Westervelt appealsClaims "trickery" by Bethlehem Police

ALBANY COUNTY — Saying that he was illegally arrested and calling his trial a farce, Erick Westervelt is appealing his second-degree murder conviction.
"After a trial verdict, it is very typical for an appeal to be heard," said David Rossi, the assistant district attorney of Albany County who prosecuted Westervelt. "I feel comfortable with our original case and conviction"I don’t think there were any mistakes made."

Rossi doesn’t believe an appeal or re-trial will be granted.

New York State has a three-tiered court system. Westervelt was convicted in the lowest-level court. Everyone has a right to appeal to the middle level, where a panel of judges reviews the earlier proceedings. The top court is selective in the cases it hears, choosing those that will set legal precedence.

Westervelt claims that the Bethlehem Police lied about his oral confession that he killed Timothy Gray, and says that he was arrested before signing a written statement.
"If you say someone supposedly confesses to something, you’ve got to have proof that they confessed to something before you can arrest them," Westervelt said. "Otherwise you could just be making something up"It’s not an issue of credibility; it’s an issue of fact."

Rossi told The Enterprise that Westervelt was not arrested illegally and said, "Erick Westervelt is only trying to get out of his conviction."

Westervelt’s appeal hinges on being able to prove that he did not give an oral confession before his written one while a videotape recording of his interrogation was off.
"Why would I sign a confession and then go through an entire trial without taking a deal if I were guilty"" Westervelt asked The Enterprise. Westervelt’s parents said their son "turned down several plea bargains," because he is not Gray’s killer.

Westervelt’s attorney, Kathy Manley, confirmed to The Enterprise that oral arguments have been requested and that the appeal will be heard this summer. Manley is a lawyer with the Albany firm Kindlon and Shanks which specializes in appellate work and criminal defense.

The Albany County District Attorney’s Office has appointed Assistant District Attorney Christopher Horn to the case and has said the appeal may not be heard until early fall. Horn specializes in appellate work for the county.
"Courts are very reluctant to say police are lying, even though everyone knows they lie quite frequently," Westervelt said about his upcoming appeal. "The burden of proof has shifted to me — who could have done this"
"You’re not innocent until proven guilty, you’re guilty until proven innocent," he concluded, cynical of the American justice system.

Revisiting the crime

Westervelt was convicted of fatally assaulting Timothy Gray with a hatchet in Gray’s Delmar home on the evening of Oct. 5, 2004. Gray, who was 28 at the time, died five days after the attack in Albany Medical Center Hospital from blunt trauma to his head and torso. Westervelt’s original charges of attempted murder, assault, and trespassing were changed to second-degree murder once Gray died.

Gray’s sister, Jennifer Gray, spoke out against Westervelt during his trial. After his conviction, she told The Enterprise she didn’t believe Westervelt would be granted an appeal.
"I don’t have faith that that would ever come to be," Gray said. "It’s like grasping at straws, but, it’s Erick’s right to do that. In the end, things will work out and Erick will get what he deserves."

Gray’s father, George, said at Westervelt’s sentencing that if it were not for his son’s tattoos, he would not have recognized Timothy in the hospital, he was beaten so badly. He held his son’s hand as he died, George Gray said.
George Gray described Westervelt as a "selfish, jealous, scheming, and manipulative person."

Bethlehem Police say Westervelt attacked Gray because he was jealous after his ex-girlfriend, Jessica Domery, got back together with Gray.

The prosecution said the murder was over a woman, Jessica Domery, who had jilted Westervelt and gone back to Gray.

Domery and Gray had dated for more than five years. Domery had dated Westervelt for fewer than six months in 2004 before moving back in with Gray.

Domery did not respond this spring to inquires from The Enteprise for an interview. In statements to police, Domery said she had a sexual relationship with Westervelt, and, when she broke it off, Westervelt began to harass her and Gray.

A neighbor, Kate Tyrrell, found Gray bleeding from the head and unresponsive at the 95A Elsmere Ave. apartment he shared with Domery. Tyrrell, who was an acquaintance of Domery, told police in a statement that she heard Domery’s dog, Rosie, barking early in the morning of Oct. 6, and went to investigate.
"I untangled the dog from patio furniture and picked her up. When I picked her up, she vomited blood," Tyrrell said in the statement. She called 911 when she found Gray, she said; after police and emergency medical technicians arrived, Tyrrell took Rosie home and washed the blood off of the dog.

Westervelt’s DNA does not match any of the DNA found at the crime scene by Bethlehem Police or State Police.

Although he said he was angry with Gray and had confronted him, Westervelt said he did not assault and kill him over Domery. He told The Enterprise in a prison interview that Bethlehem Police zeroed in on him because of his relationship with Domery and that police did not investigate other leads in the case.
Claiming he only met Gray once in person, Westervelt said he got into a "shoving match" with him prior to his death. Westervelt admited to leaving angry messages on Gray’s home telephone and his cellular phone because he believed Gray was abusive toward Domery — but says that’s as far as his contact went with Gray.

Although their relationship was brief, Westervelt claims he and Domery loved each other and Domery had brought up the subject of marriage and children. Westervelt said he did not know about the relationship between Domery and Gray until Valentine’s Day in 2004, when, after they got out of bed that morning, she found flowers and candy at the front door.
Domery asked Westervelt if he had given them to her. He responded, "No."
Westervelt contends that, if a proper investigation had been conducted, he would never have been convicted. Westervelt cited several "oversights" in the crime scene photographs such as: not collecting cigarette butts, not testing used wine glasses, and not making casts of footprints found outside.

"All the pieces fell together"

Lieutenant Thomas Heffernan of the Bethlehem Police responded by saying the police stand by their investigation.
"Our department conducted a thorough and proper investigation and presented a strong investigation to the DA’s office," Heffernan told The Enterprise.
Heffernan said he had no further comments on the investigation because "once it’s at this process, it’s turned over to the district attorney’s office and it’s out of our hands."

The Albany County District Attorney’s Office credited a signed confession and a motive of jealously for Westervelt’s conviction. No physical evidence linking Westervelt to the crime was brought forth during trial.
Rossi responded to Westervelt’s allegations of poor investigative practices by saying, "It wasn’t as if a glaring piece of evidence wasn’t collected from the scene." Rossi said that State Police processed the crime scene with Bethlehem Police.

Westervelt asserts otherwise, pointing to cigarette butts in crime-scene pictures that weren’t tested for DNA.

Rossi responded through The Enterprise, "Everyone involved in the investigation smoked cigarettes and the ones they found were old."

Westervelt smokes cigarettes, too, but he told The Enterprise that he smoked cigarettes with brown filters unlike the ones in the crime scene photos which had white filters.
Saying he was "forced" into a false confession, Westervelt asserts that the statements in his confession were "so ridiculous and fabricated that I never took it seriously." He said, "It was going to backfire and blow up in the people’s [Bethlehem Police] faces anyways."

Rossi said his office is pleased with the outcome.
"All the pieces fell together"We had a very strong case," Rossi said. "It was clear Erick was the one with the motive and he had the opportunity, and then he confessed"That means a lot to a jury."

Confession questioned
After two days of intense interrogation about his relationship with Domery and feuding with Gray, Westervelt said that he "just wanted to go home."
He was told by police that Gray was hitting Domery and that people would look at him as a "good guy who was standing up for her" if he confessed to assaulting Gray, Westervelt said.
"They basically were baiting me"They told me he was hitting her and I was pissed," Westervelt told The Enterprise.

Westervelt said he was not told until after he confessed about the severity of Gray’s injuries or, later, that he had died. He believed that Gray had only gotten into a fight with another person, Westervelt said.
"Basically, it was, if I wanted to go home, just say I started a fight with this guy and that was that"It would be over," Westervelt said. "So they told me to start writing this stuff"and I thought, ‘Who gives a shit" It never happened."
Westervelt said he "couldn’t believe it" when he discovered that Gray had died.
"I was in shock, basically I thought it was like a schoolyard fight kind of thing"now you tell me he’s on life support," Westervelt said.
During the trial the defense put a confession expert on the stand, testifying about false confessions, but the jury "didn’t buy it," said Rossi.
"When it does occur, it usually happens to very young people who are not well-educated," Rossi said of false confessions. "Erick Westervelt was an adult and he is very intelligent and did well in college"The usual factors involved in false confession were not here."

Westervelt had no lawyer at the time of his questioning and confession.
Westervelt and his parents maintain that he was "tricked" into signing the confession which is filled with "inconsistencies and outright lies." (See related story.)
"As far as I know, I’m the only one they really investigated," Westervelt said. "Nothing in this case added up"It was complete crap."
The Bethlehem Police videotaped most of the investigation, Westervelt said, but not his confession or the polygraph test taken before it. Westervelt said he consented to a polygraph at first, but then stopped the test after he "realized they were going to say I was lying no matter what."
"The defendant knew details of the crime scene that weren’t provided by police"such as where the victim’s body was and other details," Rossi said. "I don’t think for one minute the jury thought it was a false confession."

Lieutenant Heffernan agreed, saying that it is not uncommon for convicts to be critical of investigations when their cases are up for appeal.

After Westervelt was sentenced in 2005, one of his lawyers, Kent Sprotberry, told The Enterprise that Westervelt was misled into a confession.
"He was very frustrated. A big part of the trial was the trickery employed by the Bethlehem Police officers to befriend Erick Westervelt," Sprotberry said at the time. "They frequently were telling him she [Domery] was beaten up by this guy; they were not casting her well. He defended her, and it worked. He ended up saying what they wanted him to say — that he beat up Timothy Gray.
On the video tapes, Sprotberry said, the police "call it mutual crap." He reported the police saying, "We know it happens. Two guys get in a fight over a girl."
Sprotberry also said, "They never told him the person was dying. He thought he’d say, ‘Yeah, I got in a fight," and he could go home."

Asked, though, if Westervelt hadn’t confessed to beating Gray with a hatchet, Sprotberry said that police, towards the end, told Westervelt that Gray was hurt more than just with fists, so Westervelt tried to think of something hard that wouldn’t be harmful like a knife. He thought of the souvenir hatchet he’d had since he was a boy and named that, Sprotberry said.
"He was just trying to come up with something — not a knife that would really hurt," said Sprotberry.

As for getting out on parole, Sprotberry said Westervelt would need to be remorseful of his crime.
Sprotberry said it has been his experience that clients with an "upper-end sentence like 15, 20, 25 years to life" don’t usually get out on parole but "essentially serve a life sentence."
He said of Westervelt, "When he finally does get before a parole board, they like to see remorse. He’ll say, ‘I didn’t do it.’ I don’t expect him to ever make parole."

Porco murder

Kindlon and Shanks, lawyers who were critical of the Bethlehem police’s investigation in the highly publicized Porco trial, never publicly drew a connection to Westervelt’s case even though the two murders happened in the same town and were investigated by the same police detectives.
Gray was murdered in his Delmar home five weeks before Peter Porco was murdered and his wife, Joan, was viciously attacked in their Delmar home. Gray was bludgeoned with a hatchet, the Porcos with an ax. Because of the Porco murder, Westervelt says the district attorney and the Bethlehem Police were "pressured into finding a killer."
"They knew I didn’t do this," Westervelt said. "They dug themselves a hole and they couldn’t get out."

The Porcos’ son, Christopher, was convicted of murder and attempted murder and is also serving his sentence at Clinton Correctional Facility.

The law firm Kindlon and Shanks defended both Westervelt and Porco during their trials.
"Terry Kindlon was on TV every day, even before my trial, talking about this stuff and the Peter Porco situation"He was on there defending Christopher Porco and saying all of that stuff," Westervelt said. "Not once was he on TV defending me. Never."
Continuing, Westervelt said that, when Kindlon was telling reporters the Bethlehem Police did not properly handle the Porco murder investigation, "He never even threw my name in there."
"These people didn’t do nearly as much for me as they did for Porco," Westervelt said about the lawyers who worked on his trial.

Terry Kindlon and lawyers from Kindlon & Shanks law firm did not return repeated calls for comment.

John and Wendy Westervelt, Erick’s parents, heard over the news that Gray had died when they were coming back from Terry Kindlon’s office. They were also at his office, they said, when news of the Porco murder broke out.

Attorney Rossi praised both the Bethlehem Police’s investigation and the State Police Police’s forensic work.
"I know they’ve taken some criticism from the Kindlon and Shanks firm both in Erick’s case and a month later in the Christopher Porco investigation," Rossi said.
Rossi said of the lawyers criticizing police, "The verdicts reflected that they were wrong."