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PROVO — Attorneys for a man accused of groping women on the BYU campus are asking a judge to prevent prosecutors from using testimony from 10 members of the school’s track team at his upcoming trial.
Team members and coaches identified Nathan Fletcher as the man in two clips of pixelated surveillance video, including one that captures a jogger reaching out and touching a woman's chest. They said they identified him based on his running gait and what appears to be his old BYU track team uniform.
But Fletcher’s attorneys say the flawed methods investigators used when they showed the video during a team meeting to between 100 and 150 track team members tainted and distorted the reliability of their testimony and could prevent their client from receiving a fair trial.
Fourth District Judge Samuel McVey will hear oral arguments in the case Tuesday and will decide whether testimony from 10 witnesses will be allowed during Fletcher's April trial on two counts of sexual battery, a class A misdemeanor.
BYU police detective David Styer Jr. met with Ed Eyestone, BYU’s track and field coach, and some assistants on March 31, 2014, to ask for their help in identifying a man in several campus sexual assaults. Eyestone and the others couldn’t identify the man from the footage but agreed to allow Styer to show the video to the entire group before their team meeting, defense attorneys John Allan and Rachael Whitaker wrote in their motion to suppress.
The group was first shown BYU track team clothing that appeared to be similar to the clothing worn by the jogger in the surveillance footage, suggesting to the group that the suspect was either a member of the team or connected to the team, the motion states.
While watching the video, team members discussed what they were seeing, shared their opinions and even mentioned specific names to each other.
“Several witnesses testified their identification only came after the name ‘Nathan Fletcher’ was mentioned to them,” the attorneys wrote.
Several witnesses testified their identification only came after the name 'Nathan Fletcher' was mentioned to them.
–Attorneys for Nathan Fletcher
Even Eyestone, they said, only identified Fletcher after hearing other team members say they believed it was him.
Afterward, some team members gathered and shared photos of Fletcher, including pictures of him wearing the same track clothing the suspect is seen wearing. Some, the motion states, discussed their opinions of Fletcher’s personal conduct — “one witness going as far as calling Mr. Fletcher a ‘skirt chaser,’” according to the motion.
The conclusions reached by team members were “suggestive and conducive to irreparable mistaken identification” and were the “product of group thought.” The attorneys say such “joint confrontations are a disproved identification procedure” and that it’s “better procedure” to keep witnesses apart when trying to identify someone.
They want testimony from Eyestone, Jonathon Nelson, Jared Frandson, Isaac Robison, Tyrell Yardley, Curtis Carr, Travis Fuller, Ann Haymond, Ryan Waite and Dylan Shawhan to be suppressed.
But prosecutors insist that the track team took its responsibility seriously and were "sober and quiet" while watching the video footage.
"The only comments that were heard were that he’s a heel striker, or he’s not running fast in these. There was no comment about the identity of the jogger made out loud," Stephen Schreiner and Marcus Draper of the Provo City Attorney's Office wrote.
They said Styer noticed about five people throughout the room who were "nodding their head(s) in recognition" and they identified Fletcher privately to him and did not shout out his name.
"Detective Styer stopped the meeting upon hearing whispers and conversations among the team members," prosecutors wrote.
In their motion, prosecutors say the track team members and coaches reached their own conclusions independently after noticing the suspect's running style and mannerisms matched those of Fletcher.
If Styer suggested the suspect was or had been a member of the BYU track team or was connected to the team, prosecutors said that would be a group of "hundreds of team members and thousands of people" and could not have unfairly focused on Fletcher.
McVey could rule on the motion Tuesday or may take the issue under advisement.
