The Court of Appeals denied a new trial to a man convicted in Jefferson County, even though the victim came forward after the verdict to admit his testimony could have been wrong and the defendant may have been innocent.
Prosecutors and defense attorneys agreed that the judicial system has a bias toward finality, and a change of heart for a juror or witness is not grounds to reverse a conviction.
"The courts are very skeptical about recanting witnesses because they think maybe they got threatened. Maybe they got bribed. Maybe they had buyer’s remorse about their testimony," said David Lane, a criminal defense and civil rights attorney. "I’ve seen people executed on situations like this."
A Jefferson County jury convicted Keith Robert Kolln of theft after Kolln took a $1,000 check for work he performed on a building renovation and altered it to read "$9,000." The victim noticed the much larger number on his bank account and alerted the bank, which in turn notified police.
However, after the verdict, the victim reportedly went to the office of Kolln's defense attorney and made several statements casting doubt on the reliability of his own testimony, which he attributed to his multiple sclerosis.
“It’s very possible I could be wrong," the victim said. "Had they [jurors] known that my recollection has diminished because of my disease, that could have given them more reasonable doubt.”
He added: "This is not sitting well with me. I believe if you had this information, you would have cross-examined me much more harshly because stress aggravates the situation, so I could have sounded like an idiot on the stand. I think the jury may have found that my recollection is questionable and based on that, they may have found him not guilty."
Finally, the victim said he has been proven wrong in the past about information he was sure he knew. Referencing the altered check, he said, "I can't say for sure that I didn't do it."
The trial judge rejected Kolln's motion for a new trial, noting the defense had thoroughly cross-examined the victim and the new statements would likely not have caused the jury to acquit Kolln.
A three-judge panel of the Court of Appeals considered the case and explained that granting a new trial based on newly-discovered evidence would require the defense to show it had tried to discover all possible favorable information, that the new evidence is central to the issues involved at trial, and that the discovery would probably result in an acquittal.
Ultimately, the panel decided the victim's sentiment that he "could be wrong," made outside of a courtroom, was too vague and uncertain to warrant a new trial.
"That stands in stark contrast to [the victim's] sworn trial testimony regarding Kolln’s guilt and the sworn declaration he completed when he first reported the issue to the bank," wrote Judge David H. Yun in the Nov. 18 opinion.
Yun cited a 2009 decision of the Colorado Supreme Court that determined a witness's recantation after trial could only justify a new trial if it contradicted his or her original statements with a different, more credible account of what happened and, by itself, created a reasonable doubt.
That decision was 4-3, with the court's minority believing the standard for granting a new trial was set too high. Then-Justice Michael L. Bender wrote for the dissenting members that it should warrant a reversal of conviction if a witness's recantation, in combination with all of the other evidence, "is of such consequence that it probably would result in an acquittal on retrial."
Bruce Brown, the former district attorney for the Fifth Judicial District of Clear Creek, Lake, Summit and Eagle counties, said he has seen similar recantations post-trial, but characterized the victim's change of heart in Kolln's case as on the "far end of the spectrum."
"I think the appellate court is reluctant to overturn a trial court who has already heard this issue and made determinations against the defendant," Brown said. "Appellate jurisdiction is fairly narrow and they don’t want to step into a trial court’s shoes."
Although Kolln received two years of probation for his conviction, inaccurate witness testimony can be far more consequential to a defendant's life and liberty. In 2011, the state of Georgia executed Troy Davis for the murder of a police officer, even after a majority of eyewitnesses recanted their testimony or alleged law enforcement pressured them to lie. The U.S. Supreme Court declined to halt the execution.
Mary Claire Mulligan, a criminal defense attorney in Boulder, said she once received a new trial for her client after finding out a juror had lied about their criminal history.
"That’s the only one I’ve ever won in 30 years," she said. "I find the courts to be very suspicious of post-trial statements exonerating the client, even when someone else confesses."
The case is People v. Kolln.