…deriving from Old French puniss-, an extended form of the stem of punir "to punish," from Latin punire "inflict a penalty on, cause pain for some offense," earlier poenire, from poena "penalty, punishment of great loss".

It is all about the "W's".

Where does it begin and where does it end?
When does it begin and when does it end?
Who decides when and where?
Who decides when to end?
When is enough, enough?

Questions and more questions.

All of the above pertains to our criminal justice system and there is a definite problem with it.

The procedural beginning is relatively quick, decisive and easily accomplished. If the results of the foregoing procedure is a miscarriage of justice, it is not as clear cut, definitive or easily rectified.

People like Erick Westervelt fall into this problematic procedure.

It is much like when the cattle ranchers put there cows out to graze on the range. The first part is done relatively quick and easy. Rounding them up is a tedious procedure that takes a long time and may not be fully accomplished.

Attempting to undo a bad situation is never easy. Sometimes human predicaments can easily and quickly result in a seemingly hopeless situation and remain in limbo for many years

For Erick’s defense team, it has been an uphill struggle trying to get the correct sequence in place in order to have his wrongful conviction and punitive incarceration recognized and acknowledged.

NCJ is a small part of this process in trying to draw attention to his plight. Will the information provided on this website be instrumental in being of any benefit to him? Only time will tell.

An NCJ staff member recently reflected on another individual incarcerated in a NY facility. The inmate’s name is Mona Graves and she has been in prison for 21 years this Memorial Day (May 25th). Her situation is particularly sad and it fits the same pattern as Erick’s with regards to highly questionable prosecution, conviction and sentencing. Mona's Memorial Day has a whole different meaning as to who should not be forgotten.

Will Erick Westervelt suffer the same fate as Mona Graves?

Is this Criminal Justice System all about "Punitive Justice" rather than " Fair Justice"?

Here is Mona Grave’s information and plight:


http://www.courts.state.ny.us/library/q ... graves.pdf

http://nycourts.gov/library/queens/PDF_ ... aves_2.pdf

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Someone who cares 
There was a very interesting commentary published in the Albany Times Union today. Ray Kelly, a criminal defense lawyer in Albany, NY responded to the TU editorial that was also the subject of the NCJ blog entry two days ago on May 11. That entry addressed the newly formed Judicial Task Force on Wrongful Convictions, created by the new NY State Chief Justice Jonathan Lippman.

Attorney Ray Kelly is obviously a person of integrity and compassion with regards to his profession and humanity.

Attorney Ray Kelly is obviously Someone Who Cares.

It would behoove both Task Forces to interview criminal defense attorneys like Ray Kelly.

Hopefully, both Task Forces will consider Ray Kelly's suggestions for defense attorneys and apply the same standards to prosecution attorneys as well.

Meaningful and effective enforcement is as important as the attorney responsibilities.

The present procedure is totally inadequate.

NCJ has deep respect for all of the attorneys that value the integrity of their profession like Ray Kelly.

Please read his recommendations here:

A responsibility to offer the best defense

http://www.timesunion.com/AspStories/st ... yID=799672

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(Not so) Famous Case. 
Here is a case that should have been on the front page of every NY newspaper and the subject of numerous TV reports. Someone got it right and there is no fanfare.

Thanks to defense attorney Mark Gaylord, Schenectady, NY, and an unnamed DA’s investigator, a man is finally free pending further investigation.

Anthony Polite spent six months in the county jail awaiting trial for a crime he apparently did not commit.

Why is this information NOT reaching the public and drawing attention to the flaws in the NY State Criminal Justice System?

Why is this information NOT newsworthy?

How many wrongfully convicted and exonerated people can say they are NOT angry and frustrated about their situation?

Here is the ONLY mainstream media coverage of Anthony Polite's wrongful arrest and incarceration.

'Wrong man' can't stay bitter

http://www.timesunion.com/AspStories/st ... yID=798589

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What is wrong with this picture? 
At the beginning of the year, Governor Paterson appointed Jonathan Lippman as the new Chief Justice of New York State. One of his first acts was to form a Justice Task Force to study wrongful convictions.

This is the second “Task Force” created this year to investigate wrongful convictions in this state and make recommendations on how to prevent them in the future.

When is the first “Task Force” that would examine the existing cases of hundreds of incarcerated people who have not been exonerated yet, going to be formed?

Why is this dilemma continually falling through the cracks?

There is definitely something wrong with this picture!

http://archives.timesunion.com/mweb/wms ... id=8006682

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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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