June 30, 2005
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
“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
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
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
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
“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
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
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
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
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
“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,
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
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
“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
“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
“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
“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.
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 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
Sprotberry asked the investigator if there were any way to determine
if Erick Westervelt had typed these words into the computer. He said
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
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.
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
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
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
“It’s a stressful situation by design,” Redlich said.
Next, she said, the suspect is confronted in a “guilt-presumptive
“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
“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
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
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
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
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
“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,”
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
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.
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.”
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
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,
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 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.