By Alissa Bjerkhoel
Alissa Bjerkhoel is an attorney at the California Innocence Project. She coordinates case litigation, serves as the in-house DNA expert, and directs and supervises clinical casework. She is a Fellow of the AAFS and serves on several Innocence Network committees. She has appeared on television shows, podcasts, and was portrayed in the feature film “Brian Banks.”
It has long been held that “[t]he vagaries of eyewitness identification are well known and the annals of criminal law are rife with instances of mistaken identification.” (United States v. Wade (1967) 388 U.S. 218, 228.) Unintentional misidentifications of suspects account for approximately a third of exonerations. (Jackson & Gross (2016) Tainted Identifications.) Witnesses often make mistakes when they are asked to make an identification, and they are even worse where the eyewitness is a different race than the perpetrator. Cross-racial identifications, or identifications made by witnesses who identify a perpetrator from a different race, have around a 50% greater chance of error than identifications in which the witness and perpetrator are of the same race. (Connelly, Race and Wrongful Convictions in the United States (2015) Mich. J. of Race & Law, p. 126.) Guy Miles’s case was no exception.
The crime in Guy’s case was relatively simple: Two armed black men (one stocky and one skinny) committed an armed robbery of a Fidelity Financial Institution in a strip mall at closing time when only two employees were present. A third man, the getaway driver, was in the parking lot. They absconded with only $400 and a bunch of checks they would never be able to cash. Inexplicably, during the robbery, the getaway driver decided to go shopping for car parts in the neighboring auto store; he had an auto loan with Fidelity on the very same car, which made it easy for police to connect him to the robbery. Without this slip-up, it is unlikely the crime would have ever been solved.
Investigators had more difficulty trying to figure out who the other two perpetrators were. Whether by incompetence or intent, the lead officer put multiple six-pack lineups together without regard for height, weight, or similar characteristics. Anyone who had been associated with the driver or who had lived in the same area as the driver was put into a six-pack, sometimes with up to four suspects in a single six-pack. The two eyewitnesses picked out numerous photos, with varying degrees of certainty. Ultimately, one of the victims positively identified Guy Miles as the stocky robber. He was the only one in the lineup who generally matched the stocky robber’s description. Efforts ceased to find the skinny robber and the case proceeded to trial in Orange County, a jurisdiction notorious for having disproportionately few Blacks serving on juries up to and through the 1990s. Not surprisingly, Guy was convicted and sentenced to 75 years to life in prison. If he had been White, his sentence would have likely been much less. (U.S. Sentencing Com. (Nov. 2017) Demographic Differences in Sentencing, p. 2.) Although technically parole-eligible, for Guy this was a death sentence. Even with good behavior, he would not be released until he was well into his 80s.
When Guy’s case came to the California Innocence Project, several issues in his case immediately stood out. For one, the main eyewitness against him said at trial Guy was not one of the robbers. Of course, she retracted that statement after a meeting with the prosecutor, but nevertheless it was unique. There were also other problems with the eyewitness identifications that increased the chance that they were unreliable. The identifications were cross-racial. The officer did not administer the lineups blindly, which research shows often leads to misidentification, as an investigator who knows where the suspect is in the lineup can influence the witness to selecting the suspect, even without knowing they are doing so. The eyewitnesses were under a tremendous amount of stress at the time of the crime, and the perpetrators used weapons in the crime; studies have repeatedly demonstrated that people in such stressful situations have difficulty accurately recording and relaying information afterwards. The incident itself was brief, giving the witnesses only a few seconds to see the perpetrators and remember their faces. The officer told one of the eyewitnesses that arrests had been made before administering a lineup, unconsciously indicating that the perpetrator was going to be in the lineup. The identifications were belated, extending the time period between the robbery and the identification, and increasing the likelihood that the witnesses’ memories would have faded. The main eyewitness was shown multiple photos of Guy, making it more likely that the witness would identify Guy at trial.
Secondly, and frustratingly, Guy had a solid alibi. In fact, nine alibi witnesses, including people unrelated to him, placed him in Las Vegas at the time of the crime. The fact that shoddy eyewitness identifications could overcome a solid alibi was alarming. Alarming not just because the prosecutor still decided to pursue the prosecution in light of this evidence, but because an all-White jury (there was one Black juror who served as an alternate) convicted Guy, despite the overwhelming evidence of his innocence.
It took years and multiple evidentiary hearings, but the California Innocence Project solved the case and the three true perpetrators confessed to the crime. The Court of Appeal reversed Guy’s conviction. In re Guy Miles (2017) 213 Cal.Rptr.3d 770 (ordered depublished).
As is the often the case when a wrongful conviction is brought to light, however, the prosecutor threatened retrial and offered Guy a plea deal he could not refuse — take a deal pursuant to People v. West for time served and go home immediately, or risk going back to trial, being convicted again, and incurring another sentence of 75 years to life. Although we were confident we would win at the retrial, Guy took the plea. He was released on June 20, 2017, after having served 19 years for someone else’s crime.
With the current events, I am hopeful that there will be some changes to the criminal justice system to deal with these issues. Pending right now in California is Assembly Bill 2200, which would establish the California Racial Justice Act. The Act seeks to remedy some of the racial issues present in our justice system. The Act would allow someone who had been charged or convicted to raise a habeas claim of racial bias. Specifically, the claims would pertain to whether: (1) there was racial bias by a critical player in the case — an attorney, judge, law enforcement officer, expert witness, or juror; (2) there was use of racially discriminatory language during the criminal proceedings — for example, in an unrelated case involving two Black defendants, one Los Angeles County judge “made a remark to the effect that he guessed that the only thing that would make the defendants plead was for the judge to come out in a white sheet and a pointy white hat” (Com. on Jud. Performance (Mar. 16, 2011) Public Admonishment of Judge Harvey Giss); (3) there was racial bias in jury selection; or (4) there are statistical disparities in how people of one race are disproportionately charged, convicted, or sentenced. If the person produces evidence of racial bias in their case, their conviction and sentence will be reversed.
What happened to Guy Miles is an embarrassment to our criminal justice system. It is embarrassing that shoddy eyewitness identifications, obtained by shoddy investigative procedures, can trump a solid alibi. It is embarrassing that Black exonerees account for almost half of the exonerations in the United States when they only account of 13% of the country’s population. (Gross, Posely & Stephens (Mar. 17, 2017) Race and Wrongful Convictions in the United States, p. 1.) It is embarrassing that, if you are Black, depending on the crime, your chances of being wrongfully convicted are between three and 12 times more likely than your White counterparts. (Id. at pp. 4, 12-13, 16-17.) It is embarrassing that Black defendants receive 20% longer sentences than their White counterparts. (U.S. Sentencing Com., supra, Demographic Differences in Sentencing, at p. 2.) It is embarrassing that Guy’s best option, after fighting his case for 19 years, was to take a plea deal rather than gamble with a racist and unfair criminal justice system. And it is embarrassing that there are more people like Guy Miles out there, some whose cases will never be found nor be undone. But if anything can be learned from Guy Miles, it is to never give up, no matter high the odds are stacked against you.
NEVER GIVE UP
My name is Guy Miles. I spent 18 years, 8 months, and 29 days incarcerated for a crime I did not commit. I have been through so much pain and hurt that no one should ever have to go through or endure. That pain was shared by my family who, although not incarcerated, were also serving a sentence — a sentence of having their loved one unjustly taken away from them. This is what happened to me.
I grew up in Carson, California, and had moved to Las Vegas, where I was living in the summer of 1998. When I was arrested for a June 29, 1998 robbery that occurred in Orange County, I could not believe it. It really was unbelievable to be accused of a crime that you know you didn’t commit and in a state where you weren’t even living. At first, when officers told me why they were arresting me, I thought they were playing a trick on me. They kept saying they were from Orange County and it was confusing. I had not been to Orange County since a trip to Disneyland in ’83 or ’84.
After they arrested me and put me in a holding cell, I realized this was not a joke. This was really happening. This was for real. It took me a while to settle down and think. I kept trying to put all the pieces together, but I had no idea where to start.
I thought about all the stories you hear on the street about people being wrongfully convicted and being accused of crimes they did not commit. Being arrested for something you didn’t do is one thing. But convicted? I did not believe that actually happened. I always figured someone did something wrong, probably knew something, or had something to do with the crime. They were not completely innocent. But here I was.
When I was awaiting trial, I asked my girlfriend about what I had been doing on the day of the robbery. She had a really good memory and told me that was the day after I picked my son up from Carson and brought him to Las Vegas for the summer. I had spent the following day visiting family and friends and showing off my son. I talked to my neighbor, my auntie, my friends, any anyone who was around us on the day of the robbery. They also remembered. Unbelievable. Here I was living in Las Vegas and being accused of a crime in a state I know for a fact I wasn’t in at the time.
I knew once I went to arraignment, however, that my situation was going to snowball out of control. Everyone in the room was White. The judge was White. The lawyers were all White. The two officers in the room were White. The court staff was White. I felt uncomfortable. I was the only Black person in the room. I knew this was going to be a battle and I was going to have to fight for my life.
My parents sold their house to hire a private lawyer for me. We wanted someone we could trust and who wasn’t going to turn on us. So we hired a lawyer who was a family friend. He would later end up disbarred, but we did not know any better. We trusted him.
When it came time for jury selection, I watched them call in the jury. Of maybe 30 jurors, only two were Black. Both Black jurors were dismissed. I expected it. It was as though the DA was searching for an all-White jury. They didn’t want anyone to come in who looked like me or talked like me. I felt defeated again and just knew it was going to be a bad outcome.
I got my hopes up when the DA called the first eyewitness. I thought that she would get on the stand and realize I was not the person who robbed her. The case would be over and I would go home. But when she sat down, she would not look at me. She looked only at the table. She wouldn’t look at me. I wanted her to look at me.
During a break while the eyewitness was still on the stand, I asked if she could take a good look at me. And she did. Then she shook her head, and said it was not me. She came off the stand and stood close to me and it was if the calm came over her face. She relaxed. She talked to me. She told me to turn around and to look to the sides. I did. There was no longer any fear in her eyes and she said, “that’s not him.” As soon as she said those words, she was quickly rushed outside of the courtroom with the DA. When she returned to the stand, she was totally opposite. She was programmed. She identified me as her robber. My stomach sank.
The DA called the second eyewitness. He came in and he was angry. He immediately said it was me, but he too wouldn’t look at me. It seemed he was willing to do whatever he had to do to convict someone.
I was not feeling good at all about the trial. I started preparing myself mentally for when I was convicted. But, at the same time, I was still holding onto hope that the truth would come out.
My hopes went up further when the jury was deliberating. They deliberated for weeks. My lawyer told me the longer they were out, the better odds for me. Every day, I would come into the courtroom and there would be no verdict. After the third or fourth day, it just became a habit — come in, check in, no verdict, go back. Now, I was hoping for an acquittal.
When the jury walked in with their verdict, I knew it was over. None of them would look at me. They did not have the eye contact that they had previously. I knew right then that I had lost. When I actually heard the words “guilty,” I looked directly at my mom. I watched her cry and cry. My father put his arm around her. My sisters came to her aid and took her out to the hallway. She had a breakdown. Then I just blanked out. I was devastated.
It took some time, but I started trying to find out who really committed the crime. My co-defendant said he was innocent and I believed him because, after all, I was too. There was some talk on the street about who really committed the crime, and my co-defendant and his friend were involved. That information was a kick to the gut. I never questioned the fact that he had something to do with it because I thought we were both being wrongfully accused. I was angry. It hurt all over again. Yet another person had let me down.
My parents would spend their retirement savings hiring a new lawyer for a motion for new trial. It was hurtful that my parents had worked their whole lives, saved their money for retirement, and now had to use it to bail me out of something I didn’t do. We tried to present evidence to the court about who we thought did it, but it didn’t work.
When I received a 75-years-to-life sentence, the first thing I thought about was my family, and especially my mother. I thought about the pain that she must be going through, losing a son. I am not going to be able to take her to the store; I am not going to be able to talk to her; I am not going to be able to just be with her. I thought about not being able to be around my kids. Not being able to hug my grandkids. Not being able to go through a drive-through. Not being able to do anything.
The anger and sadness I felt, on the other hand, also gave me the fuel to keep going and keep fighting. I asked everyone I could think of for help. I wrote to the DA, the mayor, the ACLU, and other organizations. When I got to prison, I heard about the California Innocence Project. I wrote to them and they took on my case.
I was a long road, but they were eventually able to put all the pieces together to find out who did the robbery, and get my conviction reversed. When I got the news that I was going home, I was so happy and excited. I felt alive again. I had not felt that alive in 18 years. The joy was back. The happiness that I would be back with my mother, my father, my kids, and my grandkids all came flooding back.
At the end of the day, I know we live in an unjust world. I know we live in a prejudiced world. I know that the cards are stacked against me. But I never let that be an excuse to give up in life. And for others like me: Don’t give up. Make your anger about your situation and your love for your loved ones be the fuel to work harder, and find a resolve to your situation.
Guy Miles spent 19 years in prison for a crime he did not commit. He was released on June 20, 2017, and now lives in Arlington, Texas with his fiancé. He speaks frequently about wrongful convictions and the impact it has had on his life and those who love him. He has appeared on local and national news shows, podcasts, and at conferences in the hopes to bring awareness to wrongful convictions and affect change.