A few years ago, TalkLeft’s incomparable Jeralyn Merritt (one of the first high-profile legal commentators to raise questions about Mike Nifong’s misconduct) flagged a Los Angeles Times magazine article about a convicted murderer named Bruce Lisker. The lengthy article is well worth reading: it’s impossible to come away from it without believing that an innocent man has spent more than 20 years of his life in jail for a crime he didn’t commit.
Last Friday, U.S. District Judge Virginia Phillips accepted the recommendations of a magistrate judge and vacated Lisker’s conviction. (Here’s a link to the magistrate judge’s report—which, like the Times article, is well worth reading in its entirety.)
Between the Times article and the magistrate judge’s report, the Lisker case provides an unusually well-documented example of a miscarriage of justice. It also illustrates how the lacrosse case differed from most cases of innocent people being charged with a crime they didn’t commit.
Lisker, an adopted son of older parents, had a troubled childhood. He used hard drugs in junior high school, fought constantly with his adoptive mother, was briefly sent to what seems to have been a reform school, and at age 17, dropped out of high school. He persuaded his parents to rent him a cheap apartment not too far from their house, and, by his own admission, continued his downward spiral of behavior.
On March 10, 1983, Lisker went to his parents’ house—to, he said, borrow a car jack. When his mother didn’t answer the door, he said he looked in the living room window, saw his mother’s prone body, and entered the house. Lisker saw his mother stabbed in the back, took two knives out of her back (getting blood on himself and his sneakers in the process), and called 911. Detective Andrew Monsue responded to the call, interrogated Lisker (without initially reading him his Miranda rights), concluded that the young man was lying (in large part, the detective claimed, because the alleged glare of the sun meant there was no way Lisker could have looked into the window and seen his mother), and arrested him.
Monsue’s initial reaction was not unreasonable: Lisker had motive (he had repeatedly quarreled with his mother); was found, covered in blood, at the scene of the crime; and failed a lie detector test (for which he had volunteered). But the detective’s subsequent behavior provided an almost textbook case of “tunnel vision” by the police. Having decided that Lisker was lying, he interpreted all of the evidence through the prism of Lisker’s guilt. So Monsue simply assumed that all of the bloody footprints on the scene belonged to Lisker, rather than having them checked. (Twenty years later, when a criminalist finally did examine the footprints, it was established that one set of the bloody prints didn’t belong to Lisker.) The detective went out of his way to document “evidence”—notably the alleged glare on the living room window—that made Lisker look more guilty. (It turned out that, given weather conditions on the day of the murder, the body would have been visible through the window.) And remarkably strong evidence that a casual acquaintance of Lisker who had a violent past, a drifter named Michael Ryan, was the actual murderer Monsue either ignored or didn’t investigate.
At trial, prosecutor Phillip Rabichow repeatedly made statements that he might have believed but which turned out to be false. He told jurors that since Lisker had lied about seeing his mother’s prone body, nothing else the young man said could be true. And, Rabichow added, since no one else’s footprints had been found at the scene, who else but Lisker could have committed the crime? In both instances, Rabichow had trusted the evidence package that Monsue had provided to him. But these statements were not true.
Lisker’s attorney, meanwhile, proved so incompetent that he couldn’t even get the evidence about Ryan admitted to the trial. After 10 hours of deliberation, a jury found Lisker guilty of second-degree murder, a sentence for which he has remained in jail until his release this week. The local DA’s office hasn’t decided whether it will retry him: how such a move could serve the cause of justice is unknown.
One obvious similarity exists between the Lisker and the lacrosse cases: police officers “recalling” “facts” they hadn’t documented contemporaneously, so as to paper over holes in the prosecution’s case. In the lacrosse case, of course, this pattern most clearly emerged with the Gottlieb “notes,” the typewritten document—most of which Gottlieb subsequently admitted he produced in July, months after the events it allegedly described—that conveniently filled some of the myriad holes that already had emerged in disgraced ex-DA Mike Nifong’s case.
In the Lisker case, such “recollections” occurred much later, as federal courts and the LAPD’s Internal Affairs unit started looking into the prosecution. Monsue “recalled” that the new owners of the Liskers’ house had discovered the money allegedly stolen from Lisker’s mother in the bedroom formerly occupied by Bruce Lisker—which would have conveniently filled a major hole in the case. (If robbery were a motivate for the crime, as the state claimed, and if Mrs. Lisker were in fact robbed, then why did the police not find any money on Bruce Lisker?) The only problem: the new owners said they hadn’t found any money, and that they certainly hadn’t told Monsue about it.
Other undocumented “recollections” included the police photographer “recalling” arriving on the scene several hours before his notes claimed (which was an important element for the “window glare” evidence); and two of Monsue’s subordinates “recalling” that they might have stepped in blood at the scene, thereby providing the footprints that weren’t Lisker’s. The magistrate judge bluntly concluded that both Monsue and the police photographer had knowingly provided “false” testimony.
But the differences between Lisker and lacrosse far outweighed the similarities between the two cases.
In the Lisker case (and, indeed, most instances of innocent people being wrongly incarcerated), prosecutor Rabichow didn’t improperly assume personal command of the police investigation; in the lacrosse case, prosecutor Nifong did.
In the Lisker case (and, indeed, most instances of innocent people being wrongly incarcerated), prosecutor Rabichow didn’t make dozens of ethically improper public statements; in the lacrosse case, prosecutor Nifong did.
In the Lisker case (and, indeed, most instances of innocent people being wrongly incarcerated), prosecutor Rabichow didn’t instruct the police to run a lineup that flagrantly violated the department’s own procedures; in the lacrosse case, prosecutor Nifong did.
In the Lisker case, Monsue appears to have randomly accepted the call, and had no documented behavior of disproportionately arresting 17-year-old people named Lisker; in the lacrosse case, of course, Gottlieb had a documented record of disproportionately arresting Duke students.
In the Lisker case (unlike, it should be noted, many instances of innocent people being wrongly incarcerated), prosecutor Rabichow didn’t conspire to conceal exculpatory evidence; in the lacrosse case, prosecutor Nifong did.
Despite these myriad differences, if Lisker’s case had occurred in North Carolina (and, of course, if Lisker were African-American), doubtless the disgraced Nifong’s de facto propaganda agency (justice4nifong) and extremists among the Group of 88 would be demanding that the State Bar open proceedings against Rabichow. Politically correct reviewers (and even respectable figures who should know better) would draw strained comparisons between Lisker’s treatment and that of the lacrosse players.
Yet, in the real world, even in what the L.A. Times described as a “haunting” case like Lisker’s, the intent of prosecutors matters when evaluating questions of misconduct. And while it seems pretty clear that Monsue deserves disciplinary action (and equally clear, given the LAPD’s culture, that Monsue will be allowed to skate by), it’s hard to see, at least based on the facts uncovered by the magistrate judge and the L.A. Times, what ethical allegations possibly could be brought against Rabichow.
So if innocent people like Lisker can go to jail for decades without a prosecutor committing any misconduct, why did Nifong have to break so many rules to prop up a case for a year? Three explanations come to mind:
First, and most important, Nifong not only had to manufacture evidence to send innocent people to jail, he had to manufacture evidence of a crime with which to charge them. To manufacture evidence of the “crime,” Nifong needed to conspire to withhold the exculpatory DNA evidence, work alongside ex-SANE nurse-in-training Tara Levicy so that Levicy would constantly shift her story, and whip up public opinion into a frenzy so locals wouldn’t look too closely at the facts he was presenting. To manufacture evidence against those he charged with the non-existent “crime,” Nifong needed the police to break the rules regarding the photo lineup, which then supplied the only evidence he would present against the three people he falsely charged.
Indeed, the single scariest legacy of the lacrosse case is that an unethical local prosecutor has enough power to charge people (with the motive of advancing his political career) even when no crime has taken place.
Second, unlike the Lisker case, the lacrosse players had excellent attorneys. They couldn’t stop Nifong from bringing the case, but their aggressiveness did force him into lots of errors (the Gottlieb memo, the handling of the DNA evidence in fall 2006 court sessions, the bizarre public statements in fall 2006) that intensified the ethical improprieties with which he would be charged. If the lacrosse players had passive, incompetent representation like Lisker did, Nifong simply would have sat back and done nothing as the case ground to trial.
Third, and much unlike the Lisker case, the institutions in society we expect to stand up for civil liberties—the media (except for the N&O once Joe Neff took over as their lead reporter, and the AP), the academy, civil rights organizations—by and large exhibited little interest in the question. To the contrary: the Times, the Herald-Sun, the Group of 88, the North Carolina NAACP, and other such groups seemed more interested in propping up Nifong’s case than in demanding that all citizens, regardless of race, class, or gender, receive equal treatment under the law.