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

Cornell wrongful-conviction clinic brings exonerated man to law school

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

By Rachel Stern • • October 5, 2010

Article from

For Steven Barnes, every day is a holiday.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Here is the Report On The Conviction Of Jeffrey Deskovic.

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

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

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

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

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

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

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

Yes, the police can legally lie to a suspect!

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

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Porco case going to Court of Appeals 

Christopher Porco and his attorney Terry Kindlon entering court in 2006.

September 21, 2010 - WNYT, Channel 13 - Albany, NY, By Chris Rooney

ALBANY – The case of Christopher Porco will be heard before the highest court in New York State.

Attorney Lee Kindlon says Judge Robert S. Smith of the District Court of Appeals in New York City granted the defense’s appeal.

Porco was convicted in 2006 of using an ax to kill his father, Peter Porco, and attempt to kill his mother, Joan Porco. The couple was found in their blood-soaked Bethlehem home in November 2004.

The defense appealed the conviction, saying the infamous head bob by Mrs. Porco should not have been allowed at trial. The prosecution had argued that in the moments after police arrived on the scene, Mrs. Porco, who had been severely injured, nodded her head in response to a question asking if the attacker had been her son.

The prosecution insists the head nod was not central to their case. The defense disagrees and the judge sided with them, saying the state Court of Appeals should hear the case.

“We are thrilled,” Kindlon said. “This is the big time.”

The Porco case was investigated, prosecuted and defended by all of the same people who were involved in the Westervelt case a few months prior. The only difference being, Porco was represented by the two senior partners of the Kindlon law firm, whereas, two recently hired, inexperienced members defended Westervelt. Neither of the junior lawyers had any prior involvement in a criminal defense case of this magnitude and both left the firm a short time later.

There has been a considerably large amount of financial resources available for the defense of the Porco case from the beginning. The Westervelt case defense ended after the first appeal due to lack of funds.

The majority of wrongful convictions are hopelessly in limbo because of the money required to hire private investigators and lawyers. It is an extremely complicated process to gather the necessary facts and present them to a court in order to overturn a travesty of justice.

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March for Freedom of Wrongful Convictions 2010 

On October 2, 2010, demonstrators are gathering in locations across America to raise awareness of wrongful convictions, spotlight the need for criminal justice reform, and support for a death penalty moratorium.

National Event Information

Demonstrations / events will take place at these locations:

If there is no event in your area, you can support this cause by:

Spreading the word about wrongful convictions and the need for criminal justice reform to your circle of friends, co-workers and acquaintances.

Sending an email, letter or calling your elected representatives to say that you are concerned about wrongful convictions and our justice system.

Demonstrations organized by grassroots volunteers representing these organizations:

Freedom March USA, Marching for Awareness of Wrongful Convictions

National Coalition for Criminal Justice Reform

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While I'm Waiting. 

ERICK WESTERVELT is waiting also, along with these people!

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“Just the facts, Ma’am” 
The old Dragnet TV program from the 1950’s starring Jack Webb as Detective Sgt. Joe Friday, was a popular weekly program.

While "Just the facts, ma'am" has come to be known as Dragnet's catchphrase, it was never actually uttered by Joe Friday. The closest lines were, "All we want are the facts, ma'am" and "All we know are the facts, ma'am".

Facts are what investigations are all about.

When a criminal investigative agency does not pay attention to, or accumulate the required facts in order to substantiate the accusations against an individual, it is a recipe for disaster.

Worse yet, is when that same agency also manipulates the facts in order to make an arrest and then continues to twist and massage the facts to justify their theory.

A graphic example of this procedure is often the theme of movies that depict a back woods cop, faced with a major crime that is beyond his capabilities to investigate properly.

In the movie My Cousin Vinny, the cop testifies at trial that the defendant stated to him, “I killed him!!!” However, the defendant’s actual intonation was much different upon uttering those words.

What really happened was when the cop accused the defendant of killing the clerk, the defendant replied in disbelief, “I killed him???”

This is a good example of twisting the facts by manipulating the expression or the phonetics.

In Erick Westervelt’s case, the detectives manipulated the writing of his statement and failed to corroborate any of the stories that he made up.

Westervelt claims that after two days and many hours of interrogation, he just wanted to go home. They kept telling him that it was just a fist fight and when he told them his story, he could go home. However, they kept manipulating the conversation by adding more information, yet at the same time, minimizing the victim’s injuries. They massaged things by saying, “You must have hit him with something other than just your fists because there was some cuts and blood”. Then they said, “Did you use something like a hatchet?” It all went downhill from there because Erick didn’t know the seriousness of the victim’s injuries.

Therefore, he concocted a tale about using a wooden souvenir tomahawk in response to them asking him if he used a hatchet.

Much like what the police did to Marty Tankleff, they lied and told Erick that they had eye witnesses and his fingerprints were found at the crime scene. Both individuals were convinced by detectives that they must have “blacked out” and committed the crime.

When someone is detained and interrogated for long periods of time, mental and physical fatigue sets in. Since the detectives control the situation, it becomes easier for them to manipulate the subject’s mind. Some individuals have a lower threshold of fatigue and succumb more quickly to the pressure. Before long, the subject will say and do anything with hopes of escaping that stressful environment.

Dr. Saul Kassin, Professor of Psychology at Williams College in Massachusetts, is considered an expert on police-induced, coerced confessions.

In Westervelt’s case, the manipulation continued even after he was being held for trial. The detectives seized the family’s home computer and proceeded to manipulate an erased Google search that none of the family made. At trial, Erick was accused of making the search in preparation to commit the crime.

The actual information contained in the search and associated websites, provided an extremely poor circumstantial possibility of a connection to the crime. That, along with extremely questionable eyewitness testimony was all that was offered because; after all, they had a signed false confession that, without a doubt, “proved” he was guilty.

“Where were the facts, Ma’am?”

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Life After Exoneration. 
Herman Atkins, Sr., and Calvin Johnson, Jr., spent a combined 27 years in prison for crimes they did not commit. Here, they describe the challenges faced by the exonerated after their release.

Read viewers comments on Innocence Project | Facebook.

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"There, but for the grace of God, goes John Bradford." 
According to Wikipedia, John Bradford (1510–1555) was a prebendary of St. Paul's. He was an English Reformer and martyr best remembered for his utterance, "'There, but for the grace of God, goes John Bradford." The words were uttered by Bradford while imprisoned in the Tower of London, when he saw a criminal on his way to execution.

Through the years, the phrase “There but for the grace of God, go I”, has been commonly used when referring to someone else's misfortune.

In 2007, two men were arrested and charged with a double homicide that took place in Troy, NY, in 2002. The foundation for the charges was based upon the statement of a “jailhouse snitch”.

On July 16, 2010, Rensselaer County Judge Robert Jacon agreed to dismiss an indictment against Terence Battiste and Bryan Berry in the deaths of Arica Lynn Schneider and Samuel Holley in light of doubts a recent DNA match has cast on the case.

Here are the newspaper articles that will provide the case information about how two innocent individuals almost paid the price for someone else’s crime.

In this case, these two "wrongfully charged" men, might have become "wrongfully convicted" men.

Now they can say, "There but for the grace of God (and DNA), go I"

What would the fate of these men been if the perpetrator’s DNA had not been discovered?

Needless to say, “The beat goes on”.

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Innocence Projects (Or Lack Thereof) 
There are a number of states around the country that have innocence projects, including New York. The projects are usually in the form of clinics established at law schools and staffed by volunteer law students under the supervision of law professors.

The intent is to have students gain skills in handling very difficult cases of wrongful convictions. These cases require an enormous amount of time and commitment, which usually is prohibitive to most law firms because of the lack of associated monetary resources. Some large firms have a pro bono department that provides relief to wrongly convicted inmates and in turn “gives back” to society.

There is no shortage of cases screaming for attention. Each project has its own guidelines and criteria for acceptance; most all require a level of indigence. The students also have to choose cases that indicate some element of success. Another consideration is accessibility to case information, thereby limiting the selection to the project’s close geographical area.

New York’s innocence projects are all located in the Metropolitan New York City area. Naturally, the cases that they handle are usually within that area. The exception is the Innocence Project, co-directed by Barry Scheck and Peter Neufeld in conjunction with The Benjamin N. Cardozo School of Law. Their criteria is restricted to DNA cases only and serves all states.

NCJ is proposing that some concerned reader(s) of this blog actually take the initiative to generate some interest within student bodies in upstate New York colleges and form an innocence project. Ideally, the project would be at a college that teaches law, however, there is nothing prohibiting a group of students investigating a claim of actual innocence and rallying behind their beliefs to bring meaningful attention to an inmate’s plight.

There are four law schools in upstate New York.

1. Albany Law School
2. Cornell Law School
3. Syracuse University College of Law
4. University at Buffalo Law School

Any one of these schools would be an excellent choice to organize an innocence project that would adopt and investigate the claims of injustice from upstate residents.

If this was to happen, then maybe Erick Westervelt’s claims of actual innocence would have a better chance of being acknowledged and dealt with. He has applied to several downstate projects to no avail. There is a long list of applicants ahead of him from that area.

Here are examples of what can be done when students are motivated.

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