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

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

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

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

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

Merry Christmas Erick!

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

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

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

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

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

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

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

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

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

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

The full article is here:

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

An associated article is here:

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

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

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

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

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

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

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

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

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

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

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

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About False Confessions.... 
The phenomena and research of false confessions has been the obsession of several notable people in the psychology world. Dr. Saul Kassin, professor of psychology at Williams College has done clinical research on this subject dating back to the 1980’s. He has written numerous books and papers about false confessions and is considered to be the most sought after expert regarding them. There are three main categories that individuals fall into when providing a false confession. In our view, Erick Westervelt’s behavior in this case could be classified to fit all of those categories. Rather than try to educate our readers in this blog, we will pass on a few websites that explain things in detail. The internet has many websites concerning this subject; just do a search.


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



http://www.poststar.com/articles/2008/1 ... 196911.txt

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Westervelt Case 
The interrogation process in this case was extremely coercive, but legal. However, police investigators are not trained experienced psychologists. There is evidence in the transcripts that the investigators may have encountered a perilous area of behavior on the part of their suspect that was unfamiliar to them. There are many documented circumstances of certain susceptible individuals providing false confessions under the right circumstances. Erick Westervelt appears to be a classic example of this type of individual. Here are some recent examples of proven false confessions. Unfortunately, in this case there is no DNA evidence to exonerate him.

http://www.law.northwestern.edu/wrongfu ... mmary.html

http://www.martytankleff.org/Gui/Conten ... Page=Home2

http://wrongfulconvictions.blogspot.com ... chive.html

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Westervelt Case 
Whenever a piece does not fit the puzzle, it must be scrutinized as to why. There are many pieces that do not fit into place in this case. Here are just a few.

1. The apparent time of the attack of the victim was most likely between 9:15 PM and 10:30 PM on October 5th, 2004, as secured by the testimony of two neighbors. The Westervelt family positively place him at home watching the first game of the baseball playoff series. This and other factors of that day were very vivid and easily remembered and yet they were never interviewed by authorities. During the trial the parents were labeled as liars by the prosecution with no evidence to support their claim.

2. All of the clothing and weapon that Westervelt confessed to throwing in a neighbor’s garbage can was found at his residence with no forensic evidence of the crime. There was no forensic evidence found in the suspect’s car either.

3. There was no DNA of the suspect found at the crime scene.

4. No witnesses positively placed the suspect in the area that day.

5. There was a note, typewritten in Italian, found at the crime scene. Westervelt offered an explanation in his confession that he created it at the Guilderland Library. This was never corroborated by the police.

6. The actual murder weapon was never scientifically proven or offered into evidence by the prosecution.

Here is an example of a wrongful conviction by neglecting the evidence…….

http://www.rockymountainnews.com/news/s ... m-masters/

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Westervelt Case 
We have come to some initial conclusions about this case. After reviewing the transcripts of the trial and interrogation videos, there are many questionable aspects about the investigative and judicial process of this crime. We also have not found any indication that any other investigative theories were pursued other than implicating Westervelt. He was the primary focus of the investigation. To our knowledge, the family was never interviewed by the police in order to prove or disprove Westervelt’s alibi. Also in the course of the trial, it became evident that the New York State Police Forensic Investigative Center was consulted on some aspects of the case, but not the most important one; the forensics of the theoretical murder weapon. The prosecution’s theory was just that – a theory - that was not supported by any physical evidence. Any investigative procedure must be objective. The professional and moral responsibility of law enforcement officers must be to prove someone is innocent as much as guilty. The same responsibility must be adhered to by the prosecutors.

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