June 30, 2005

A crime of passion: Westervelt convicted for hatchet murder

By Nicole Fay Barr

ALBANY — Erick Westervelt, who just last fall was studying at the University at Albany and aspiring to be a police officer, was convicted Wednesday afternoon of second-degree murder.

After a week-and-a-half trial and one full day of deliberation at the Albany County Courthouse, a jury handed down the guilty verdict. The 12 people were convinced that, using a hatchet, the 23-year-old Guilderland man beat Timothy Gray so severely in the head at his Bethlehem home that Gray died a few days later.

Although Westervelt left behind no DNA evidence, he did write and sign a confession. Prosecutors say he also had a motive: his ex-girlfriend had left him for Gray. (See related trial story.)

On Aug. 25, Westervelt will be sentenced by Judge Joseph C. Teresi.

“I’m very pleased,” Assistant District Attorney David Rossi, who prosecuted the case, told The Enterprise after the verdict. “I think the Bethlehem Police Department did an outstanding job.”

“I respect the jury,” Mark Sacco, Westervelt’s attorney, said in response. “But, my client maintains his innocence that he didn’t do it. The proof is not there; there’s no forensics or eyewitnesses. He’s got an alibi.”

The jury was most persuaded by Westervelt’s confession and the fact that he had a motive, Rossi said. The defense tried to convince the jury that Westervelt was interrogated in such a way that he made a false confession.

“The jury didn’t accept that he was coerced into a confession,” Rossi said. He said he’s seen false-confession defenses before, but, “I’ve never seen it where the confession was written out and on video.”

Westervelt will appeal, Sacco said. “There are significant appellate issues in the case.”

Sacco alluded to another brutal murder in Bethlehem that occured soon after Gray’s; Peter Porco was bludgeoned to death in his home and his wife was severely injured. Sacco said that the same unknown assailant had committed both the Gray and Porco murders. No one has been charged in the Porco case.

Asked about Westervelt’s reaction to the verdict, Sacco said, “He’s devastated, of course. He’s facing 25 years to life for something he didn’t do.”

Westervelt’s family, too, is taking the verdict hard, Sacco said. His parents, his brother, his three aunts, and some of his friends were in the courtroom when the verdict was read.

It’s a horrible fate for a boy who has never been in trouble, Sacco said.

A young man’s life on the line

By Nicole Fay Barr

ALBANY — The story that unfolded in the Albany County Courthouse this week was one of sharp contrasts: Was 23-year-old Erick Westervelt a brutal murderer who bludgeoned a man with a hatchet and left him to die, or was he a gentle, peace-loving man wrongly accused of a heinous crime?

The prosecution painted a picture of a man who did computer research on murder and sharpening knives before using a hatchet, similar to a boyhood souvenir hatchet that had hung on his bedroom wall, to commit the crime.

This is what the jury ultimately believed. (See related story.)

But, the defense presented witnesses who said Westervelt was home the night of the crime and that his confession, forced by police, was a false one.

Westervelt’s three best friends, the four Guilderland High School graduates inseparable since elementary school, said he’s the nicest, most peaceful person they’ve ever known.

Westervelt’s mother said her son is a good man, who had a little trouble getting over a breakup. She recalled a happier time years ago when, at Lake George, she bought her son a wooden toy hatchet.

His father said Westervelt was with him on the night of Oct. 5 and that he wouldn’t lie for him.

Attorneys Kent Sprotberry and Mark Sacco used all of this Friday to try to convince a jury that Westervelt, of Guilderland, did not do what he is accused of. They say he did not beat Timothy Gray so severely with a hatchet that the man died of head injuries days later. They say that, although Westervelt’s former girlfriend, Jessica Domery, left him for Gray, Westervelt did not kill the man on Oct. 5 in his Bethlehem home.

Westervelt himself also testified that he was home the entire day of Oct. 5 and that he was over Domery.

Sacco said Wednesday, after the jury handed down a guilty verdict, that Westervelt will appeal.

Judge Joseph C. Teresi presided as the defense on Friday called its key witnesses to the stand. After Westervelt’s parents and friends was perhaps the most important witness to the defense — Dr. Allison Redlich. Her testimony was meant to cast doubt on Westervelt’s signed confession to the murder.

The psychologist testified about her research of false confessions. Sprotberry later told The Enterprise that, although Westervelt told police he committed the crime, “He didn’t do it. It was a false confession. That’s what she [Redlich] explained to the jury. It’s newly-developed evidence of false confessions.

“He was at home; his parents told the jury that,” Sprotberry said. “There are no forensics to put him there.”

The Enterprise this week asked Assistant District Attorney David Rossi, who prosecuted, about DNA evidence in the Westervelt case. He said there was no DNA but experts from a lab said nothing was unusual with that. Rossi also said that Westervelt was familiar with forensic evidence and could hide things.

Friday, Sprotberry told The Enterprise he wanted it to be clear that he doesn’t think the Bethlehem Police tricked Westervelt or forced him to confess. They used common techniques to get a suspect to confess. They pushed hard and Westervelt “cracked,” Sprotberry told The Enterprise.

“But, they can’t prove Erick was at the scene,” he said.

Asked who else would have the motive to kill Gray, Sprotberry said, “I have no idea who did it.” Referring to the prosecution, he said, “The people haven’t followed up with that; they haven’t found who did it.”

Rossi spent most of Friday trying to punch holes in the defense’s claims. He asked how Westervelt’s parents could remember everything about Oct. 5, but nothing about the day before. Perhaps it was too long ago, he said. He asked the parents if they would lie for their son.

Rossi had witnesses describe an earlier confrontation between Westervelt and Gray; they fought over Domery.

Of false confessions, Rossi asked, “Don’t...suspects ever lie just to lie?”

Terrible night

Late on the night of Oct. 5, Bethlehem Police told The Enterprise last fall, someone went to Timothy Gray’s house, at 95A Elsmere Ave., and beat him in the head and face with a hatchet. The suspect then repeatedly kicked Gray when he was on the ground, police say.

More than 12 hours after Gray was attacked, he was found by a neighbor; he was lying on his porch, said Lieutenant Thomas Heffernan.

Gray, 28, was semi-conscious and suffering from severe skull and facial fractures and from trauma to his torso, Heffernan said. Gray was taken to a hospital where he died five days later.

Before Gray died, police began trying to find the perpetrator of the assault.

“After interviewing several neighbors and a couple of people who lived at the house, but weren’t home at the time...it led us to Westervelt,” Heffernan told The Enterprise soon after the arrest.

Police believed that, since Domery left Westervelt for Gray and Westervelt had fought with Gray at the house earlier, Westervelt assaulted Gray on Oct. 5. Domery, who was sharing her home with Gray, was out of town at the time of the assault, police say.

On Oct. 8, Westervelt, then a senior at the University at Albany, was charged with second-degree attempted murder, first-degree assault, and trespassing.

Gray died Oct. 10 and, on Oct. 12, Westervelt was arraigned on second-degree murder charges.

At the trial Friday, about 15 people, either Gray’s relatives or friends, sat on the right side of the courtroom. His sister, Jennifer, sat in the front row, intently listening to the testimony.

As pictures of the crime scene were shown on a large screen — photos of Gray’s sandals found near the porch or splattered blood on a frog garden ornament — some members of Gray’s family quietly wept.

On the left side of the courtroom were about eight of Westervelt’s relatives and friends. His friends, wearing suits and short haircuts, looked just as clean-cut as he.

They, too, leaned forward to listen to witnesses. When witnesses paused to consider a question, the bystanders seemed to be holding their breath. Only the quiet buzz of an air conditioner in the grand courtroom could be heard.

Meanwhile, a jury of seven men and seven women — 12 plus two alternates — about half middle-aged and half in their 20’s, listened.

Alibi?

Friday afternoon, Westervelt’s mother, Wendy, took the stand. As Sacco displayed a picture of the family’s large, white house with a perfectly-manicured lawn — at 659 Salvia Lane in Guilderland — Wendy Westervelt described the inside of the house.

Then, with a series of step-by-step questions, Sacco asked Westervelt to describe what she did on Oct. 5.

She said she arrived at her job, at the state’s Department of Civil Service, at 8:40 a.m. She stopped for gas on the way home and arrived at her house at 5:15 p.m., she said.

Erick Westervelt’s car was in the driveway, his mother said, and she heard him lifting weights in the basement as she walked past the cellar door.

Wendy Westervelt then described, minute by minute, changing her clothes, checking the mail, using her computer, eating a pasta dinner, and watching the vice presidential debate on television.

She saw her son at 7:10 p.m., at 7:40 p.m., at 10:30 p.m., and again at about 11:20 p.m., she said. Wendy Westervelt said she saw her son one last time, just before midnight, when she walked past his room to say goodnight.

When Rossi cross-examined Wendy Westervelt, she was less open to providing information. The prosecutor asked her similar questions about her activities on Oct. 4.

She didn’t remember what time she got home from work that day, Wendy Westervelt said, and she didn’t remember what she ate for dinner.

She said she bought groceries that day, but, when asked, said she didn’t remember what any of them were.

“That’s a long time ago; I don’t know,” Westervelt said.

Rossi countered that this was only one day prior to Oct. 5, where she recalled every move she made.

At another point, she described her son playing a video game in his room.

“What time was that?” Rossi asked.

“Eight?” Westervelt said, in a questioning tone.

“Are you asking me or telling me?” Rossi asked.

“I’m telling you,” Westervelt said, through gritted teeth.

Sacco objected, asking the relevance of all of these questions. Judge Teresi overruled the objection.

Both Sacco and Rossi asked Wendy Westervelt to describe Oct. 9, when the Bethlehem Police came to search her home. Police were looking for a wood hatchet, she said.

“They asked me five or six times and I told them Erick was home,” that night, Westervelt said.

“Did you ever call the DA’s office and say that?” the prosecutor asked. If his child was with him and was then accused of murder, Rossi said he would have called the district attorney’s office.

“Did you stand on a mountaintop and say, ‘He was home’?” Rossi asked.

“No, I didn’t,” Westervelt said.

After this, John Westervelt, Erick’s father, took the stand. Sacco also asked him to describe the events of Oct. 5. John Westervelt said he saw his son several times that night, and had watched part of a Yankees game with him.

Almost exactly as his wife had said, John Westervelt said he went to bed at 11:20 p.m., and, at 11:40, Erick Westervelt stuck his head into his parents’ bedroom and reported the final score of the game.

“Did you discuss the case with your wife before coming here?” asked Rossi. “The events of that night, her memories and yours, the times?”

“She’s talked to me before about things, but I didn’t know exactly what she was going to say,” John Westervelt said.

“Do you know what times your wife saw Erick that night?” Rossi asked.

“I don’t know. I wasn’t there,” John Westervelt said.

“But, your son is on trial for murder, sir,” Rossi said. “Did you discuss the alibi?”

“No,” Westervelt said.

Later, Rossi asked, “Do you care about your son? Do you care enough to lie for him?”

“No,” Westervelt said.

Toy hatchet

Sacco also questioned Wendy Westervelt about a wooden toy hatchet she bought for her son, when he was 11 years old. The hatchet hung on Erick Westervelt’s bedroom wall for years, his mother said, and she last saw it about two years ago.

She described a trip to Lake George she took with her sons, Erick and his younger brother, Jason. The three rode the ship, The Mini-ha-ha, and then Wendy Westervelt bought her older son the hatchet, she said. Since Jason Westervelt was three years old at the time and not old enough to play with a hatchet, his mother bought him a whistle, she said.

Taking the hatchet out of a brown paper “evidence” bag, Sacco asked Westervelt to describe it. Holding the item, she said it was about 12 to 14 inches long, made of solid wood, with the hatchet part measuring about five or six inches.

During the trial, it was stated that police had asked about several hatchets in the Westervelt household, but focused on this toy hatchet. It was a piece of wood, in the shape of a hatchet, with souvenir-type writing on it, but no visible blood stains.

The hatchet was taken from the Westervelt home when police searched it after the crime.

Rossi told The Enterprise this week that the toy hatchet from Lake George was not the murder weapon, but that it is similar to the hatchet they believe was used. And, he said, Westervelt confessed to using a similar hatchet.

Sacco responded, through The Enterprise, that, during Westervelt’s interrogation, police asked him what he would have assaulted Gray with, if he wanted to beat him. Westervelt talked about his toy hatchet, he said.

Computer search

Computer records also came into question during the trial. A Bethlehem investigator testified that he had searched Westervelt’s computer and found that, on Sept. 9, someone typed the word “murder” into a search engine.

“How to sharpen a knife” was also found to have been researched that day and Rossi placed the computer printouts of these searches on a large screen.

Sprotberry asked the investigator if there were any way to determine if Erick Westervelt had typed these words into the computer. He said there wasn’t.

The prosecutor countered, “Is there any evidence that someone from outside hacked into that computer?”

The investigator said, “No.”

Sprotberry then questioned the date of the search. A computer’s clock can be changed to make a search look like it happened before or after it did, he said.

One computer in the Westervelt house, which is located in Wendy and John Westervelt’s bedroom, is hooked up to the Internet, Wendy Westervelt said.

Sacco asked Wendy Westervelt if she ever searched murder stories. She had, she said, researching articles on a sniper that struck the Washington, D.C. area in 2002.

Rossi later asked Westervelt if she came home from work on Sept. 9 to do an Internet search. She said she did not.

He asked if she had adjusted the clock ever, by more than a few minutes. She said she had not. He asked if the time on her computer was kept accurately.

“As far as I know,” Westervelt said.

Rossi later asked John Westervelt if he had ever done a computer search on murder. He said he had not.

Relationship and character

Wendy Westervelt said that she had never met Jessica Domery, but her son talked about the young woman. They began dating in December of 2003 and broke up in June of 2004.

“How did he handle the breakup?” asked Sacco.

“Not very well,” Wendy Westervelt said. “He was moody. He would keep to himself a lot.”

To vent his frustrations, her son would play basketball and lift weights often, she said.

Answering Sacco’s questions, Wendy Westervelt said that, after her son encountered Domery on July 8 of last year, he became depressed and “was drinking a bit.” The family went to a wedding and Domery was supposed to be Erick Westervelt’s date.

In August, Wendy Westervelt said, her son was still depressed, but things got better. In September, she said, he was better still.

“So, when he was depressed over Jessica, he’d shoot hoops, lift weights?” Rossi asked.

“Yes, and he’d throw darts,” Wendy Westervelt said.

“Like on Oct. 5?” Rossi asked.

Westervelt said this was different, because her son had music playing that day.

After Westervelt’s parents testified, the man’s three friends took the stand. Seth Knupp, Justin Wittig, and Ajay Dhar each said they had been friends with Erick Westervelt since elementary school.

Each of the college graduates wore suits and appeared nervous; Knupp and Wittig were sweating.

Sprotberry asked all three about Westervelt, “Are you familiar with his reputation for peacefulness in the community?”

All three answered that they were and said Westervelt has always been a quiet, gentle person. Their friend warms up after getting to know someone and is then very friendly and considerate, they said.

Rossi asked Knupp and Wittig if they were aware that Westervelt had assaulted officers while in jail.

They said they had heard something about it.

False confessions

Friday afternoon, Dr. Allison Redlich took the stand for the defense. She is a psychologist from Delmar who has studied and written about false confessions for 13 years.

It can be proven that a person made a false confession in four ways, Redlich said. The first way is through DNA, she said, if another person’s DNA is found at the scene and the accused person’s is not.

Second, she said, is if the true perpetrator confesses or is otherwise apprehended. Third is if the crime didn’t occur. Redlich cited a case in China where a person was executed for murder and it was later found that the suspect’s alleged victim was still alive.

The last way is if it is physically impossible for a person to have committed the crime. For example, Redlich said, if the person was in jail at the time or if they have a solid alibi.

Redlich said she knows of at least 160 false confessions that have been discovered. This doesn’t mean that there aren’t many more, she said.

The most famous case is that of the Central Park jogger, she said. In 1989, a woman was raped and murdered in New York City. Police apprehended five teenagers who confessed to being involved in the crime.

They were convicted only on their confessions, Redlich said, and they served time in prison. Thirteen years later, she said, a man confessed to raping and killing the jogger. His DNA matched a sample on a pair of socks taken at the scene; none of the five who were convicted had DNA at the scene, she said.

To understand false confessions, Redlich said, one has to believe that most confessions are true. Research shows that 50 to 60 percent of people accused of crimes confess, she said.

Why this many? Because police have special techniques to get people to confess, Redlich said.

First, officers may isolate a suspect and make them uncomfortable. Police put the suspect in a small, windowless room that is usually very hot, she said. The suspect is in an uncomfortable chair, she said.

“It’s a stressful situation by design,” Redlich said.

Next, she said, the suspect is confronted in a “guilt-presumptive process.”

“I’m not saying that cops are mean,” Redlich said. “They really believe the suspect is guilty.”

But, she said, police often use something called confirmation bias. That is, they only seek out information that confirms the suspect is guilty. They discount denials or other information that may be inconsistent with the data they have, she said.

After confronting the suspect, telling him that they know he is guilty, police may then befriend the suspect, Redlich said. They may shift the blame from the suspect or tell him that they know the crime was an accident, she said.

“It creates a situation where it’s easier to confess to something if you’re not as accountable,” Redlich said.

Police may also refuse to listen to any denials. After trying to deny the crime dozens of times, the suspect begins to feel that asserting his innocence is hopeless, she said.

“It creates a situation of such utter despair and hopelessness that you must confess to get yourself away from the situation,” Redlich said.

“Police may say, ‘I have an eyewitness who saw you there or your DNA will be found in the car...I can only help you if you confess,’” she said.

The suspect knows his DNA can’t be found at the scene and thinks justice will prevail, Redlich said. So, he confesses to get himself out of the uncomfortable interrogation, which may have lasted several hours.

In the cross-examination, Rossi asked Redlich, “Do you think suspects ever lie just to lie or is it always the cops’ fault?”

“Oh no,” Redlich said. “That’s why I said most confessions are true.”

Of the Central Park jogger case, Rossi asked, didn’t the prosecutor know the DNA at the scene didn’t match the five suspects, but the jury accepted they were involved in the crime.

In 1989, DNA evidence wasn’t as accepted as it is now, Redlich said. There is also a myth that people don’t make false confessions, she said.

Rossi asked Redlich if she were aware that the man who later confessed to killing the jogger told other inmates that he had the five suspects help him.

“I don’t know,” Redlich said.

“And this case is the cornerstone of false confession?” Rossi asked.

“I wouldn’t call it a cornerstone,” Redlich said. “It’s a famous case.”

“What if someone provides details to police that police didn’t give them and those details are true — does that give you any indication of false confession?” Rossi asked.

“I’d have to see it with my own eyes and hear it with my own ears,” Redlich said.

Rossi then had Redlich describe how she researched false confessions. She did one study where she had a group of people in a room with computers. She told them not hit the “alt” key because, if they did, the computer would crash.

Redlich then had the volunteers hit a series of keys on the computer, avoiding the alt key. Then, without their knowledge, she made the computers crash.

Although no one hit the alt key, Redlich said, 26 percent of the volunteers said they probably did. They made false confessions, she said.

Rossi asked if Redlich had cameras directly above the computers, to be sure that no one actually hit the alt key. She said she didn’t.

“So you can’t say with certainty that those who confessed didn’t hit the alt key?” he asked.

“No,” she said.

“Isn’t it true that crashing a computer is different from a very serious criminal case?” Rossi asked.

“Yes,” said Redlich.

Westervelt’s side

Late Friday afternoon, the defense called Erick Westervelt to the stand. As he sat in the witness box, Westervelt’s cheeks were red, but he appeared confident.

Friday, he told the jury that he was attending the University at Albany, studying history, until his arrest last October. He has been in Albany County’s jail ever since.

Westervelt said he had a normal, happy life before October. He worked at various stores in Crossgates Mall and he liked to play baseball and basketball, he said.

“Did you have any girlfriends?” Sacco asked.

“I wouldn’t call them steady girlfriends,” Westervelt said. “They were girls I would meet at parties and fool around with a little bit. Nothing serious.”

This, Westervelt said, was until he met Jessica Domery. He met her at Jillian’s, a restaurant-bar-nightclub in Albany, in December of 2003. They were introduced by friends and dated for about half a year until June of 2004, he said.

“Jessica said she was breaking up with me because Tim [Gray] came back and she wanted to be with him instead,” Westervelt said.

That same month, Westervelt was upset over the breakup and was drinking, he said. He went to her house in Bethlehem around midnight and had a conversation with her outside, he said.

“Then, Tim came out and started yelling at me,” Westervelt said. “He pushed me and I pushed him back.”

After the two scuffled, Westervelt told the jury, Gray asked Domery if she had had sex with Westervelt.

“She said no and I stood there in disbelief,” Westervelt said. He left the property and never saw Gray again, he said.

The next month, on July 8, Domery sent Westervelt a text message via cell phone with the question, “One more time?” he said. He spent that night at her house in Bethlehem, he said.

After that, Westervelt said he spoke to Domery once or twice more, but had no physical contact with her.

He spoke to Gray on the phone once more that summer, on July 12. Westervelt said the conversation was “mostly him yelling at me.”

The interrogation

On Oct. 7, a day-and-a-half after Gray was found beaten, Westervelt had just finished a statistics test when two Bethlehem detectives confronted him at his car, he said.

“They said they wanted to ask me questions about my relationship with Jessica Domery,” Westervelt reported. “I said I would answer any questions.”

After a few minutes of talking to Westervelt, the detectives asked him to come to the police station, he said. He agreed and they suggested he ride in the police car because it was easier, Westervelt said.

Sacco interrupted this line of questioning by asking Westervelt if he had ever taken an exam to become a police officer. He said that, in December of 2003, he took an Albany Police test and, in March of 2004, he took a State Police exam.

Westervelt said he had gotten almost perfect scores on both tests and that he wanted to become an undercover officer.

When questioned, Westervelt went back to describing a police interrogation that occurred on Oct. 7 and again on Oct. 8 when he agreed to take a polygraph test at the Albany Police Station.

A polygraph is an instrument, often used as a lie detector, that records changes in physiological functions like heartbeat, blood pressure, and respiration.

Westervelt said, at first, officers befriended him, talking about sports and other subjects, and they bought him a double cheeseburger at Burger King. Later, in a small room with no windows, he was told that Gray was accusing him of the assault, he said.

Westervelt said he told police 30 or 40 times that he didn’t do it, but they wouldn’t believe him.

“It was very stressful and very hard and I was very annoyed because every single time I told them I didn’t do it, it didn’t matter to them,” Westervelt said. “I could not leave. I could not physically walk out the door and breath. I didn’t have my car and, when I said I wanted to leave, they said I wasn’t allowed.”

He agreed to take a polygraph test to prove his innocence, Westervelt said.

Westervelt was first shown three cards — one was yellow, one was red, and the third was yellow with a red dot, he said. Police told him to say each card was yellow, he said.

But, when he was shown the red card and asked if it was yellow, he said no, Westervelt told the jury. The detective got angry, he said, so he changed his answer.

Then, Westervelt said, he was asked questions about assaulting Gray.

“They asked me if Jessica paid me to hurt Tim,” he said.

Then, Westervelt said, he was shown cards and asked to tell which number was written on each card. He got into an argument with the detective then, he said, and he discovered that the needles on the polygraph had not fluctuated.

“At that point, I said, ‘This is bullshit. You’re going to tell me I’m lying no matter what,’” Westervelt reported. “I started pulling at the wires.”

Westervelt reported the policeman told him, “You’re stopping the test because you’re lying. You’re a liar.”

Although Westervelt asked to see a lawyer several times, he said he was never taken to a lawyer.

“Why didn’t you run?” asked Sacco.

“Because I had nowhere to go,” Westervelt said.