Actual Innocence Justice Act of 2009 
On October 19, 2009, Senator Eric T. Schneiderman (D-Manhattan/Bronx), introduced bill number S6234 before the NYS Senate entitled the Actual Innocence Justice Act of 2009.

As of this time, there has been no significant action on the Senate bill or the counterpart Assembly bill A9430. Both bills are still in committee.

Interested parties should contact their respective state legislators and express their support for this important addition to the NYS Criminal Procedure Law.


Here are links to the information:

Senate bill:
http://open.nysenate.gov/legislation/ap ... bill/S6234

Press conference on the legislation:
http://www.nysenate.gov/press-release/s ... -bill-exon





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Another living nightmare is reversed. 
BUT, it took a lot of legal expertise, money and time.

Dewey Bozella did the time; all 26 years of it, for a murder that he did not commit.

Being incarcerated in a New York State prison, he had no money and no connections.

In 2007, he asked for help from the Innocence Project and got it.

Here is his story:

http://www.nytimes.com/2009/10/29/nyreg ... .html?_r=1

How many more Deweys’ are there in New York prisons?

Are they going to get the help that he got?

What is it going to take?


Mr. Bozella said that the lesson for others unfairly convicted was to pursue justice against all odds.

“If I’d given up, I wouldn’t be in the position I’m in now,” he said. "There were times I wanted to sit down and cry. I’d say, when does it end? When does it end? Today it finally ended.”






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At last, a ray of hope! 
On November 9, 2009, New York State Supreme Court Justice John Cataldo, New York County, Manhattan, rendered a decision in People vs. Bermudez. Judge Cataldo’s decision not only exonerated Fernando Bermudez and ended 18 years of confinement; it provides a ray of hope for wrongfully convicted inmates in New York State to have their case reviewed by the court based upon a claim of “actual innocence”. When Bermudez's attorneys filed their motion to vacate his sentence (NY CPL 440), they included section 440.10(1)(h), which encompasses an individual's rights under the federal and state constitutions.

This Supreme Court decision is of notable importance to non-DNA cases such as the Erick Westervelt case.

Among others, the NY Times published an excellent interpretation of the decision and is a must read for anyone interested in wrongful convictions.

Here is a link to the article.
http://www.nytimes.com/2009/11/23/nyreg ... cence.html

Judge Cataldo’s Decision:
http://www.nycourts.gov/reporter/3dseri ... _52302.htm

Actual Innocence:
http://topics.law.cornell.edu/wex/actual_innocence





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Beyond A Reasonable Doubt? 
In the previous entry we mentioned that Erick Westervelt’s attorneys presented Dr. Allison Redlich as an expert witness to testify about false confessions.

As knowledgeable as the doctor is on the subject, the prosecutor discredited her testimony at every turn. An interesting part was noted when she began explaining how false confessions are generated. Dr. Redlich brought a copy of the Reid Manual into the courtroom. Because of the prosecutor’s objections, the jury was not permitted to accept any testimony about it.

The Reid manual contains the detailed “nine steps” that are taught to investigators worldwide and is more commonly known as the Reid Technique. This method of interrogation, taught by instructors from the John Reid & Associates company in Chicago, is widely accepted and regarded by many police investigators as the “art of interrogation”.

Dr. Redlich apparently was trying to explain how the Reid Technique, not properly administered, can produce disastrous results and contribute to false confessions. This fact has been acknowledged by the psychology profession as well as criminal justice systems.

Even though some police investigators have not actually enrolled in the course, they can easily gain some knowledge of the interrogation procedure via the internet, books, television or from other officers. It is not clear if the detectives in the Westervelt case ever had any formal training in the Reid Technique, but there is evidence of some of the steps being used. One very key point of the technique as discussed in the course is:

Voluntariness of statement is established along with corroboration of details.

NCJ cannot find any indication or any testimony on the part of the detectives that they conclusively corroborated any of the details that Erick Westervelt provided to them in the written statement that they claim is his “confession” to the crime.

Of course, this was the “confession” that the jury believed to be true and was accepted at face value.


Here is an abstract and evaluation of the Reid Technique:

http://everything2.com/title/Reid+technique





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It Has Happened Again! 
TROY, NY – October 23, 2009. Following a month-long trial, a jury found Adrian Thomas guilty of murdering his 4 month old son.

Another jury in the Capital District did not believe the videotaped "confession" might have been coerced by the detectives.

During a Voir Dire session in a juryless courtroom, the defense presented Dr. Richard Ofshe, a sociology professor at the University of California, Berkeley, an expert witness on false confessions and police coercion. The prosecution presented counter-expert Paul Cassell, a University of Utah law professor. The judge sided with Professor Cassell and decided that Dr. Ofshe’s testimony would not be allowed, thereby denying another Capital District jury from understanding why people offer false confessions.

Dr. Ofshe has been instrumental in educating judges and juries about false confessions in many high profile murder cases throughout the country. In most of those cases, the defendant benefitted by a much more objective jury analysis of the “Confession Session”.

Professor Cassell has a strong conservative background and is a crime victim’s activist. He has also been involved in trying to overhaul the Miranda ruling and criminal justice system.

Regardless of how his views influenced NY Supreme Court Judge Andrew Ceresia in this case, the option for a jury to properly evaluate the possibility of a false confession was denied.

Thomas’s confession might have been deemed coerced and therefore eliminating the only possible link to the commission of the crime.

Erick Westervelt was also denied the jury’s education about false confessions. Psychologist, Dr. Allison Redlich, the expert witness in his trial was allowed to testify but unfortunately, her lack of experience in this field and testifying on the subject, proved to have been a poor choice by the defense. As indicated in the trial transcripts, none of her allowed testimony was significant and efforts to be so were thwarted at every move by the prosecution. The result was totally counterproductive in proving that Westervelt’s statements were coerced into producing a false confession and apology.

Therefore, he was also denied the opportunity for a “confession educated” jury to evaluate the reliability and veracity of his written statement in order to eliminate the police connecting him to the commission of the crime.




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Too Late For Some. 
The previous entry is a welcome start in the right direction in determining false confessions that could materialize into wrongful convictions in the future. The NY State Bar Association has recognized the need for eliminating false confessions that result from aggressive and misleading police interviews. However, for Erick Westervelt and many others, there is NO logical recourse for prior cases. Presently, there is NO one with any authority to do anything except the District Attorney's office that prosecuted the case.

NCJ is not a legal firm representing Erick Westervelt. We are merely a “justice” oriented group of individuals familiar with the NY State Criminal Justice System. In previous blog entries, we have pointed out the obvious mistakes that contributed to his conviction and incarceration. There are several more serious events that were noted, but cannot reveal publicly, that are also known by Westervelt's defense team.

Westervelt was audio and video recorded during interviews at the Town of Bethlehem Police Department Squad Room. The videos were mediocre at best and the audio was less than acceptable with numerous inaudible responses from Westervelt. There were also serious continuity problems when the cassette tapes ran out and were not quickly replaced. Yet, the jury was led by the prosecution to interpret them as “confessions” of a guilty man. Like many typical situations, there is another side of the story that can be interpreted and explained from a different view.

On an interesting note, grant money has been made available for numerous police agencies throughout the state and the Capital district EXCEPT the City of Albany. The Albany Police Department has continually rebuffed any attempt to equip their interview rooms with recording equipment.

It was at the Albany South Police Station where Westervelt was interrogated for many more hours. He supposedly “willingly” signed a written confession regarding having a fist fight with the victim that subsequently implicated him in the commission of the crime of murder. He claims that numerous requests to contact a lawyer were denied and went unrecorded by the detectives.

The result of the interview at that time was:

CASE CLOSED





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News Flash 
NY Bar Association: Videos expected to reduce false confessions

By Michael Virtanen, Associated Press Writer

Saturday, October 10, 2009 12:45 PM EDT

ALBANY, NY -- Concerned that aggressive, accusatory questioning can drive some innocents to confess crimes they didn't commit, the New York Bar Association has funneled grants for video equipment to four counties where police have begun recording interrogations.

The pilot project's goal is to ensure the reliability of evidence and prevent false confessions.

A recent study by an association task force found that false confessions had contributed to 12 wrongful convictions, later overturned.

The task force of lawyers, judges, prosecutors and scholars said confessions are persuasive in court and widely regarded as clear proof of guilt. Jurors, the groups said, commonly believe that an innocent person would never confess to a crime he did not commit.

While New York law requires corroborating evidence to support confessions, which are supposed to be voluntary, the report said that is apparently not always enough.

The group urged mandatory electronic recording of entire felony interrogations to help determine whether confessions are reliable, saying that should also reduce false claims of police coercion or dishonesty.

"Juveniles, the mentally disabled and the mentally ill — all particularly susceptible to aggressive interrogation techniques — account for a high percentage of the documented cases of false confessions," the task force reported.

While police often believe they can tell whether a suspect is being truthful, research shows they "are no more accurate in detecting deception than the average person," the report said.

The report noted one 1996 psychological experiment with college students who were told that hitting a particular computer key would cause a malfunction. They didn't know the computer was programmed to shut down automatically, regardless of what they did.

Interrogated afterward, and presented with fabricated "eyewitness" testimony, 69 percent confessed they caused the malfunction, even though they had not. Nearly 1 in 3 were convinced of their own guilt.

Dr. Saul Kassin, a psychology professor at John Jay College of Criminal Justice, said false confessions were involved in about 50 of the more than 200 overturned convictions tracked by the Innocence Project, a legal aid group. In the Annual Review of Law and Social Science, he wrote in 2008 that documented cases in studies "represent the tip of the iceberg the size of which is unknown."

"What is particularly amazing is that innocent people seldom invoke their Miranda rights and lawyer up, precisely because they are innocent and feel like they have nothing to hide," Kassin told The Associated Press. He calls videotaping a progressive step.

So far, 12 states and the District of Columbia require recordings. In New York, authorities in roughly half of the state's 62 counties voluntarily record some interrogations. Legislation in Albany to mandate recording failed to advance.

Westchester County District Attorney Janet DiFiore is using a $50,000 grant from the bar association to buy recording equipment for seven municipal police departments. Her investigators and several other departments previously got the equipment.

Association grants also went to Greene, Schenectady and Broome counties.

In Schenectady County, city and town departments with interview rooms began taping felony interrogations in 2008. District Attorney Robert Carney said the system is working well.

It provides "the best evidence," he said, of what was said during the interrogation and protects against the possibility police aren't reporting what happened accurately.

Carney said he has had to deal with false confessions too. One, several years ago, involved a homicide suspect, later cleared by investigators, who had agreed with suggestions made by his interrogators.

"It was just a weak-minded kid," he said.

Carney said, however, that he doubts false confessions are a significant factor in wrongful convictions.

In 2006, the state Division of Criminal Justice Services awarded $1.15 million to 23 counties, including all those in New York City, for recording equipment. It gave another $385,000 this year to 18 counties.

Deputy Secretary Denise O'Donnell, who heads the agency, said the use of video equipment is growing, but a mandate to record all interrogations would be expensive to implement.

Statistically, the number of wrongful convictions linked to false confessions is minuscule, she said, although, though even one is "a travesty."





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Five Years Ago Today 
October 8, 2004 - DELMAR, NY – Erick Westervelt was arrested for assaulting Timothy Gray. According to the police, the attack took place sometime around 10:15 PM three days prior on October 5th. Gray was so severely wounded with multiple head injuries that he laid unconscious and undetected on the patio at the rear of his apartment. A neighbor discovered him around 1:00 PM on October 6th and called police.

The severity of the skull fractures was indicative of blunt force trauma that was inflicted by a heavy dull instrument. Similarly, he suffered a broken right arm that may have also been the result of the same instrument.

For the past two days, Westervelt had been interrogated by detectives from the Bethlehem, NY police department. They focused on him as the prime suspect within a few hours after Gray was discovered. They proceeded to conduct an extremely flawed investigation that implicated Westervelt as the attacker. The “rush to judgment” blindsided the detectives so severely, that they failed to corroborate any of the “red flag” indicators that stood in their way of solving the crime. In other words, if something did not fit in with their theory, it was not thoroughly checked out and subsequently disregarded.

The detectives constructed a case against Westervelt that was totally unsubstantiated and the prosecutor convinced the jury that his false confession was the binding evidence. Not even the elements in his false confession were corroborated.

Much to Westervelt’s disadvantage was the fact that the detectives totally disregarded his one and only defense; his alibi. The Westervelt family all maintained that Erick was at home at the time of the crime. Not one detective even took the time to check out the possibility that he was in fact there.

Also to Westervelt’s disadvantage was being represented by an inexperienced defense team that was totally ineffective during the most crucial times of his trial.

Perhaps his alibi will be confirmed someday because absolutely nothing positively connects him to the commission of the crime.

In the meantime, five years later, he is still incarcerated and wondering if his innocence will ever be proven. That will only happen if the crime is ever solved or if there is some new and compelling evidence produced by his current defense team.

It is unlikely the case will ever be revisited by the authorities who have closed it upon his conviction.





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New York’s Fiscal Crisis. 
New York State, like every other state, is diligently addressing the current economic distress and exploring all avenues to cut budgets and expenses in all departments. Now is the time that someone involved in the process should have the perception to realize that there is an enormous amount of unnecessary expenditures within the Department of Corrections.

It is a well known fact that there are many wrongfully incarcerated victims behind prison walls. One might wonder about the millions of dollars that could be saved if a Wrongful Convictions Review Board was established within the criminal justice system. A review board could take a much closer look at eligible cases and recommend remedial action that judges should take on cases referred by the board.

Of course, a review board would only be effective if it remained unbiased and objective in its mission to possibly provide relief for an innocent person. Facilitating an easier approach for these cases would most likely result in releasing more inmates while their case is being retried or the verdict vacated. Hence, lower cost of inmate housing.

Presently, wrongfully incarcerated people spend years locked up with no way of paying lawyers to prepare the overlooked facts of their case. When a case is appealed or a motion to vacate is brought before a judge, quite often there is case law that can be interpreted by a judge to deny rather than acknowledge the favorable case law presented by the defendant.

Judges have a standard to maintain. That standard fluctuates depending upon the “atmosphere of the times”. History reveals the cyclical changes that take place over a period of years. There are periods of liberal judicial decisions that swing radically to the hard line position in response to the law and order political climate.

Regardless of the political atmosphere, the injustice to the people, whether they are the wrongfully convicted inmates or the taxpaying citizens, is inevitable. For every wrongful conviction, there is a huge price to be paid.

In that respect, we are all victims of wrongful convictions.




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Confession Mentality. 
There are many things that transpire behind the curtain of a live theatrical performance that the audience is totally unaware of. The same applies to live TV shows and musical concerts. Political posturing involves subliminal conduct that sometimes becomes shocking to the public when revealed. Many people don’t know or care about what goes on behind the scenes or closed doors as long as it doesn’t negatively, impact them.

The staff at NCJ have many collective years of experience within the NYS criminal justice system. We all know the day to day mechanism that moves cases toward resolution. All sworn officials are bound by law and oath to carry out their designated procedures in criminal cases. There are many checks and balances that insure that those procedures are adhered to legally, morally and ethically.

Now, when the checks and balances are lacking, due to any number of reasons, a case does not take the normal “approved” course. In other words, some behind the scenes behavior becomes skewed and is rationalized as acceptable procedure. The attitudes of some officials play a large role in this “justified” form of conduct.

This brings us to a little known attitude of some police officers and prosecutors that the public is basically unaware of. For lack of an official name for this condition, we will call it the “Confession Mentality”. This can be described as “get a confession at all costs”, because a confession is all that is needed to convince a jury that an individual is guilty.

A confession is deemed by some police officers as all they need to solve a case. Some prosecutors feel that a confession is all they need to get a guilty verdict. A confession is their main concern with little or no emphasis on facts. Quite often,the facts are manipulated to fit a theory that coincides with a coerced confession.

Many changes are slowly taking place in criminal justice systems, with more emphasis being placed on the justice part. With the accuracy of DNA evidence, we are realizing that a “confession” in many cases, without any supporting evidence, is and has been, useless. Yet, to this day the Confession Mentality is still alive and well as long as a good story is added to support it.

Erick Westervelt’s alleged voluntary admissions in the Timothy Gray homicide investigation appears to have fallen into the scope of every aspect of the Confession Mentality. This attitude leaves no allowance for anything remotely resembling an error like a false confession. Therefore, it is highly unlikely that anyone involved in applying the Confession Mentality in Westervelt's case, would admit that they did anything wrong.





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