by their interpretation of several circumstantial events that took place prior to the crime. We feel that these events should have been interpreted more logically. We will address these specific events in a subsequent posting.

The big question now is - who is really telling the truth. If the family is being truthful, that means that someone else committed the crime. It also means that there has been perjured and or misleading testimony by members of law enforcement presented to the juries and the suppression hearing judge. As we pointed out earlier, after thoroughly scrutinizing this testimony, we found many instances of evasive, manipulative and questionable testimony. If this was the case, the actual facts appear to have been overshadowed by a dubious confession.

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Confession Is Good For The Soul. 
Not under certain circumstances.

Charles J. Ogletree, a Harvard law professor wrote a review in 1987 that expressed his views about the relationship of confessions and Miranda warnings. The Harvard law review was entitled:

Are Confessions Really Good For the Soul?: A Proposal To Mirandize Miranda:

Some excerpts from this paper are contained within an article in the Justice:Denied magazine in 2005.

One of the examples highlighted by the author and quoted here, mirrors the exact circumstance that Erick Westervelt found himself in. According to numerous instances throughout his entire contact with the police, he was read and signed off on his Miranda rights.

When a suspect is confronted by the police, whether on the street, at the police station, or at home, there appears to be an almost irresistible impulse to respond to the accusations, notwithstanding the Miranda warnings. In these settings, police may be accusatory, or appear to empathize with the suspect, or imply that cooperation is in the suspect’s best interest, or simply lie about the strength of the evidence against the suspect. Suspects generally hope that by responding they will in some way improve their position. Suspects, generally unprepared for the trickery or outright deceit the police may use, are often coerced into confessing or incriminating themselves once they have waived their rights and agreed to talk. Even those who initially invoke their right to silence and request the assistance of counsel face pressure to waive those rights.

The full article is here:

http://www.justicedenied.org/issue/issu ... ilure.html

An associated article is here:

http://www.justicedenied.org/issue/issu ... alive.html

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Where do we begin? At the beginning!  
There has been an incredible amount of information reviewed in this case so far that it makes your head spin. There are so many pieces that do not fit the puzzle that it is beyond belief. We have digested all of the available information at our disposal to date and have many more questions than answers. There is still a lot more information to locate and it will be time consuming trying to pick up the pieces four years after the commission of the crime.

The jury had a daunting task with what was presented to them. Our group at NCJ is not convinced beyond any reasonable doubt that the actual perpetrator of this crime was arrested and convicted. Nothing that the prosecution presented to the jury had solid factual foundation implicating Westervelt. It appears that the prosecution convinced the jury of Westervelt’s guilt, rather than prove it factually. There have been many cases that have resulted in wrongful convictions when the only, seemingly factual, thing the prosecution had, was a confession. The responsibility of going forward to prosecute a case lies with the District Attorney’s office. There should be careful consideration given to all of the facts and realistic views of the credible evidence.

We keep looking for the reasoning behind the investigative and prosecution process and always come up short. It is always easy to criticize someone’s actions after the fact (Monday Morning Quarterback Syndrome). We do not want to fall in to that pit. However, we are searching for what should be the “whole picture” during the investigation – starting at the beginning. We are looking for what other investigative leads were followed. There is no indication, so far, that anyone else was considered in committing this crime. If this was the case, it is a slippery slope not to pursue other angles and motivations. If Westervelt was the total focus of the investigation, there might have been some over-emphasis on getting him to confess. This is a natural first instinct of a human investigator in trying to solve a crime. Unfortunately, if there aren’t any checks and balances in place, the investigation becomes a runaway train.

The amount of interrogation and isolation time is critical in producing false confessions. It is a known fact that the longer that period is, the chances of a false confession is highly probable. Westervelt was, as noted in the trial testimony, subjected to an enormous amount of time alone with the criminal investigators.

Many states including the Federal Government are now actively engaging in scrutinizing cases of previously convicted people that resulted in wrongful convictions. They are finding questionable tactics employed by investigators and prosecutors that previously had been acceptable practice in obtaining convictions.

New York State recently convened a panel of notable people in the criminal justice system to evaluate the situation and to make recommendations where needed. Unfortunately, Erick Westervelt and most likely others in prison, are in a catch 22 situation; the task force is only looking at people who have already been exonerated.

Bar task force to study wrongful convictions in NY
New York: State Bar Takes on Wrongful Convictions
Newsday, June 4, 2008

The New York State Bar Association has decided to investigate the problem of wrongful convictions. The newly appointed president of the association, Bernice Leber, put together a task force of 22 “professors, former judges, prosecutors, defense attorneys and others to identify rules, procedures and statutes contributing to the problem.” According to Leber, “The task force will examine the process all along the line, from the innocent person’s arrest to interrogation of witnesses, the evidence collected, and everything that happens up to the moment of indictment.” Barry Kamins, past president of the New York City Bar Association, will chair the task force. NACDL Executive Director Norman L. Reimer has been appointed to serve on the task force. The goal will be to analyze every reported New York case statewide that led to a wrongful conviction and come up with a final report with proposed reforms. The report is due in April 2009.

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Conflicting Testimony 
One of Erick Westervelt’s complaints in the WRGB prison interview video was conflicting testimony of the people in Albany County law enforcement. Upon close examination we tend to agree with this assessment. There are some dubious answers, claims and conflicting testimony by some witnesses that should have been scrutinized for accuracy more thoroughly before the trial even began. There are many instances around the country where the prosecution has not acknowledged certain facts in a case. Whenever this takes place and spin fills in, the jury is denied accurate information.

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Expert Testimony 
In reviewing the trial transcripts, the defense team enlisted the aid of a local psychologist who has been doing research on false confessions. Dr. Allison Redlich, Delmar, NY, was prepared to enlighten and educate the jury about the reasons behind false confessions and draw a parallel in this case. However, the admission of most of her testimony was successfully compromised by the prosecutor. When admissible information is deficient on either side, the jury is not provided with essential information that would equate to a fair and impartial verdict.

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