GUILDERLAND — It’s the best thing that has happened to her family since her son was accused of murder, said Wendy Stevenson Westervelt, referring to a new national TV show that has taken another look at the case.

Cable crime channel Investigation Discovery re-examined the evidence in Erick Westervelt’s trial and conviction in the second episode of its true-crime series, “Reasonable Doubt.”  The Westervelt episode aired May 3 at 10 p.m., and became available to watch online at IDGO.com May 4.

In each episode, “two investigators re-examine controversial murder cases to help the desperate families of those convicted decide if it’s time to appeal … or accept the guilty verdict once and for all,” according to the channel’s website.

The show is hosted by Chris Anderson, a retired Birmingham, Alabama police detective, and by Melissa Lewkowicz, a criminal defense attorney from Los Angeles.

Westervelt has been imprisoned since his 2004 arrest and through his 2005 conviction and his sentencing to 25 years to life for the bludgeoning death of Timothy Gray, the boyfriend of Westervelt’s former girlfriend, Jessica Domery. In June of 2004, Domery broke up with Westervelt to get back together with Gray. She had previously dated Gray for years, and lived with him, before meeting Westervelt.

Gray soon moved back into Domery’s house in Bethlehem, where the couple had previously lived. He and Westervelt had exchanged words and shoved one another outside the home in June, where Gray would be attacked four months later, in early October.

On the evening of Oct. 5, 2004, Gray suffered blunt-force trauma to his head and torso in an attack outside the home he shared with Domery, who was out of town. The next morning, Gray was found by a neighbor on the home’s front porch and taken to Albany Medical Center.

Westervelt was charged on Oct. 8 with attempted murder, assault, and trespassing. Gray died of his injuries on Oct. 10, and the charges against Westervelt were upgraded on Oct. 12 to murder.

“There were a lot of twists and turns in this episode,” Lewkowicz told The Enterprise.

“We weren’t sure what conclusion we were going to come to, until close to the very end,” said Anderson.

He said that visiting Westervelt in prison was a turning point for them.

“It’s very important, speaking to a person face to face. Watching somebody as they answer my questions helps me to read them a whole lot better,” he said.

Until the prison interview, Lewkowicz said, both of the hosts were on the fence.

The evidence

It should not have been an open-and-shut case, lasting just nine days from the start of the trial to the verdict, Wendy Westervelt said, if police had conducted an impartial and thorough investigation.

Erick Westervelt’s family says the police never looked into any alternative theories; they were interested only in him.

Westervelt had a motive, police argued: Gray had replaced him in Domery’s affections.

There was no physical or DNA evidence linking Westervelt to the crime.

What police did have was a confession, gained, Jason Westervelt said last week, “after at least 14, 15 hours of questioning.” Jason is Erick Westervelt’s 27-year-old brother; he is eight years younger than Erick.

Westervelt’s family says it was a false confession, obtained through trickery, misunderstanding, and police prompting.

Police did not tell Erick Westervelt that Gray was on life support, his brother said last week, and told Westervelt that, if only he would confess to having fought with Gray, he would be allowed to go home. Wendy Westervelt knows that police are allowed to lie to suspects, she said, which she thinks is wrong.

The police took seriously a statement that Westervelt had intended sarcastically, the family claims: When police told Westervelt that Gray had been hit with something other than fists, and asked him what that could have been, he named the souvenir hatchet that his mother had bought for him during a trip to Lake George when he was a child.  

“He was trying to think of the stupidest thing that he could ever use to hit somebody, and he came up with his wooden hatchet, which I had bought when he was 11 and Jason was 3,” Wendy Westervelt said.

But several of the wounds on Gray matched the curve of the small hatchet, police said.

“There are other objects that could make a mark like that,” Wendy Westervelt said, including the curve of a hammer or an ax.

Police tested Erick Westervelt’s souvenir and found no evidence on it, said Jason Westervelt last week. They then took away a similar souvenir hatchet that John Westervelt, Erick’s late father, had owned since his own childhood. They never tested that one, Wendy Westervelt said.

“They decided there must be a duplicate somewhere, and that that must be the murder weapon,” said Jason Westervelt. ”Although that duplicate doesn’t exist.”

Meanwhile, his family said, they had five or six hatchets and axes in the back shed that would “take down a tree,” but police never tested them. Neighbors who were moving away and downsizing gave the Westervelts the hatchets and axes along with other items, including all kinds of garden tools and even a rolltop desk.

Erick Westervelt had an alibi, but it was provided by his family, who all said that he was at home that night, watching a baseball game. Wendy, John, and Jason Westervelt all told police they remembered talking with him at various points throughout the evening, including at the time when Gray was being attacked.

Wendy Westervelt believes other people peopleshould have been investigated.

Asked about Wendy Westervelt’s claim that Bethlehem Police shouldn’t have lied to her son to get a confession, Commander Adam N. Hornick, spokesman for the department, said, “Technically, by law, they don’t have to tell him. There’s actually Supreme Court law decisions on the police ability to actually give them false information as well, although that’s not what happened in this case.

“They interviewed him; he confessed to the crime; the evidence was overwhelming in the case, and in fact he cooperated to the extent that he took detectives out the night he was arrested, looking for where he had dumped his clothes.” The clothes were never recovered, Hornick said.

Her son had been arraigned at that point and assigned an attorney, Wendy Westervelt said. “They’re not supposed to be taking him anywhere else, except to jail,” she said.

Hornick spoke of the “overwhelming amount” of evidence in the case and said one piece of evidence that was especially strong was a heartfelt letter of apology that Hornick wrote to Domery after his arrest, which was introduced as evidence.

“It’s easy to cast aspersions on what wasn’t done, as opposed to what is done,” said Hornick. “And when people are not poking holes in what is done, that’s where the prosecution’s case usually stands strong.”

Overshadowed?

The family believes that another murder that happened just five weeks after Gray’s overshadowed Erick Westervelt’s case.

Five weeks after Timothy Gray was attacked, Peter and Joan Porco were attacked in their home with an ax; Peter Porco was killed, and Joan Porco disfigured. Their son, Christopher Porco, was later tried and found guilty of murder and attempted murder; he is currently serving a sentence of 46 years to life. Porco also maintains he is innocent.

“They were all the same players,” said Wendy Westervelt, naming the Albany County District Attorney’s Office; Bethlehem Police; and Terence Kindlon’s office, hired as defense attorney in both cases. “We feel they focused everything on the Porco trial,” she said.

She is speculating, Wendy Westervelt admits, when she says she believes that the investigators and attorneys considered the Porco case more important because of who Peter Porco was; at the time of his death, he was serving as a law clerk for Judge Anthony Cardona of the state’s Appellate Division.

The Westervelts had hired well-known Albany defense attorney Terence Kindlon — or thought they had, Wendy Westervelt said; it turned out that Kindlon assigned two “very young associates,” Kent Sprotbery and Mark Sacco, to the case, Westervelt said.

Kindlon himself handled the Porco case. A grand jury was convened in November 2004 to hear evidence against Christopher Porco, although he was not indicted until a year later.

Following his retirement from private practice, Terence Kindlon now works at the Albany County Public Defender’s Office. Reached there by phone, he said, “I don’t know what she thought,” referring to Westervelt’s claim that she had expected to hire him rather than Sprotbery or Sacco.

Kindlon also said of Sprotbery and Sacco, “They are both very accomplished trial lawyers. This is a long time ago. I don’t have any comment. I don’t want to get involved in any kind of discussion of the case.”

Sprotbery, who now works in the New York State Attorney General’s office, did not return a call seeking comment.

After Erick Westervelt’s appeal, which was also handled by Kindlon’s office, Wendy Westervelt received most of the documents from the trial back from his office, she said. She does contend that Kindlon says he returned the police interrogation tapes to her but that she never received and has never seen them.

She said that, among the records returned to her from Kindlon’s office, was one relating instead to Christopher Porco’s case.

What it’s like now

Wendy and Jason Westervelt still live at the family’s home on Salvia Lane in Guilderland. Erick’s father, John Westervelt, died of breast cancer in 2012, four years after he was diagnosed.

Wendy Westervelt thinks “a lot of the stress contributed” to her husband’s illness and decline. “It didn’t help, let’s put it that way,” she said.

Westervelt was at Clinton Correctional Facility in Dannemora, until the escape of two prisoners, Richard Matt and David Sweat, in June 2015, the Westervelts said.

After the escape, Jason Westervelt said, his brother was pulled out of his cell, pushed up against the wall with a guard’s hand against his throat, and ordered to tell everything he knew or be killed.

He was threatened and interrogated over and over, the Westervelts said, and then transferred, about four days later, to Great Meadow in Washington County and then to Eastern Correctional, near Kingston, where he remains now.

He is on the Honor Block, as he was at Clinton, his mother said. He is currently working in the facility’s library.

Wendy Westervelt tries to visit him every four to six weeks, she said, although it’s hard to get there that often during the winter. The prison near Kingston is much closer and easier to get to than was the prison at Dannemora, she said.

“Unfortunately, no,” she said when asked if any of her son’s friends visit him.

“All his friends — it’s like, once he was convicted, they disappeared. They didn’t even go to his sentencing. These were guys who had testified for him. One of them was his best friend. That was really bad; they were friends since kindergarten,” Wendy Westervelt said.

Do his mother and brother ever allow themselves to entertain the possibility that he actually did it, they were asked last week. After all, they said at the time that
Domery was Erick Westervelt’s first real girlfriend; maybe he was a good person who just snapped.

“I would have thought, if that were the case,” Jason Westervelt said, “that that would have happened earlier, when he would have been most overwhelmed. The incident happened months after they broke up.”

Fears and hopes

Even as they count the years until Erick Westervelt has served his minimum sentence, his mother and brother say, they fear he will never be paroled, because he will never express remorse for a crime he says he didn’t commit.

To get parole, Jason Westervelt said, his brother would need to say that he killed Gray.

“The way he feels is, he won’t get parole, because he’s not going to say he did it,” said Jason Westervelt.

Would he rather die in prison, his family was asked.

“No, he’s hoping that he’s going to get out,” said Wendy Westervelt.

“Well, at this point, it seems to come to those two choices,” said Jason Westervelt. “I’ve been thinking about this for five years. I’ve had conversations with my brother. His answer is always, the only way you’re even going to get a chance to get out is to say you did something you didn’t do. If he doesn’t do that, A equals B, B equals C, he’s not going to get out.”

There could an appeal, or a reinvestigation, his mother interjected.

“Not unless the DA or the police decided to reopen the case, which won’t happen,” Jason Westervelt said flatly.

The State Police should have been called in from the start, Wendy Westervelt says. This was only the second murder Bethlehem Police had ever handled, she said; the first was about 20 years before.

“I’m hoping this will get the word out about Erick’s case,” Wendy Westervelt said of the show, “and what I would like to see hopefully is that either the Bethlehem Police or the district attorney’s office would reopen the case.”

“If it isn’t reopened, we would have to do an appeal and try to get another appeal,” she added.

In 2007, Erick Westervelt appealed his conviction.

“We were pretty hopeful, and then the decision came down at the beginning of 2008,” Wendy Westervelt recalled.

Still, she feels she has reason to be optimistic again, if the right person has seen the television show.

“Maybe somebody knows something, or has something on their conscience that they want to get off their conscience.”