A Tragedy of Errors 
Concerning human behavior and the law.

How do you determine an individual’s intent after the fact?

An investigator or criminal analyst carefully scrutinizes everything and wonders what the motivation was. You examine every possible scenario and explore all directions.

Would you come up with the correct answer?

Yes, if you pay attention to the facts.

First, let’s review the definition of a few words regarding human behavior.

Misconduct is a legal term meaning a wrongful, improper, or unlawful conduct motivated by premeditated or intentional purpose or by obstinate indifference to the consequences of one's acts.

Error is a deviation from accuracy or correctness.

Mistake is an error caused by a fault: the fault being misjudgment, carelessness, or forgetfulness.

Misbehavior is conduct that is inappropriate, improper, incorrect, or unexpected.

Now, you might be wondering about the direction we are headed in regarding these definitions. The direction does not pertain to Erick Westervelt’s behavior, but rather the conduct of the officials and representatives in his case.

We are going to deviate slightly to focus on definitions of two widely used phrases.

Official Misconduct is improper and/or illegal acts by a public official who violates his/her duty to follow the law and act on behalf of the public good. Often such conduct is under the guise or "color" of official authority.

Prosecutorial Misconduct is defined as a procedural defense via which a defendant may argue that they should not be held criminally liable for actions which may have broken the law, because the prosecution acted in an "inappropriate" or "unfair" manner. Such arguments may involve allegations that the prosecution withheld evidence or knowingly permitted false testimony.

Here is an exchange of views regarding this subject and also the integrity of prosecutors.

http://projects.publicintegrity.org/pm/ ... amp;aid=34

There is an interesting quote in the above article which is near the end, where the author quotes excerpts from the book, Doing Justice: A Prosecutor's Guide to Ethics and Civil Liability, by James E. Puntch Jr., an assistant district attorney from Sedgwick County (Wichita), Kansas. Here is that quote.

"Many of us have that moment in trial when we realize that we have acted inappropriately. Perhaps an objection was lodged that calls the action to our attention. Or we come to the realization on our own after some time for reflection. However a prosecutor learns that a mistake has been made, it is vital that a prosecutor act promptly and forthrightly. The worst thing is to do nothing and hope that no one discovers what happened. Cover-ups are almost always exposed. If it is discovered that the prosecutor knew of the inappropriate action and did nothing, it is almost guaranteed that not only might the conviction be reversed, but also the prosecutor may be facing lawyer discipline. In addition to those penalties, the prosecutor's reputation in the legal community will be damaged in a way that may be irreparable. It is much better to be known as someone who admits to ... errors than someone who tries to hide them."

Even though Westervelt’s Appellant’s Brief addressed some of the prosecutorial misconduct in his case, it was not thorough enough to include all of it. The Appellate Court was unpersuaded that the allegations constituted a reversible error. How they justified their interpretation is debatable. That is why there is a higher court; the Court of Appeals.

The Appellate Court acknowledged, but concluded that the trial Judge’s “error was harmless”; which is extremely debatable.

Official misconduct has never been addressed at all.

NCJ has identified evidence of misconduct, mistakes, errors and misbehavior during the entire process of the Westervelt case, yet we are always perplexed as to how and why the integrity of officials and representatives everywhere becomes compromised.

Here are two more informational links.

http://www.thejusticeproject.org/blog/p ... isconduct/

http://www.thejusticeproject.org/nation ... isconduct/

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The Appellate Court - 
does not try cases. They are concerned only with the lawful procedure of a case during a trial. It is not for them to decide which witnesses are being truthful or what case facts are accurate.

In the Westervelt case, the Appellate Court concluded that there was only one procedural error made during the trial. They also concluded that, “In light of the overwhelming proof of guilt, reversal is not required”, meaning they deemed the procedural error as inconsequential. That error was when the trial judge allowed Westervelt’s post arraignment apology letter to be entered into evidence. In other words, the jury should have never been allowed to read it. The manner in which it was presented was equivalent to the “icing on the cake” for the prosecution. Despite the "after the fact" ruling, the collateral damage that was inflicted is immeasurable.

The “overwhelming proof of guilt” that the Appellate Court refers to is the circumstantial theory that the prosecutor convinced the jury to believe.

Here are the Appellate Court documents filed in Erick Westervelt,s appeal process in an attempt to reverse the jury imposed guilty verdict.

Appellant's Brief [High speed connection]

Appellant's Brief [Low speed connection]

Respondent's Brief [High speed connection]

Respondent's Brief [Low speed connection]

Here is the Appellate Court’s decision which resulted in a denial of reversal.

Appellate Decision

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Blind Justice, or is Justice Blind? 
It was fortunate that Erick Westervelt’s case was not a death penalty case. The main reason for abolishing the death penalty in 15 states (including NY) was because of the high rate of wrongful convictions. The number of death sentences in the USA has decreased by 50% in recent years for the same reason. Now there is research being conducted regarding the extremely high cost of executions versus a life sentence. The advent and reliability of DNA evidence has been instrumental in the decline and reversal of capital punishment.

During the Westervelt investigation and trial there were many questionable things that took place and the defense team was virtually ineffective in either recognizing or counteracting the prosecution’s unrealistic and unsubstantiated theory. Therefore, the jury was at a disadvantage in evaluating the true merits of the case. As mentioned previously, Westervelt had three alibi witnesses; only two testified. Their testimony was not made as high a priority by the defense as it was by the prosecution. There was also the power of a “confession” to overcome. In this case, had the jury believed the alibi, they would have concluded that the “confession” had to have been false. The defense team also gets low marks for not being aggressive enough in disproving the claims made by the police. Remember, there were no recordings made of the most crucial aspect of the whole case; the “confession”. Yet, they knew the defendant’s side of the story, which was totally opposite of the police version. Did they believe their client? Not that they had to in order to defend him adequately; but it certainly helps.

Court room observers interviewed by NCJ noted that the prosecutor was much more flamboyant during the trial than the defense lawyers. Flamboyancy and/or passionate presentation equates to dominating the courtroom "stage", even in real life trials.

The following document is extremely interesting and the analytical information contained within does not pertain exclusively to death penalty cases. NCJ recognized many issues in this report that apply to the Westervelt case.

The Blind Justice Report.
by Richard C. Dieter,
Executive Director,
Death Penalty Information Center (DPIC)
Washington, DC


Here are other interesting reports from DPIC.


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He is guilty, because he said he did it! 
He is guilty because he said “Okay, I did it”. That is the premise that the prosecution proceeded forward with when building the case against Erick Westervelt.

During the trial, two Town of Bethlehem Police Detectives were questioned by Albany County ADA David Rossi, about the time period from when Erick halted the polygraph test and wrote a "confession". Here is their direct testimony.

Detective Charles Rudolph

Q. All right. And when you went back in the room to speak to Erick, tell the jury what happened.

A. We -- Detective Bowdish went in before me, pulled up a chair right next to Erick. Their knees were almost touching each other. They were that close. I stood behind Detective Bowdish and at that time Detective Bowdish said, if you want, now is a good time to get it off your chest.

Q. All right. And how did Erick respond to that?

A. He sunk back in his chair, let out a gasp of air and said, okay, I did it.

Detective Christopher Bowdish

Q. Tell the jury what happened when you went back into the room to talk to Erick.

A. At this point we explained to him that it would, he would be better off at this point if he told his side of the story, that the investigation was going to continue, and we felt as though we would like to hear his side of the story. At this point I saw him relax somewhat and he started telling us, yes, I did it.

Westervelt testified in his own defense at trial in regards to the exact same time period as above. He offers a much different scenario of what he says really took place. Here is his direct trial testimony when questioned by defense attorney Mark Sacco.

Erick Westervelt

Q. So at this point, what happened then?

A At that point I said, this is bullshit, you know, you are just telling me, you are going to tell me I'm lying no matter what. And at that point I said, I'm done with this, get this off of me. I started pulling at the apparatuses, you know, the stuff he put on the fingers. And I told him that I wanted a lawyer. And at that point he started saying, you are stopping the test because you are lying, you are a liar. And I kept saying, I want my lawyer, over and over again. And he stood there and he basically and he did nothing until he left. Then he went and got the detectives.

Q. How many times did you tell him, if you remember, you wanted a lawyer?

A. I told him at least four times.

Q. Did he take you to see a lawyer?

A. No, he did not.

Q. Did he bring a lawyer up to you?

A. No, he did not.

Q. What happened next, Erick?

A. I was sitting in that room for about a minute or so and then the Bethlehem detectives came in.

Q. What happened then?

A. They basically came in and I told them that I wanted a lawyer right now, over and over again, and I said it about seven or eight times, and they didn't do any-thing. They sat there. One stood. And they didn't say anything.

Q. Where were you?

A. I was sitting in the polygraph chair at that point.

Q. Then what happened?

A. Then they brought me into the next room, which was right next door to it and they began interrogating me again.

Q. Back up to the polygraph. Describe the room for me.

A. It was a very small room. It was about maybe 6, 7 feet by 10 or 11 feet, no windows, you know, there was a desk with the machine and a couple of chairs.

Q. How long were you in there with the two detectives initially?

A. In?

Q. In the polygraph room.

A. With the two detectives?

Q. Yes.

A. Maybe two to three minutes.

Q. And what happened during that two to three minutes?

A. I was demanding a lawyer.

Q. Did you talk to them?

A. No.

Q. Why didn’t you run?

A. Because I had nowhere to go.

Q. What could you have done at that moment?

A. At that moment, the only thing I could have done was keep cooperating with these people.

Q. Well, I’m not saying, my question is, what physically, what could you have done?

A. Nothing.

Q. What did you do next?

A. I basically listened to the same stuff they were saying the day before.

Q. What was that?

A. That Tim was accusing me of starting the fight with him, that it was no big deal, that, you know, everything, you know, wasn't that big of a problem at all, and that I had a right to do it, all this kind of, all the same things that they were saying the first day.

Q. Did you answer their questions?

A. Yes, I answered the same questions with the same answers.

Q. And what did you tell them.

A. I told them that I had nothing to do with what happened to Tim.

Q. How did they respond to your answers?

A. They didn't like it. They basically progressed with their interrogation.

Q. If you remember, did you ask for a lawyer in that room or at that time?

A. At that point, after they denied my rights seven or eight times, I didn't think that they could possibly comply with anything I would say.

Q. What were your options?

A. My only option was to try to answer their questions as best as I could.

After Erick’s lengthy testimony regarding the writing of the “confession”, the questioning continued as follows.

Q. After you initialed by the numbers, what did you do next?

A. I got up to leave, because I was told that when I was finished, I could go. And at that point, Detective Bowdish stood up and put his hand on my shoulder s and pushed me down in the seat and told me I wasn’t going anywhere.

Q. What did you do when he pushed you down in the seat?

A. I told him that I wanted a lawyer now and he didn’t say anything. So I said it again. And he told me that a lawyer wasn’t going to help me now, that I had to cooperate with them, that was the only way.

Q. When did you see a lawyer?

A. I never saw a lawyer.


The defense attorneys were adamant about revealing to the jury that Erick was continually denied the aid of counsel and offered up a false statement because of the hopeless, intimidating circumstances that he was in. Since there were no recording devices in place, it was his word against the detectives.

For What It's Worth Department:

Erick was equally adamant to NCJ investigators that he never uttered those words; “Okay, I did it”

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The inconsistencies matter. 
Whenever a police officer interviews a possible suspect, the experienced officer knows enough to pay attention to any inconsistencies in a person’s story. That is what he is looking for. Anytime a story changes or does not fall into a logical sequence of events, the officer makes note of it and pursues a line of questioning that either confirms or disproves the authenticity of the storyline. That is what experienced interviewers do.

Now, if someone is telling a story that contains inconsistencies and/or doubtful situations, the experienced officer would become aware that the suspect is probably fabricating the story. Then the officer would engage in a more confrontational line of questioning in order to figure out why the suspect is being deceptive.

On the other hand, if the officer is inexperienced and believes the story that the suspect is offering and/or it fits nicely into his theory, the actual truth is in jeopardy. Whatever the reason for overlooking or not acknowledging the obvious inconsistencies places the whole case in jeopardy. You might think that this is not a likely scenario, right? Then you would be absolutely wrong.

Upon reviewing the video that took place a few hours after Westervelt made his “confession”, it became obvious that the detectives were still trying to figure out what actually happened. They continually asked questions that indicated that they realized that Erick’s story did not fit with what they knew from the crime scene. There is no indication on their part that they ever tried to dispute any of the statements that Erick made. They expressed amazement to many of his replies to the questions that they asked him. In other words, they were extremely condescending to almost everything that Erick was telling them. They knew that the video recorder was on and recording every word, but they did nothing to confront or dispute the inconsistencies or questionable explanations that he offered.

Westervelt was not aware of the gravity of the situation at that time and the dialogue supports that fact. His explanation for his responses was that he had only been implicated in a fight with the victim and he was telling the detectives what they wanted to hear so he could go home. He was never told that he was under arrest, although it was implied. The actual charges were never mentioned up until that point either.

That may be a bit hard to comprehend, but it is exactly what has happened to many people who have been in a similar situation. After extensive hours of being prevented from leaving, until they gave “their” side of the story, they offer any type of story that they know is false and figure on proving it later. When an inexperienced officer does not realize that the psychological pressure inflicted on an individual produces a false confession and does nothing to prove or disprove it, the case is on a disastrous course.

Westervelt’s predicament appears to have followed that unfortunate sequence. After all of the “valuable” information had been extracted, he was finally told about the actual severe condition of the victim. The direction of the investigation was irreversible for him at that point and the resulting stigma was fueled by inaccurate media accounts.

Several highly experienced police investigators have reviewed these transcripts for NCJ. They have indicated that the lack of implementing proven tactical interviewing techniques interfered with correctly evaluating the inconsistencies in Westervelt’s “confession” and oral statements.

Did the detectives realize or care about what they did to Erick Westervelt? The chances of them acknowledging such behavior is doubtful, even though they probably would not face any discipline; assuming they did it unintentionally.

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There is no (equal) Justice! 
“There is no justice” was the title for a previous blog entry on February 16th. That entry was in reference to people like Erick Westervelt being wrongly convicted of a crime and sentenced to many years of incarceration. The title was actually inspired by one of our more experienced associates who was referring to another form of justice that Westervelt did not receive; "equal justice" - hence “There is no (equal) justice”.

By this, we are referring to criminal justice systems being radically different depending upon the geographical location. Identical crimes that are investigated and prosecuted differently obviously result in a different outcome. For instance, if Westervelt's daily activities had been investigated by a more experienced police agency, it is quite possible that he would never have been arrested. We have pointed out in previous entries that his involvement appears to have been a rush to judgment and building a case to fit a theory rather than the obvious facts. In doing so, the justice was not equal to what it may have been in a different jurisdiction.

NCJ has been constantly monitoring many cases in New York that are examples of this type of injustice where people receive much different treatment for similar crimes. What it all comes down to is; it depends upon who you are and where you are. This is nothing new; it is age old; it happens in every country in the world. Nevertheless, it is a constant problem and there are many variables in the equation. The government expertise, regional attitudes and sentencing vary immensely, depending upon where a crime took place.

If the crime that Westervelt had been accused of took place in a jurisdiction where the police agency had extensive investigative experience in major crimes, the case would have been handled much differently. The last homicide case in that particular jurisdiction was 13 years prior (1991) and was an “open and shut” case. It was not investigated by any of the detectives that were involved in the Westervelt case in 2004. In other words, this was the detectives’ first homicide investigation. Their next homicide investigation came 4 weeks later and their procedure followed the same pattern in that case also. That was the Porco case and the same investigators, prosecutors and defense attorneys were working on both cases at the same time. There has not been a homicide in that jurisdiction since.

Any police agency in New York State can request the State Police for assistance in any aspect of an investigation regardless of the severity of a crime. Even though the investigating police department requested assistance from the New York State Police, their involvement was minimal. Since the State Police were not in control of the crime scene, the evidence preservation, gathering and continuity left much to be desired in regards to professional standards.

It was also unfortunate for Erick Westervelt that Dr. Michael Baden, the world famous forensic pathologist was not involved in the autopsy evaluation. He was and still is, the Director of the New York State Police Medicolegal Investigation Unit. This prestigious investigative unit is located at the nearby New York State Police Headquarters Laboratory and Forensics Investigation Center in Albany, NY. Although the attending forensic pathologist is extremely competent, it would have been advantageous to have Dr. Baden involved. His expertise may have provided a more in-depth explanation of the actual commission of the crime.

Erick Westervelt would be extremely fortunate to have an innocence group adopt his case. Maybe they might be able to arrange for some experts to become aware of how he has been victimized in the name of “Justice”.

Equal or not!

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Honesty, arrogance or hubris? 
These are three words that have distinctively different meanings.

Honesty relates to being forthright, forthcoming, moral and with humility. It is a condition of being honest; to be truthful, or in other words, to be true as far as the knowledge of the person making the statement.

Arrogance is defined as making undue claims in an overbearing manner; that species of pride which consists in exorbitant claims of rank, dignity, estimation, or power, or which exalts the worth or importance of the person to an undue degree; proud contempt of others; lordliness; haughtiness; self-assumption; presumption.

Hubris is a nastier form of arrogance. Much like taking arrogance to the highest level and is defined in its modern usage as overconfident pride and arrogance; it is often associated with a lack of humility, not always with the lack of knowledge. An accusation of hubris often implies that suffering or punishment will follow, similar to the occasional pairing of hubris and nemesis in the Greek world. The proverb "pride goes before a fall" is thought to sum up the modern definition of hubris.

The reason we mention these words is because we are attempting to categorize the statements that the prosecutor of Erick’s case made to the press following the trial.

“I’m very pleased,” Assistant District Attorney David Rossi, who prosecuted the case, told The Enterprise after the verdict. “I think the Bethlehem Police Department did an outstanding job.”

“The jury didn’t accept that he was coerced into a confession,” Rossi said. He said he’s seen false-confession defenses before, but, “I’ve never seen it where the confession was written out and on video.”

The jury was most persuaded by Westervelt’s confession and the fact that he had a motive, Rossi said. The defense tried to convince the jury that Westervelt was interrogated in such a way that he made a false confession.

Of false confessions, Rossi asked, “Don’t...suspects ever lie just to lie?”

The Enterprise this week asked Assistant District Attorney David Rossi, who prosecuted, about DNA evidence in the Westervelt case. He said there was no DNA but experts from a lab said nothing was unusual with that. Rossi also said that Westervelt was familiar with forensic evidence and could hide things.

Rossi told The Enterprise this week that the toy hatchet from Lake George was not the murder weapon, but that it is similar to the hatchet they believe was used. And, he said, Westervelt confessed to using a similar hatchet.

After reviewing all of the known facts of this case, there are definite issues regarding the validity of these statements.

Therefore, is the prosecutor being honest, arrogant or hubristic?

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False confessions can sway a jury! 
We suspected early in our analysis why the Jury in the Westervelt trial disregarded or put little emphasis on the factual circumstances of the case. That in itself is an interesting point. The defense lawyers presented nothing but facts and reinforced the case facts throughout the entire trial. The prosecution offered no convincing forensic evidence other than the known case facts. They continually disregarded and discounted any facts that did not fit their theory and must have swayed the Jury to do the same. You might wonder, as we did, how this could have happened. How was a guilty verdict obtained?

Enter into the trial:

A false confession

An extremely poor video or no video

Untruthful and misleading testimony

A circumstantial, unsubstantiated prosecution theory

Now the picture begins to come into focus. We will discuss the first and most important reason, “A false confession” at this time. The others will be the subject of subsequent entries.

Research has shown that Juries everywhere are heavily influenced by confessions. It doesn’t seem to matter if it is a true one or a false one. Erick’s Jury was no different. We have to lean in that direction, because, there is no other logical reason why he was convicted. In past entries, it was pointed out that he more than likely gave a false confession. There are some confidential issues that we cannot elaborate on that support this analysis. However, based on that assumption, for all practical purposes, Erick Westervelt’s confession was not true.

We will present an ABC News article about “How A False Confession Can Sway A Jury”

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About wrongful convictions. 
In previous entries, we have mentioned that the Westervelt case appears to be a classic example of a wrongful conviction. Rather than reiterate the reasoning behind this conclusion, we will focus on how wrongful convictions occur. We have assembled links to several excellent websites that offer expanded views regarding this subject. Please take the time to evaluate this information and reflect upon what could possibly become the expected behavior of people working within the criminal justice system in future years.

Added information regarding the NYSBA Task Force on Wrongful Convictions.

http://www.queensda.org/newpressrelease ... 3_2009.pdf

http://www.queensda.org/newpressrelease ... 2013_1.pdf

Causes of wrongful convictions.


http://www.exonerate.org/facts/causes-o ... nvictions/

http://www.thejusticeproject.org/report ... -critical/

Government Misconduct.

http://www.innocenceproject.org/underst ... onduct.php

http://www.exonerate.org/facts/causes-o ... isconduct/



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“There is no justice!” 
“Nowhere to turn.”, “The wheels of justice turn slow.”, “No one is listening”, “Catch- 22 situation”, “No light at the end of the tunnel”.

These sayings and similar ones are uttered hundreds or perhaps thousands of times a day all over the world. Basically they all reflect a sense of despair. Most often they reflect the feelings of those who are incarcerated in a prison. Call it what you want; correctional facility, institution or detention center, it is still prison. They are not free, they are locked in a cell, they are caged, they are restricted, they are demoralized and live in constant fear of being raped. How long would it take them to return to a “normal” life after experiencing this kind of existence for a year or more? The possibility is most likely never.

Now, combine the anxiety of being in a prison for many years and being innocent. People in this situation are degraded to the point of hopelessness. Once convicted and sentenced for a crime that they did not commit, these people are waiting and praying for nothing less than a miracle. Because, that is exactly what it will take to set them free. There is absolutely no help or apathy afforded these people unless there is money to have lawyers working for years to set the record straight. The process is slower than slow and there are absolutely no guarantees that anything or anyone will convince a judge that they were wrongly convicted.

Lately, there has been a tiny thread of optimism beginning to spread throughout the country in the form of innocence projects and innocence commissions. More and more people are learning about wrongful convictions and what produces them. The reasons for wanting to know more about them are varied. Maybe it’s the enormous cost of incarceration or the advanced DNA technology that is exonerating the wrongly convicted. Whatever the reason, the innocent people locked in the prisons are not getting their hopes up. Even if New York State was to adopt an “innocence review board” of sorts, there is a long waiting line which promises to take years to sort through the massive buildup of cases.

Regardless, you have to start somewhere and the New York State Bar Association has undertaken a mission to investigate the causes of wrongful convictions. The NYSBA has been aware for a long time that the probability of a wrongful conviction in NY State is excessively high and actually increasing each year. Recently, they have been analyzing about 50 NY State cases of exonerated people who had been wrongfully convicted. The majority of these people had spent many years in prison before their "miracle" took place. About half of the cases were reversed by DNA analysis. Their intentions are to make recommendations to the NY State government on how to prevent wrongful convictions from occurring in the future.

Again, you have to start somewhere, but remember, “The wheels of justice turn slow” and people like Erick Westervelt are in a “Catch-22 situation” for the foreseeable future. Even if the State adopts the NYSBA recommendations and forms a “case review board”, who gets in line first? The person incarcerated the longest? Would it become a bureaucratic version of the Parole Board? Or will the program fizzle for some reason and never become the watchdog of the NY State Criminal Justice system.

Whatever happens, the incarcerated innocent victims of a crime will still have “Nowhere to turn” for quite some time before there is that faint glimmer of “Light at the end of the tunnel.” In the meantime, they will be hoping for that miracle to come along, Their families will continue to try and win the lottery in order to retain the best lawyers and NCJ will continue to attempt to muster the cavalry for those people in peril.

Unfortunately, irreversible psychological damage has been inflicted upon those wrongly convicted innocent victims and their families. Also unfortunately, very few of them rise above the social stigma associated with their long incarceration and a crime they did not commit. This problem should also be addressed in any overhaul of the system.

Of course, there will always be people maintaining that “No one is listening” and proclaiming that “There is no justice.”

The people at NCJ will remain optimistic. We will continue to have faith and endeavor to improve our criminal justice system.

Here is a link to the NYSBA website and information about the present program.

http://www.nysba.org/AM/Template.cfm?Se ... NTID=21310

Read the NYSBA Task Force’s Preliminary Report here.

http://www.nysba.org/Content/Navigation ... report.pdf

Here are “must read” links to recently exonerated people who were wrongly convicted for murders they did not commit.

http://blog.law.northwestern.edu/bluhm/ ... nvictions/

http://blog.law.northwestern.edu/bluhm/ ... nfessions/

http://www.exonerate.org/facts/causes-o ... nvictions/

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