Last week, Colorado’s second-highest court overturned a man’s murder conviction and ordered a new trial after finding that a witness’ identification, based on a suggestive series of photographs, was unreliable and should have been excluded. of the trial.

On the night of January 30, 2018, two men fought with Ricardo Rivas in the parking lot of his apartment building in Westminster. One of the attackers was taller and thinner and the other was shorter and heavier. Several witnesses saw parts of the attack, which culminated in the shooting death of Rivas.

Only one witness saw the shooting. She stood near her apartment building up to 100 feet away from the fight and watched for 40 seconds. The witness maintained that the shorter, larger man was Rivas’s murderer.

Four months after the witness gave her initial account to police, including a description of the suspect, police presented her with six photographs of men who resembled each other. The witness identified Juan Manuel Castorena as the shooter with 80% certainty.

Later the jurors Castorena convicted of murder and is serving a life sentence.

On appeal, as he did before the trial, Castorena questioned the reliability of the witness’ identification of him through the set of photographs.

First, there were other suspects who matched the shooter’s description. Second, the witness ultimately failed to identify Castorena as the shooter during the 2022 trial. Third, the witness’s description changed slightly over time.

Additionally, the defense argued that the police photographs were unduly suggestive. The witness originally told officers the shooter was wearing a hoodie. In the series of photos, Castorena was the only one wearing a hoodie.

During a pretrial hearing, then-District Court Judge Robert W. Kiesnowski Jr. admitted that the photo display was problematic.

“My heartburn is the hoodie,” he said. “Lo and behold, the only person wearing a hoodie, almost like a halo, so to speak, is the defendant.”

Despite finding the series of photographs suggestive, Kiesnowski concluded that the witness’s determination was reliable, given her view of the shooter’s face and the confidence with which she made the photographic identification.

On appeal, Castorena again questioned the reliability of the identification. His lawyer summoned for investigation illuminating the fallibility of eyewitness memories. The innocence project has also reported that of 367 DNA-based exonerations, 69% of the cases involved mistaken identifications of the accused by witnesses.

“Were there some inconsistencies over four years? Sure. But that’s a natural part of this process. Over four years, it makes sense for a description to change a little bit,” Deputy Attorney General Sonia Russo told a panel of three judges of the Court. Court of Appeals during oral arguments.

Like the trial judge, the panel agreed that the fact that Castorena was the only suspect in the photo series wearing a hoodie made the lineup suggestive to the witness. Therefore, his extrajudicial identification had to be reliable enough to be used as evidence.

The panel concluded that it was not.

First, the appellate judges were concerned that the witness had seen the shooter from up to 100 feet away during the night.

“We have found some cases confirming identifications made between six and fifty feet away, but those cases involved daylight conditions,” Judge Katharine E. Lum wrote. in the opinion of October 24.

Aside from the witness’ changing physical description of the shooter, the panel found no evidence about what Castorena looked like at the time of the murder. Finally, four months had passed between the crime and the photo identification.

“While other witnesses and evidence located Castorena at the apartment complex that night and linked him to the fight with the victim,” Lum wrote, the “extrajudicial identification was the only evidence that Castorena, and not the (thin assailant) or anyone else, had shot the victim.

Because the unreliable witness identification likely affected the verdict, the panel ordered a new trial.

the case is The People vs. Castorena.