 Yutico Briley hugs his mother, Tiffany Colton (Photo: Patrick Dennis/NOLA.com)
The man, known as B.J., gave the men $102 from his wallet, mostly in $1 and $5 denominations. The robbers then quickly left, without taking B.J.’s cellphone or wallet.
B.J. dialed 911. Officers with the New Orleans Police Department responded within minutes. The man gave descriptions of the robbers. He said both were young, Black men; the one holding the gun was wearing a gray sweater and blue jeans, and the other man had a “subtle blue and black shirt” with “stripes going left to right, not up and down.” He would also describe the gunman as a “slim built black male, between the ages of 17-19, approximately 5’10”, short hair.”
That afternoon, as Officer Shelton Abram and his partner started their shift, they were given a brief description of the suspect. At 8:16 p.m., the officers spotted 19-year-old Yutico Briley walking with three friends a few blocks from the robbery. Briley was wearing a gray sweatshirt, and Abram noticed a bulge in his pants near his right hip. The officers decided to stop the young men. When Abram got out of his cruiser, Briley fled but was caught a block away. Abram found a black-and-silver handgun on Briley.
Because of a previous felony conviction for drug possession, Briley was arrested and charged with possession of a firearm by a felon and resisting arrest.
Officers found $103 on Briley, consisting of a single $100 bill and three $1 bills. The officers brought Briley to the police station. At about 10 p.m. Detective Kelly Morel notified B.J. that police had a suspect in custody, and she brought him to the station for a show-up identification. There was no photo array or live lineup with several men standing against a wall. Instead, B.J. remained in the car, at least 15 feet away from Briley, while officers illuminated Briley’s face with the headlights from a nearby police vehicle. B.J. said that Briley was the man who robbed him.
B.J. then took a look at the pistol found on Briley. It was a two-tone Smith and Wesson, and B.J. said it was the gun used in the robbery. Police then charged Briley with armed robbery, and he was sent to the Orleans Parish Jail to await trial.
Briley hired James Williams as his attorney and told Williams that he had an alibi. Briley said that at the time B.J. was robbed, he was eight miles away, at the Evergreen Motel in Metairie, Louisiana, with a woman named Erin Hayden. He said the registration card and surveillance video from the motel would prove his innocence.
Briley would speak to Williams or his assistant seven times from jail, imploring his attorney to secure the evidence. These calls were all recorded and later transcribed. Williams told him that he wouldn’t get the footage until Briley brought him more money. Eventually, Briley’s family scraped together enough funds for Williams to begin investigating.
On December 19, 2012, Williams filed a subpoena for the motel video, but the time requested was wrong. Instead of 12:30 a.m. to 3 a.m., the subpoena requested video from 12:30 p.m. to 3 p.m.
At some point after filing the subpoena, Williams stopped representing Briley because he could no longer pay his attorney fees. Lauren Boudreaux with the Office of the Public Defender was appointed to represent him. She quickly filed a motion to suppress statements and evidence tied to the show-up identification conducted by Morel. A judge denied her request. She also filed a new subpoena for the motel video footage, but the motel said they no longer had footage from November 27. Separately, Boudreaux filed a subpoena application on April 1, 2013, for Briley’s cellphone records from his carrier, Simple Mobile, to show that the GPS in his phone would show him in Metairie at the time of the robbery. The carrier never responded.
On April 5, 2013, an attorney named Michael Kennedy told Boudreaux that Briley had retained him and Miles Swanson as counsel. Boudreaux formally withdrew on April 8. By then, she had already emailed Kennedy and brought him up to speed on the case. She told him about Hayden and provided Kennedy with a telephone number to reach the women.
On April 23, 2013, the day before Briley’s trial was to begin in Orleans Parish Circuit Court, Kennedy and Swanson filed an alibi notice, stating that Briley was with Hayden at the motel at the time of the robbery. Because the notice had been filed on the eve of the trial, Judge Franz Zibilich ruled it was untimely. The attorneys then moved for a delay to develop other alibi evidence, based on the cellphone records. That request was denied, and the trial began the next day.
Kennedy would later say in an affidavit: “I don’t remember what efforts we made, only that we did not find her.” He said there was not enough money to hire a private investigator.
Briley’s trial on April 24, 2013, took three hours. Prosecutors presented three witnesses: Morel, Abram and B.J. Morel testified first, describing the show-up identification. She said that B.J. made his identification from between 15 to 20 feet, in part because he was scared. She said that Abram raised and lowered the hood on Briley’s sweatshirt, and that B.J. made his identification when the hood was up, covering more of Briley’s face.
B.J. testified next. He had told investigators in the immediate aftermath of the robbery that the man with a gun was very dark-skinned. Now, he said the man did not have very dark skin, a description more in line with Briley’s features.
The prosecutor asked B.J. about the show-up, and whether Morel forced him to pick anyone out. B.J. said: “She didn’t force me. It was a really uncomfortable situation. It seemed really unprofessional. I guess that’s how cops do it these days but I was kind of freaked out at first.”
Before the jury, he identified Briley as the man who robbed him and identified the pistol found on Briley as the weapon used in the robbery.
Abram testified about Briley’s arrest, saying that Briley had drawn his attention for matching the description provided by B.J. But that was not quite true. His initial description had also said the robbers were slimly built. Briley was 5’ 8” and weighed 185 pounds. The clothes taken from him at the time of his arrest included jeans with a 36” waist. The description distributed by the police department to its patrol officers was more general; it simply said the robber was a young Black male wearing a gray hoodie and in possession of a silver and black pistol. As Briley’s attorneys would note years later, “There are likely many thousands of young black men in New Orleans who ‘match’ that description.”
Abram also testified about the denominations of the bills found on Briley.
Prior to the start of the trial, Briley had pled guilty to possession of a weapon by a felon. As part of that plea, the state was limited in presenting any testimony that Briley was a convicted felon or had pled guilty to the possession charge.
Briley's attorneys presented no evidence. Their closing arguments took six minutes. Kennedy said at the outset: “As we have said all day long, it is the state’s burden. Mr. Swanson and I don’t have to do anything. As you saw today, we did not put on a case.”
Kennedy and Swanson focused on several weaknesses in the state’s case. They noted that Briley’s sweatshirt had a highly visible red Polo logo on the front, which was never mentioned in B.J.’s description. They also said B.J.’s identification of the gun was weak and appeared to contradict his testimony that he was something of a gun expert. Finally, they noted the difference in the bills. B.J. had a wad in his wallet, while Briley was only carrying four bills.
In the state’s rebuttal, Assistant District Attorney Dustin Poche said the coincidences in the case were too many to point to innocence. Briley had been arrested a few streets away from B.J.’s house, and the man had identified him and identified the gun. As for the denomination discrepancy, Poche said: “The denominations were changed and that is just another coincidence. You can go anywhere anytime and cash in money. There is plenty [of] stores in this whole area right here.”
The jury found Briley guilty of armed robbery and resisting arrest that same day.
Prior to his sentencing, Briley wrote B.J. a letter from jail proclaiming his innocence and asking him to speak at his sentencing hearing. Briley said his attorneys had failed to secure his alibi evidence and that he carried a gun because three of his friend had recently been shot to death. He also said that his family could pay B.J., if that was what he wanted.
After receiving the letter, B.J. met with Poche. He said the letter had concerned and upset him. He also said that he was not 100 percent sure that Briley was the man who robbed him. He was only 85-90 percent sure.
On June 24, 2013, Zibilich sentenced Briley to 60 years in prison, after prosecutors used his weapons possession conviction as a sentencing enhancement.
Briley then began a series of appeals through the state and federal courts, culminating in a petition for a writ of habeas corpus filed in U.S. District Court in the Eastern District of Louisiana on November 5, 2018. In the pro se petition, Briley claimed ineffective assistance of counsel, pointing to the failure of his attorneys to secure the surveillance video from the motel and Hayden as an alibi witness.
On June 11, 2019, U.S. Magistrate Judge Charles Wilkinson Jr. recommended denying Briley’s petition. He said that because the video records from the motel no longer existed and Hayden could not be located, it was impossible to say whether this evidence was favorable to Briley. Therefore, it couldn’t be determined if his attorneys were deficient.
In the summer of 2019, Briley heard a radio interview with the journalist Emily Bazelon, who had just published Charged: The New Movement to Transform American Prosecution and End Mass Incarceration. Briley reached out to Bazelon, who then contacted her sister, Lara Bazelon, a law professor at the University of San Francisco School of Law and the director of the law school’s Criminal Juvenile Justice and Racial Justice Clinical Programs.
Bazelon and attorneys Robert Nelson of the Lieff Cabraser law firm in San Francisco, and Nishi Kumar with Promise of Justice Initiative in New Orleans, filed a petition for post-conviction review on March 12, 2021. While Briley’s petition had focused on the failure to secure alibi evidence, this petition went further, asserting that mistakes at trial had compromised an effective defense.
The trial attorneys had failed to adequately cross-examine B.J. about the shifts in his testimony, from dark-skinned to lighter skinned, and why he had not mentioned Briley’s facial hair in his description. In addition, Briley’s attorneys never raised the issue of cross-racial witness misidentification. Neither did they examine Briley’s clothing from his arrest, which suggested he was much beefier than the man B.J. described to police, nor did they introduce testimony on the prevalence of the handgun found on Briley.
At the time of Briley’s arrest, the New Orleans Police Department said show-up identifications were proper only if a suspect was stopped in the immediate area of the crime or a short time after the crime occurred. Neither factor was present, and the petition said Briley’s attorneys failed to cross-examine Morel about why she chose to conduct a show-up or didn’t give B.J. any admonishments about who he was seeing. Instead, she testified that she told B.J. “we had a subject in custody and I would like him to view the subject and let me know if he recognized the subject as one of the subjects who committed the robbery upon him.”
She was asked, “Why wasn’t a normal line up done? Wouldn’t that have been more reliable?” She responded: “Not to me, no. I elected to do a show up based on he was stopped in the immediate area with less than 24 hours after the robbery actually happened. To me, I feel more confident looking at an actual live human being rather than a paper photograph of somebody’s face.”
After that answer, Swanson didn’t follow up and moved on to other topics. The petition also said that Briley’s attorney failed to properly challenge the inherent unreliability of identifications where a witness is only looking at a single suspect and that suspect is already in handcuffs. The New Orleans Police department discontinued the practice six months after Briley’s conviction.
Separately, Jason Williams had become the new district attorney in Orleans Parish on January 11, 2021, replacing Leon Cannizzaro, whose office had opposed Briley’s bids for freedom. Bazelon and her team brought Briley’s case to the new district attorney’s attention, and his Civil Rights Division, under the direction of Emily Maw, began its own review of the evidence.
Transcripts of the calls made by Briley from the jail to Williams and his assistant contained several references to a man named Leo Worley. He was helping Briley pay the legal bills and also keeping in contact with Hayden. Maw’s staff was able to track down Worley, who had not spoken with Briley since around the time of his arrest, and he confirmed Hayden’s expected role in providing Briley with an alibi.
Less than a week after Briley’s attorneys filed their petition, Judge Angel Harris held a hearing on the motion. Speaking at the hearing on March 18, 2021, Bazelon said: “An innocent client is a fire in the brain. That fire has been raging since the day Mr. Briley was arrested, November 27, 2012.”
After the hearing, Harris vacated Briley’s convictions, and prosecutors then dismissed his robbery charge. The weapon possession conviction was dismissed separately, “in the interest of justice,” according to the district attorney’s office. Briley was released from prison on March 19, 2021.
“This was a textbook example of the failings of our criminal court system,” Harris said. “I’m just glad that today we have a chance to right the wrong that has been done.”
In December 2023, Briley died.
– Ken Otterbourg
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