Westervelt’s family:
"We know where he was that night"

GUILDERLAND — Not having your son return from college one day only to find out he has been interrogated by police and signed a confession to a murder he swears he did not commit may be a parent’s worst nightmare.

For John and Wendy Westervelt, this is a reality.

Their son Erick Westervelt is serving a 25-year-to-life sentence in the Clinton Correctional Facility for the murder of Timothy Gray. Westervelt continues to maintain his innocence while serving his sentence and his case is up for appeal later this summer.

Mr. and Mrs. Westervelt are both state workers and their Guilderland home is part of a quintessential suburban neighborhood.

Parked outside of that home is the car once driven by Erick Westervelt, a constant reminder of the tragedy that left their son behind bars and another man dead.

The Westervelts say they have lost all faith in the justice system. They provided alibis for Erick’s whereabouts the night of the murder. They say he was home, watching a ballgame on television with his father.
Both say it is "impossible" that their son committed the crime.
"This is not a story made for TV. This is real life, this is reality," Mrs. Westervelt said. "I feel scared for other people; They could take another innocent person"I thought our justice system was supposed to protect the innocent."
She went on, "I used to trust the justice system. I don’t anymore. I don’t trust the police."
"You can’t even sleep at night. In two years, I haven’t had a good night’s sleep," Mr. Westervelt said about his son’s conviction. "This thing goes over in my mind again and again"I think Erick became the sacrificial lamb. He became the scapegoat."
"He was here at 9:30 when that guy was getting beaten up," Mr. Westervelt concluded.

Gray was bludgeoned at his Delmar home in 2004 with what police said was a hatchet. He died five days later at Albany Medical Center Hospital. Gray and Erick Westervelt had dated the same woman, Jessica Domery, which police say was the motive for the murder.

"It’s devastating"
"I’ll never understand it," said Mrs. Westervelt. "I know where he was that night. You can’t be in two places at once"It’s devastating, really, because you can’t do anything about it."

Mr. and Mrs. Westervelt testified in court that their son was home that night, but say Bethlehem Police never took a written statement from them. The Westervelts also said they offered to take a polygraph test on their son’s whereabouts.
"His car made a noticeable noise; you would know when he left or came in," said Mr. Westervelt. "I always knew when he came in at night"I know that the investigators talked to some neighbors."

Mr. Westervelt said that, even though his son was convicted of sneaking up on Gray and hitting him in the back of the head with a hatchet, the physical evidence did not add up during the trial.
"Gray was a bigger guy and Erick didn’t have a mark on him, and he didn’t have any DNA on him or his car," said Mr. Westervelt. "From the autopsy photos, Gray had a lot of defensive wounds and looked like he put up a struggle."
Mr. Westervelt concluded that he doesn’t think someone "snuck up" on Gray, and that there may have been more than one person involved.
"There’s no way whoever did this to Gray got away untouched," he added.

The Westervelts also said the Peter Porco murder, which took place after Gray’s murder, may have affected their son’s investigation. The high-profile ax murder also took place in Delmar and was investigated by Bethlehem Police.

Christopher Porco was later convicted of murdering his father and attempting to murder his mother.
"It was five weeks later when that happened to Mr. and Mrs. Porco. The community was scared; I feel Erick was railroaded," said Mrs. Westervelt. "I know Erick had nothing to do with this"The worst part, is that, basically, the Bethlehem Police are publicly calling me and Mrs. Porco liars."

Joan Porco stood by her son throughout his trial, maintaining his innocence. She has no memory of the night of the murder.

The Westervelts firmly believe that Gray’s killer or killers got away with murder.
"This is the biggest injustice in upstate New York; you could be seeing history in the making," Mr. Westervelt said. "This stuff can’t happen in this country in this day and age. I would never want to see another family or another person go through this."

"No evidence"

Erick Westervelt’s younger brother, Jason, goes to Guilderland High School, and, like his older brother before him, is an active athlete at the school. He told The Enterprise his brother was convicted under false pretenses.
"The biggest thing was that there was no evidence linking him to anything"He voluntarily gave DNA and let them search his car. What guilty person would do that"" Jason Westervelt asked. "I don’t understand how you can convict someone on no evidence.
"I want people to see that an innocent person can be convicted of a crime without any evidence"It’s not something that’s out of the ordinary," said Jason Westervelt.

John, Wendy, and Jason Westervelt all say that Erick was home the evening Gray was fatally assaulted and that they either directly saw him or heard him yelling out Yankees’ scores throughout the evening.

They also contend that Erick Westervelt turned away several plea bargain agreements with the DA’s office, which, they say, is not the behavior of a guilty man.
The Albany County District Attorney’s Office said that motive, a weak alibi, and a signed confession was enough for the 12 jurors to "to make their own conclusion."

Assistant District Attorney David Rossi, who prosecuted the case, said Erick Westervelt was linked to the crime through searches recorded on the family’s computer prior to the murder.

During the trial Rossi painted the Westervelts’ alibi as simply trying to protect their son and he criticized them for not being more vocal in their son’s defense.
"We had several witnesses testify to establish that Erick was the only person home that day and the one who did the computer searches"That’s pretty close to physical evidence," Rossi said.

Mr. Westlervelt said they were told by their attorneys not to talk about the investigation.
"I couldn’t talk to the press; I couldn’t talk to anyone"It’s like suffocating. You want to scream and they just tell you to remain quiet," Mr. Westervelt said. Mr. and Mrs. Westervelt have spent $50,000 to date on their son’s defense.
The Westervelt’s called the computer evidence "a joke."
"They told him they ‘had him’ for looking on Google on our home computer," said Mrs. Westervelt. "We all had use of the computer and had it since 2001"Sometimes I’ll watch a television show and look up all sorts of things on the computer."
The Internet searches included topics such as "sharpening knives" and "murder."
"You can’t prove that he was home and you can’t prove that he wasn’t, so what are you left with"" asked Mr. Westervelt. "You can’t prove someone killed someone else because of something on a search engine"It was all a story."

The family’s computer along with several other pieces of equipment were taken from the Westervelt home during the police investigation. The computer and printer among other things were not returned, but, after inquiries by The Enterprise earlier this month, the Westervelts said some of the equipment was returned by the Bethlehem Police.
Mrs. Westervelt said the printer was given back, but that is was gutted and "only a shell."

Rossi told The Enterprise that, when trials end in conviction, equipment or personal property is often sealed and kept as evidence.
"We need to keep the evidence in case there is ever a retrial or future questions about the case," Rossi said. "If someone is found innocent or exonerated, we return their property."

"Trickery"

Mr. and Mrs. Westervelt say their son was forced into confessing a crime he never committed.
"They use trickery"They have a template for what they do," said Mr. Westervelt. "Erick thought that Tim had been in a fight and just wanted to go home. He didn’t know he was on life support."
It was the "trickery," but also being held for hours that led to his son’s confession, said Mr. Westervelt.
"They basically told him what to write and he started writing"who knows what state of mind he was in at the time," Mr. Westervelt told The Enterprise. "My nephew was in the Army. These people are trained to get a confession no matter what. By the time they’re done with you, you won’t know up from down."

Erick Westervelt was interrogated without a lawyer present.

Mr. Westervelt also pointed out that his son’s entire interrogation was videotaped, but that neither his polygraph test, which Erick Westervelt stopped half way through, nor his confession were videotaped.
"The big problem was the video"or lack of it," Mr. Westervelt said. "That statement made no sense whatsoever."

The Westervelts also questioned the makeup of the jury selected in Albany County.
"Three people on the jury were from Bethlehem; that was ludicrous"another one lived next to a Bethlehem cop," said Mr. Westervelt.

Mr. Westervelt said, to make matters worse, another juror who convicted his son works in his office and that he still sees her from time to time.
"The jury didn’t care at all. I looked over at them and people were looking at the ceiling and not even paying attention," said Jason Westervelt. "It seemed like the minute Erick walked into the courtroom, they already made their decision."

The jury was 12 jurors and two alternates and composed of seven men and seven women; about half middle-aged and half in their 20’s.

The Westervelts talk to Erick Westervelt every week by phone and said they try to visit him as much as possible.

They would not lie to protect him, they said.

What if he did kill Gray"
"If he’s involved, yes, I would be upset with him, but I would love him and wouldn’t lie about it," Mrs. Westervelt told The Enterprise. "No, I don’t think he was a part of it. I know where he was that night. I don’t think he would have put us through this if he was somehow involved."
Jason Westervelt, without hesitation, said, "I just wish more people knew what really happened. My brother told the truth"In my mind, he didn’t do it. Period. I know he’s innocent."
"We’re praying that he’s granted an appeal; that’s my big wish"At least granted a retrial," said Mrs. Westervelt.