Get convictions – get promoted! 
The annals of the judicial systems across the USA are full of these stories. The way to a judgeship is to have many conviction notches on your belt. Every law student knows the drill. Every prosecutor knows the simple facts. If you want to get ahead, go after the numbers.

This is no different than any corporate merit system. The bright, ambitious candidates get promoted, make more money, have more prestigious positions, cars, homes and social positions.

The problem with this scenario has always been that it sometimes comes with a price. An individual’s family is neglected, marriages are stressed and a trail of victims is left in the wake of a “ladder climber”. Ethics and moral values are sometimes compromised or forgotten. People are pushed aside and sacrificed in order to obtain goals. Heavy doses of rationalization are taken daily.

Regardless of how prosecutors view themselves, there is going to be collateral damage in overzealous prosecutions where the “numbers” and/or incompetence take precedent over justice.

The most recent infamous case of this was the 2006 prosecution of three innocent college students at Duke University by Mike Nifong, the District Attorney of Durham County, North Carolina. In prosecuting members of the lacrosse team for allegedly raping a black exotic dancer at a house party, Nifong pulled out all the stops on prosecutorial misconduct.

What was his motivation? Apparently it was to retain his elected office by garnering minority votes; it didn’t work. If it had, where might he be today rather than a disbarred former attorney with a criminal record? But, that is the risk that some achievers take.

For every Mike Nifong, there are many others who silently ascend the ladder with wrongful convictions as the rungs. However they justify convicting the wrong person is beyond belief when ethics and moral issues stand in the way.

There are always many issues in criminal cases. The more complex the crime, the more difficult it is to solve and prosecute. Especially if there is no physical evidence to directly connect a person to the crime.

As previously outlined, Erick Westervelt appears to have been swept into a complex situation that resulted in a flawed investigation and prosecution.

The prosecutor, ADA David Rossi, who cleverly manipulated facts during the Westervelt trial, has recently been promoted to the chief assistant district attorney of Albany County. ... mand/1973/

Curiously, Westervelt’s conviction is not included in Rossi’s successful major crime prosecutions.

Whether it is a coincidence or not, collateral damage is not something to brag about when climbing the ladder.

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Now that Westervelt’s new defense team has revealed that they have information that supports Erick’s innocence, a very disturbing question comes to mind.

If Erick did not commit the crime, then there is a strong likelihood that whoever offered perjured testimony in the case might be facing some serious legal problems in the future.

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Do You Want To Know A Secret? 
No, this is not about the Beatles song that was written by John Lennon over 40 years ago; it is about what has been revealed to NCJ recently.

A member of Westervelt’s new legal team advised NCJ that their investigation has developed new information that supports Erick’s innocence and that he did not commit the crime he was convicted of.

The Bethlehem Police and Albany County District Attorney have closed the Timothy Gray homicide case.

If this new information has merit, it could only mean embarrassment to them in the long term.

The real secret is:

Who killed Tim Gray?

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A Plea Of Innocence. 

In early April, 2008, WRGB-TV, (Ch 6), Schenectady, NY, presented a special TV report about the Westervelt case shortly after the New York State Appellate Court denied Erick's appeal.

TV reporter Ken Screven conducted a videotaped interview with Erick at the Clinton Correctional Facility in Dannemora, NY. During this interview, Erick appealed directly to the public for help and understanding regarding the miscarriage of justice that had taken place.

Here is "A Plea Of Innocence", which has been divided into five parts and preceded by an introductory newscast. ... ay/uploads

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Verdict: GUILTY – "Lock him up and throw away the key." 
Whether you read it in a newspaper or see it on TV, reports of misconduct by sworn public officials is behavior that no one wants to see or hear.

Unfortunately, misconduct often relates to human weakness and greed. Greed is not always directly related to money. There are many forms of weakness and greed. Sometimes it encompasses an individual’s need for self esteem and fulfillment. This translates to many facets of job performance that may include over emphasized self importance. In other words: “Hey everybody, look at me! See how great I am!”. It could simply be dereliction of duty attributed to laziness or incompetence. Or, it could be to enhance a work record in hopes of being rewarded with a promotion. Regardless of what the intentions are, this misguided behavior on the part of public officials most often inflicts disastrous consequences on others.

Recently, there was an Associated Press article distributed to major U.S. media outlets that told the story of official misconduct on the part of two NYPD police officers. Fortunately, there was some evidence in the case that exonerated the defendants before the “key was thrown away”.

The reasoning behind this unfortunate circumstance is still under investigation even though both officers have been arrested for their misconduct. Even more disturbing, is the thought of how many cases of official misconduct remain undetected.

In previous blog entries, NCJ has focused on and pointed out many disturbing events that took place in the investigation and prosecution of the Erick Westervelt case. Although not being specific, we have identified compelling evidence of misconduct on the part of several officials in the Westervelt case that needs to be investigated.

Hopefully, someone will step forward and initiate that process. We believe that it must begin soon. Erick’s “key” to the cell door has been lost for the past five years. It must be found before it gets thrown away.

Quote from the AP newspaper article:

The misconduct "strikes at the very heart of our system of justice and erodes public confidence in our courts," said Bronx District Attorney Robert Johnson.

Here is the link to the article. ... d_by_video

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…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: ... graves.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 ... 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 ... 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! ... 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. ... 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. ... isconduct/ ... isconduct/

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