In part one of this series, we discussed Kyree’s battle with the court system over the right to a fair and impartial trial by a jury of his peers. Kyree challenged the court on allowing the District Attorney (D.A.) to dismiss every minority on the jury panel for reasons Kyree felt were merely pretext. Unfortunately for Kyree, the court allowed the D.A.’s actions during trial, and Kyree’s misidentification defense fell on deaf ears. In fact, one of the jurors dismissed by the D.A. and discussed on appeal had first hand experience with being misidentified by the police and could have possibly changed the tide for the outcome of Kyree’s trial.

Selection of jurors not fair

The second juror dismissed by the D.A. was an African-American male who the prosecution characterized as being “anti-prosecution.” In his response to questions during voir dire, the juror stated that police officers “often misidentify suspects.”  He also included on his juror questionnaire that he had “a particularly bad experience” with law enforcement.  While there were jurors who remained on the panel who also stated that officer could misidentify suspects, they attributed the misidentification to poor lighting or picture clarity. The African-American juror simply believed that police officers are human and are just as susceptible to misidentifying a suspect as anyone else.

While having this particular juror on Kyree’s panel may not have made a difference in the outcome of the trial, it’s important to truly evaluate the statements not only made by this juror and the others remaining on the panel, but also within Kyree’s mistaken identification defense. Mistaken identifications are the leading factor in wrongful convictions.3 In fact, “mistaken eyewitness identifications contributed to approximately 70% of the more than 350 wrongful convictions in the United States overturned by post-conviction DNA evidence.”

Identification Reform Package

The Innocence Project has put in place an identification reform package that outlines best practices for identifying a suspect. Many of these practices have been implemented in some Colorado jurisdictions such as Jefferson County. A few of these techniques are:

A Double-Blind Lineup: "...neither the administrator nor the eyewitness knows who the suspect is. This prevents the administrator of the lineup from providing inadvertent or intentional verbal or nonverbal cues to influence the eyewitness to pick the suspect.”

Instructions: “A series of statements issued by the lineup administrator to the eyewitness that deter the eyewitness from feeling compelled to make a selection. They also prevent the eyewitness from looking to the lineup administrator for feedback during the identification procedure. One of the recommended instructions includes the directive that the suspect may or may not be present in the lineup.”

Confidence Statements: “Immediately following the lineup procedure, the eyewitness should provide a statement, in his own words, that articulates the level of confidence he or she has in the identification made.”

Lineup Composition: Suspect photos should be selected in a way that unreasonable attention will not be drawn to one suspect over another. Fillers, or additional photos of non-suspects within the lineup, should resemble the suspect. For example, if all of the filler photos are in black and white, the suspect’s photo should not be in color. Also, if the eyewitness describes the suspect as an Asian male with a slim build, the remaining filler photos should resemble the same race and build described by the eyewitness.

In Kyree’s case, there wasn’t an eyewitness. The burglary occurred when the victim wasn’t home. After showing his surveillance footage to the police, the victim took it upon himself to “enhance” the surveillance footage and submit the footage to the news. The footage was released with an advertisement for a $1000.00 reward to anyone who could identify the suspects shown on the enhanced footage. In the footage, one of the suspects could be seen wearing sunglasses and a hat. Kyree’s girlfriend’s uncle called in for the reward stating that Kyree owned a similar hat to the one worn in the footage.

Let’s forget the fact that the video was enhanced, that the suspects eyes were covered with sunglasses, that his face was partially blocked from the hat, or that hundreds of other individuals likely own this hat – this tip that Kyree owned a hat similar to the one in the video was enough for the police to investigate Kyree. The officers took a still photo of the suspect in the video to Kyree’s probation officer who stated, he was 95% certain that the person in the photo was Kyree. The officers then went to Kyree’s girlfriend with the still photo, and she stated that she was 80% certain the person in the photo was Kyree.

The Connection to Reasonable Doubt

These percentages are important for two reasons. The first reason is that many jurisdictions have adopted the strategy suggested by the Innocence Project that requires a confidence statement from the person identifying a suspect. The person identifying the suspect must say how confident they are about their identification. Second, the standard that must be followed in a criminal trial to convict someone of a crime is “beyond a reasonable doubt.” Meaning, if a juror has a doubt that the defendant is guilty, and that doubt is reasonable, a juror cannot find the defendant guilty. A reasonable doubt is a doubt that would cause a reasonable person to hesitate before acting in a matter of importance. Furthermore, it’s the D.A.’s burden to prove each element of a crime beyond a reasonable doubt. Identity is an element that needed to be proven beyond a reasonable doubt to convict Kyree.

Although the surveillance footage that lead to Kyree becoming a suspect was “enhanced,” the jury still believed that he was guilty of both first-degree burglary and conspiracy to commit first-degree burglary. Despite the fact that witnesses who knew Kyree such as his girlfriend and his probation officer, were unable to identify Kyree with 100% certainty, the jury still felt that Kyree was guilty beyond a reasonable doubt. And even though during trial Kyree’s girlfriend admitted under oath that the officers coerced her to identify Kyree, and the officers testified that they didn’t recovery any of the stolen property upon searching Kyree’s belongings, Kyree was still sentenced to 13 years in prison.

On some level we all want to believe that our criminal justice system is set up in way that the truth will surface, offenders will be identified, and the innocent will walk. However, when we find hundreds of cases where innocent people have suffered from wrongful convictions, many due to misidentification, we become jaded. We start to wonder about the misidentification of people like Kyree Howard-Walker.

If you have a legal issue you need help with, the attorneys at Whitcomb, Selinsky Law PC would love to share their expertise with you. Please call (303) 543-1958.

*This article is part two of a two-part series reviewing the recently decided Colorado case, The People v. Howard-Walker.