Wednesday, August 12, 2009

The Lisker Case

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.


William L. Anderson said...

I think your last paragraph is the most important, as the institutions of our society upon which depend for justice have broken down. The academy no longer stands for truth, and we certainly cannot see any attempt by the courts themselves to promote truth.

Instead, these institutions have become so thoroughly politicized that every action now is seen through the lens of the "acceptable" political outcomes. This is a prescription for tyranny, and that is what we have, and what will get get.

William L. Anderson said...

I notice that the LA Times piece mentions a "jailhouse informant" as a piece of "evidence" used by police. This takes the case out of just a "rush to judgment" and puts it into the category of outright criminal fraud.

Prosecutors love "jailhouse informants" because they always seem to come up with details that only the accused might have known. However, we now know that in most of these kinds of testimonies, it is the police and prosecution which feed information about the case to the "informant" who then trades testimony for reduced sentences or even having charges dropped altogether.

In fact, the name for this scummy practice is "jumping on the bus," and I guarantee you that had Reade, Collin, or David spent any time at all in jail, that Nifong and Gottlieb and the Durham police would have found their own "informants" ready to testify. (The one problem here is that because Nifong continually changed the story to fit the exculpatory evidence, no doubt the "informant" would have had to be briefed multiple times and sooner or later his original story would have contradicted what he would have said in testimony.)

I believe we need to face the fact that in the United States, we no longer can count on prosecutors or police being honest in court. We have to assume that in most circumstances, they are lying, perhaps not totally, but even when they have slam-dunk cases, it is hard for them to stick with the truth.

The term we economists use is "moral hazard" (which is one reason we had the meltdown in the financial markets -- the government bailouts encourage the behavior that is bailed out). In the case of prosecutors and the police (and especially prosecutors), because it is so unlikely that they will face any real sanctions for lying, they feel free to do whatever they want.

Moreover (to use another economic term), we see a "Gresham's Law" at work with prosecutors. Because there is so much lying that goes on, prosecutors who don't wish to lie and basically are honest people leave that line of work because they are so discouraged as to what they see.

That leaves the dishonest people in charge, as "dishonest prosecutors drive honest prosecutors" out of office. We then are left with increasingly more dishonest people.

W. R. Chambers said...

On a day to day basis, prosecutors are the most important and the most powerful lawyers in the country. For most people, the cost of retaining an experienced, skilled, committed criminal defense lawyer is prohibitive. A great deal rides on prosecutorial judgement and integrity and selflessness.

Anonymous said...

The above link goes to the Executive Summary of the plea for clemency on behalf of the Norfolk four...four men wrongly convicted of a rape and murder who confessed to the crime. They were exonerated after many years in prison by DNA evidence.

The most fascinating part is why they confessed. A homicide detective who once inadvertently obtained a false confession retraced what in the interrogation led to the false confession and testified at the exoneration hearings. This man probably played a critical role in the exoneration of these wrongly convicted men. John Grisham and the Innocence Project also played critical roles in helping these men.

The identity of the real perpetrator has been known for quite some time, but getting the innocent guys out of prison was still an arduous task. The real perpetrator was in prison for a different crime...the DNA was a perfect match...etc...he confessed...

This case is most interesting for those of us who do not understand why people confess to crimes they did not commit.


William L. Anderson said...

Observer raises a very good and important question: Why do people confess to things they did not do? Indeed, Ann Coulter claims that a confession should trump everything else, and that once a person confesses, then that should be the end of it.

Many people have told me that no one would confess to something he or she had not done, yet I can tell you that people will do it for one of two reasons: (1) they become genuinely confused, as did young Martin Tankleff when police coerced a confession from him which he later renounced, or (2) they see little hope of being found innocent, and the penalties being offered them to "confess" are much less than the ones they would face if convicted at trial.

I have a friend in prison who pleaded to some things that he and even the prosecutors knew he had not done. However, he also knew that he was going to be prosecuted on "honest services fraud," a charge that is so nebulous and so hard to defend against that it is very, very rare that someone ever is acquitted when facing it. So, he decided that he would take the deal: be out in about four years instead of serving 40.

As I said before, when the goal of truth is thrown aside, then lies will rule the system, and that is what we see in the USA these days.

halides1 said...

I agree with Observer and Bill Anderson that the phenomenon of false confessions is real and deserves scrutiny. In some cases we can ascribe it to the impressionability of the person being questioned, due to youth or lack of intelligence (West Memphis Three). When I first read about this phenomenon some time ago, I was struck that some of the false confessors were tired and thought that they could just go home after confessing. If police can lie about what penalties a person will face for a crime (as happened in the case that Observer cites), they will always be able to elicit false confessions. I fear that we face a hard choice, namely, either living with a number of false confessions or putting some limits on subjects about which the police are allowed to lie.


Jim in San Diego said...

The third explanation is by far the scariest, not the other two:

Institutions we depend upon to protect our civil liberties betrayed us. The whys of this should be the subject of the most intense scrutiny and reflection.

The first explanation is not so scary, because it is so rare and, usually, ultimately defeated. (How many DA's really go to the trouble of manufacturing crimes, no matter what their ethics?)

The second explanation is not so scary, because there is a large, competent, "middle class" of attorneys who would have defeated someone like Nifong in this case also. Perhaps with less flair and finality, though.

But we all, and in every instance, rely upon our civil institutions to protect us from injustice. When they are AWOL, we need to fear.

Jim Peterson

Anonymous said...

As long as the police possess the power to lie and prosecutors retain unbridled power, we will continue to see false confessions, and the charging and convicting of people for crimes which they did not convict. One has to hope and pray that he or she is never in a situation that might be construed to be something that it is not which the police and prosecution can then (particularly if enabled by media hype) use all the powerd of the state to bring about incarceration.

The lacrosse case does show the power of having skilled, articulate attorneys - but as we all know, those come at a high price. That the boys parents were willing to scarifice all to prove their son's innocence was the difference. There are few who are in the position to do that or who can command the loyalty (and financial rsources) of friends as well.

One Spook said...

To Bill Anderson et al:

Lest anyone doubt my firm belief that Duke lacrosse players were subjected to great injustices and wrongs from multiple sources in the "lacrosse rape hoax," I would ask you to read my many comments I've made over the years at this blog.

In this comment thread today, Bill, you have made broad assertions that can only be reasonably described as extraordinary at best and are actually, hyperbolic in the extreme.

Here are examples:

"… the institutions of our society upon which [sic] depend for justice have broken down. The academy no longer stands for truth, and we certainly cannot see any attempt by the courts themselves to promote truth.

" … This is a prescription for tyranny, and that is what we have, and what will get get.

"I guarantee you that had Reade, Collin, or David spent any time at all in jail, that Nifong and Gottlieb and the Durham police would have found their own "informants" ready to testify."

"I believe we need to face the fact that in the United States, we no longer can count on prosecutors or police being honest in court. We have to assume that in most circumstances, they are lying …"

Those are incredible, overreaching statements and assertions that cannot be honestly or fairly concluded based on any reasonable assessment of criminal prosecutions in the US.

Of the thousand upon thousands of convicted criminals who languish in prison for crimes for which they are most assuredly guilty, the Innocence Project has freed some 200+ wrongly convicted persons. I applaud and support that group’s efforts. In a perfect world, all of us would like to believe that no innocent person would ever be convicted of a crime, but a tiny portion of those convicted are wrongly convicted. That problem needs to be addressed but it is not a situation that can be honestly described as, “ …we no longer can count on prosecutors or police being honest in court. “

Prosecutorial abuse happens; it is wrong; it is evil; and it needs to be addressed, but it does not even begin to approach “a prescription for tyranny” as you characterize it, Bill.

And this blog has done an incredible job in raising awareness of a single highly egregious example of widespread criminal and tortious misconduct by a rogue prosecutor and others, and has referenced a few similar prosecutions involving obvious misconduct.

But perhaps we all need to step back and put these very flagrant examples in proper perspective before we condemn the entire American legal system and academy.

There are tens of thousands of persons arrested for crimes (some very serious) each year. Of that number, only a fraction of those arrested are prosecuted on the actual charges for which they were arrested. I believe that if people were familiar with those actual statistics, they would be astonished. Recall that even the deeply flawed Nifong only prosecuted a small fraction of the rape cases that came before him while he was in office.

The main reason for this lack of prosecution is because our legal system provides a plethora of rights favoring individuals accused of crimes and places an enormous burden of proof and procedure on the state to balance the virtually unlimited resources and broad powers government can exercise over individuals.

Interestingly, I have observed that many of the same persons who seem deeply concerned about violations of the rights of the accused are outraged when an accused is released or acquitted due to a “technicality” --- laws in place specifically to protect the rights of the accused.

To me, such hyperbolic statements and assertions detract from the largely dispassionate, logical, and reasonable arguments that have been proffered on this blog.

One Spook

Anonymous said...

"That leaves the dishonest people in charge, as "dishonest prosecutors drive honest prosecutors" out of office. We then are left with increasingly more dishonest people."

I was the defendant once in a trumped up criminal case. I sat at the defense table and watched incredulously as the arresting officer lied through his teeth.

Later, when I expressed my shock to my attorney, she gave me that look of: "you naive child." And then she said: "It happens so often, there's a term for it: 'testilying.'"

Duke Prof

William L. Anderson said...

Believe me, I wish what I were saying were simple hyperbole. I would urge you to talk to a person who either has been in the federal criminal system or an attorney who has dealt with federal prosecutors.

Perhaps you should call Pete Anderson in Charlotte and ask him about the Vicki Sprouse case, in which a woman was convicted of "crimes" she clearly did not commit and who is likely to spend the rest of her life in prison. Perhaps he can tell you how the prosecutor lied to a judge on numerous occasions, how he managed to keep exculpatory evidence out of the trial, and how he and his minions intimidated witnesses.

I have talked to many, many people across the country and the problem is there. Yes, the majority of people in the system are "guilty," although the "crimes" often are consensual in nature, like selling drugs.

Much of my writing and research over the past seven years has involved the federal system and just how broad it is, and how easy it is for prosecutors to target whomever they choose. Indeed, a system like that in which prosecutors will determine after the fact than an action is "criminal" is close to ex post facto law.

By the way, Judge Andrew Napolitano of Fox News, who is outspoken in favor of constitutional protections, read my latest piece on "honest services fraud" and told me he fully agreed with my assessment that this law permitted prosecutors to engage in tyranny. So, while you may think it hyperbole, I can assure you that if you ever are targeted by federal prosecutors, you will understand just what tyrants they really are.

No justice, no peace said...

"During times of universal deceit, telling the truth becomes a revolutionary act."

a. Richard Brodhead
b. Mike Nifong
c. Barack Obama
d. Cathy Davidson
e. George Orwell

Please grade yourselves

No justice, no peace said...

Another Yale example: academia ≠ free inquiry/speech

"Disgrace: Yale removes Mohammed cartoons from book about … Mohammed cartoons..."

Wow, just wow...

Anonymous said...

Thank you, One Spook. I'm glad that at least some of us are still able to say "What is the situation, really?" instead of "Well, this anecdote fits my personal hypothesis and that just proves my personal hypothesis to be true." If we do not work to keep the fallacies and distortions out of our own thinking we really have no basis on which to consider ourselves superior to the Group of 88 and others who have merely gotten caught in different fallacies.

I think KC recently did a great disservice by discouraging readers from learning about and taking seriously the phenomena of confirmation bias, cognitive dissonance, and experimenter's regress - I am sure KC knows quite well that these phenomena are real and he would have been better advised to suggest, perhaps, places to learn about these phenomena that he considered more reliable, rather than simply casting aspersions on Wikipedia's reliability. If you don't see why, consider: the fact that Precious was doing athletic pole-dances at the Platinum Club on nights when she was supposedly in so much pain from the players' 'assault' that she requires multiple painkiller prescriptions was powerful evidence that her claims of assault were false. We knew about Precious' pole-dancing from a videotape made at the club by third parties and from H.P. "Fats" Thomas. Supporters of Precious used to deal with discussion of this evidence, not by addressing the question of "Is Precious really shaking her stuff at night and crawling around whining for pain meds in the day?" but purely by arguing that "Fats" Thomas was an unreliable source from which to learn about Precious' nighttime activities.

I think KC does a disservice to argue purely that Wikipedia is an unreliable source from which to learn about the fallacies that lead good people to adopt distorted views.

Anonymous said...

Bill Anderson, your hypothetical about Nifong having a "jailhouse informant" who would have had to change his story repeatedly is delicious. Well done. MOO! Gregory

One Spook said...

Bill Anderson writes @ 10:00 PM:

"I have talked to many, many people across the country and the problem is there."

I'd ask you to reread what I wrote Bill. I never contended that the problem of prosecutorial misconduct does not exist but rather, that the issue is not nearly as pernicious as your hyperbolic assertions would claim.

And I don't think that "Pete Anderson in Charlotte" would like to hear my opinion. Given that I've spent my entire adult life involved in real estate closings, I take a mighty dim view of anyone who believes that a real estate attorney's job is to "rubber stamp" real estate closings and ignore that others involved in that process might on occasion willfully commit fraud and/or abdicate their due diligence responsibilities.

In the meantime, I think I'll just do my best to follow the law and in particular, avoid "the 'crimes' [that] often are consensual in nature, like selling drugs."

One Spook

Anonymous said...

"'Disgrace: Yale removes Mohammed cartoons from book about … Mohammed cartoons...'"

"Wow, just wow..."

Stay tuned for future announcements. The "blasphemous" images might be published as "errata."

Duke Prof

One Spook said...

To the Anon @ 9:02:

I appreciate the "thanks," but my point was simply that I believe Bill, whose work I generally respect on this case, has exaggerated the problem of prosecutorial abuse. I would prefer that he or anyone else holding that view support their positions with objective facts rather than anecdotal examples.

If someone did that and made a cogent argument that such abuse was widespread, those who believe as I do might be better persuaded.

And, rest assured, I do not agree with your view that "KC recently did a great disservice by discouraging readers from learning about and taking seriously the phenomena of confirmation bias, cognitive dissonance, and experimenter's regress -"

Johnson didn't "discourage" anyone. If you want to establish a blog that covers those topics, feel free to do so.

One Spook

halides1 said...

One Spook,

I am not sure how one would go about quantifying how much prosecutorial misconduct goes on. I doubt that even an anonymous survey of prosecutors would be meaningful. Nor do I know of any way to determine what percentage of convictions are wrongful. On the other hand, even a single instance of capital punishment applied wrongfully is a terrible miscarriage of justice, even if it is anecdotal.

On the subject of prison snitches, I did not think much about it until I read John Grisham's "The Innocent Man." Now I give no weight to their testimony. Maybe we can concoct a "Grisham's Law" to go along with "Gresham's Law."


Gary Packwood said...

KC said...
...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.
Duke can't have a comprehensive SANE program without direct lines of communication with the DA's office.

The DA signs off on the SANE grant application thus creating a SART or Sexual Assault Response Team.

That team is comprised of SANE's, hospital directors and administrators, sexual assault victim advocates, law enforcement, prosecutors, judicial members, and any other professionals with a vested interest in assisting victims of sexual assault.

Have we ever seen the minutes from those SART meetings; the list of the names of the team members and the tie-in to Duke/Durham grant funded programs from the Violence Against Women Act?

Nifong was working alongside Ex. SANE nurse-in-training Tara Levicy and other members of the 'team' for a very long time before the lacrosse party.

It is the these 'relationships' created in the name of collaborations for grant funded programs that need to be investigated as routine policy.

Misarrange of Justice is but one of the sins that can take place in the name of collaborative efforts associated with grant funds that turn into paychecks whether it be in Durham or any other city with collaborative grant awards involving the criminal justice system.

Anonymous said...

In over half of the reported crimes in this country, the police never make an arrest. In crimes were someone is charged by the police, the case is dismissed 30-40% of the time by a big-city DA's office. This means the suspect goes free.

I have an article by criminologist John Dilulio, written just after O.J. Simpson was acquitted in 1995. Dilulio wrote that there are 100,000 O.J. Simpsons walking the streets. These are people as guilty of murder as Simpson who also beat the rap, or pled to a short prison term.

I can't tell you how many criminal trials I have followed were the prosecutor has to jump through hoop after hoop after hoop for years before the case comes to trial. These are cases with dead-bang guilty suspects through DNA, fingerprints, or possesing items belonging to the victims.

If you want an example, note the Christian-Newsom torture murders that took place in Knoxville Tennessee in January 2007. This case is in jury selection this week. The judge ruled that the jury will be selected in Davidson County (Nashville) and bussed to Knoxville. Anyone familiar with the demographics of Knox and Davidson counties will know that this ruling favors the defense. Judges do not always rule for prosecutors.

I don't like Nifong any better than anyone else who posts here. You might say that Nifong is still another criminal who didn't get his deserved punishment.


Anonymous said...

As I've stated before, for every Nifong-lite who has dealt with me, there have been many, many more on the up-and-up. By Nifong-lite, I mean a prosecutor who has gone outside a clearly marked ethical boundary. There may be one or two others who just didn't get caught! This is just anecdotal evidence, and I'd bet that different "cultures" exist in different offices.

My biggest problems have dealt with official government witnesses -- police, probation or parole officers, child protective service workers and the like -- who will unfairly elaborate on their testimony. I don't know how to quantify or even adequately describe this problem.


To the 9:02 anonymous -- I have posted three times in the last three days about Keohane and Davidson's fallacies in response to the Duke Conservative Union's data. That was the topic of Professor Johnson's last post. Somehow, you failed to discuss that topic, and you've managed not to discuss it in this post. Seems you've missed a great discussion of fallacies!

On another note, whatever you tried to communicate about H.P. "Fats" Thomas got garbled by bad grammar, poor logic, weed or something else. I read the paragraph 3 times and all I got was "xxxxxxx xxxxx xxxxx z zzz zzzzzzz xxxx xxxxxx xxxxx H.P. "Fats" Thomas xxxxxxx xxxxxx xxxxx." Also, you have consistently made a major error of fact in each of your posts. I thought that because you like to give advice to others that perhaps you'd also like to hear some constructive criticism. MOO! Gregory

Anonymous said...

Just wait. Nifong will sue you when he gets his law license back.

Anonymous said...

One Spook -

We'll have to agree to disagree on that point, then. Perhaps if KC was just an ordinary (even anonymous!) commenter on the blog, then his choice to respond only to one specific detail of the manner in which Triangle Scientist brought up the issues of confirmation bias and other powerful fallacies, and completely omit any reply to the actual issues, would not be perceivable as a clear message that the issues Triangle Scientist brought up are not important. But part of the reason that we come here in the first place to read what KC has to say is his gift for seeing and illuminating what's important, and for him to make a response that omits any substantive engagement with the issue sends a clear message that he does not view the issue as important.

Debrah said...

Oh topic, but I might have better luck with this bit of news we already knew anyway.

Nothing wrong with going beneath the silky veils of ardor.

Just don't invent such elaborate lies.

Just as James Coleman did regarding the metamorphosis and rediscovery of his Duke roots.

Why can't this reality ever be discussed?

As Stuart said, he lied.

It's always the lie that is most damaging.

I'm tired of seeing that obfuscating double-dipper get by with no commentary about how he played his hand.

What exactly is he owed?

I'm sick of it!

One Spook said...

To Chris @ 9:42 PM and MOO Gregory @ 1:42 AM:

I agree with you both that the problem of both prosecutorial abuse and governmental witness "freelancing" is difficult to quantify. Surely that is a lesson from this case that begs for some additional process apart from only a bar hearing as a remedy to investigate and illuminate such misconduct. I am not sure what that process might be, however.

Recall how difficult it was for the players' defense attorneys to even criticize Nifong publicly knowing they would have to deal with him in the future, and how the Bar investigation of Nifong that ultimately did take place was only approved by a slim one-vote margin by a NC Bar Committee.

And only after Brad Bannon skillfully revealed Nifong's illegal conspiracy and it became obvious to everyone on earth including Raife Sikes the barber in Ekhart Mines, that Nifong had lied to the court, did a judge finally address Nifong's conduct.

To DN @ 12:39 AM: Thank you for providing data that supports the idea that criminal prosecution is not nearly as "tyrannical" as some might presume.

To the Anon @ 9:01: Regarding your assertion that KC's response "omits any substantive engagement with the issue" two thoughts come to mind; (1) Nonsense; and (2) Please reread Gregory's final two paragraphs in his 1:42 AM comment cited above.

One Spook

Anonymous said...

News Flash from today's LA Times:

For Bruce Lisker, a 'surreal' return to society,0,5653343,print.story

* * *
After the judge's ruling last week, Lisker said inmates and staffers alike came up to congratulate him, many of them stunned that a "lifer" was getting out. He gave other inmates belongings that he said helped to keep him sane while in custody: his music player, CDs and a 10-inch TV.
* * *
The Los Angeles County district attorney's office has filed court papers ordering Lisker to appear in state court Aug. 21, even though a spokeswoman has declined to say whether the office intends to retry him. He has said he would welcome an opportunity to clear his name once and for all.
* * *

Debrah said...

Tracey Cline weighs in.

Defense lawyer is all for bias law

BY JOHN MCCANN : The Herald-Sun
Aug 14, 2009

DURHAM -- The state's newly signed Racial Justice Act aimed at addressing racial bias in the state's capital murder cases amounts to an opportunity for people convicted of capital murder to prove allege played a significant role in them being put on death row -- for example, the racial makeup of a jury could have caused bias.

If a judge agreed with that, he or she could replace a death sentence with a sentence of life imprisonment without parole.

"I think the Racial Justice Act is a much-welcome action," Durham defense lawyer Lisa Williams said.

Williams in February looked at murder cases in Durham over a five-year period, and she said the numbers bore out that the Durham District Attorney's Office was significantly more likely to select cases for capital prosecution when the defendant was black and the victim was white.

"Where you got the biggest pop was when the defendant was black and the victim was white," said Williams, who is representing Keith Kidwell, a black man charged with killing a white man. The death penalty no longer is being sought in that case.

District Attorney Tracey Cline said Williams' claim about prejudicial sentencing in Durham doesn't hold water.

"That's impossible, because in the last five years we have not tried anybody for capital murder," Cline said. "We have never used race as an issue or circumstance as to whether someone should face life or death."

Cline looked back over roughly the last 20 years, and she said there have been eight capital murder cases in Durham: six of those cases involved a black person killing another black person; one case involved a white person killing a black person; and another case involved a white person killing a white person -- examples that go against the notion that black people are more likely to get the death penalty for killing white people, the district attorney said.

Cline said her office gets a bad rap on account of not having pursued the death penalty in cases where the defendants were young and black and accused of killing another black person. That makes it seem like she and her assistant district attorneys are devaluing black life, Cline said. The reality is Cline and her assistants figure jurors won't send a young person to death row, or those in Cline's office think in terms of the young defendants being able to get their lives back on track.

Williams' contention that black people are more likely to get slapped with the death penalty when the victim is white may get tested when the murder trial for slain UNC student body president Eve Carson gets going. Carson was white, and her accused killers are black and from Durham. The case occurred, however, in Orange County.

State NAACP President William Barber has said black defendants are more likely to receive the death penalty for killing white people.

Debrah said...

You're right, Orlando. Everything is a good idea!

Durham has no worries that black perpetrators actually receive justice.

Let's put another trumped-up item just signed by the governor on the books.

A superfluous barricade of tissue which is supposed to keep the fantasy alive that more black defendents receive the death penalty at this time in our history.

Quite the contrary!


County's top judge likes racial bias law

BY JOHN MCCANN : The Herald-Sun
Aug 14, 2009

DURHAM -- The top judge in Durham acknowledges that the death penalty is rarely sought here. Yet the primary sponsor of North Carolina's newly signed Racial Justice Act was state Sen. Floyd McKissick Jr., a Durham Democrat.

Gov. Beverly Perdue on Tuesday signed the legislation that will give those facing the death penalty the power to challenge their convictions on the basis of race.

The impact of the Racial Justice Act may not be as glaring in Durham as in other North Carolina counties, said the county's chief judge, Superior Court Judge Orlando Hudson. The death penalty is rare in Durham, because murder cases here get thorough looks before they're deemed capital cases, he said. That said, the judge believes the Racial Justice Act is a good law.

"Overall, it's a tremendous piece of legislation," Hudson said. "Once you carry out the execution, you can't reverse that sucker."

It should be pointed out that Durham is a diverse community where people of color hold many influential positions: Hudson is black. District Attorney Tracey Cline is black. Durham Police Department Chief Jose Lopez Sr. is Hispanic.

In addition, both the chairman of the Board of County Commissioners, Michael Page, and the mayor, Bill Bell, are black. The superintendent of the school system, Carl Harris, is black, and the chairwoman of the school board, Minnie Forte-Brown, is black.

Kentucky is the other state in this country with a similar law aimed at thwarting racial bias in death-penalty cases.

In North Carolina, there are 163 inmates on death row, and most of them are black, said Jeremy Collins, campaign coordinator for N.C. Coalition for a Moratorium, an organization focused on pausing executions while state legislators reform capital punishment.

North Carolina is an old slave state with a history of inequities as it relates to executing black people, Hudson said. Civil rights lawyer Al McSurely in June on the steps of the Durham County Judicial Building made the same point during a state NAACP press conference pushing for passage of the Racial Justice Act.

jamil hussein said...

another example of "racist" hate crimes..Gang88 mentality is going on strong. Reminds of those fake "conservative activists" (bused by ACORN or unions) carrying Nzai-symbols in town hall meetings.

"Black Man Pleads Guilty to Posing as Obama-Hating White Supremacist on Facebook"

Hart admitted creating a name and using a white supremacists' photo to pose as a white man who planned to kill blacks because Barack Obama had been elected president...

Debrah said...

Oh good.

Nifong has a playmate.

Anonymous said...

"To the Anon @ 9:01: Regarding your assertion that KC's response "omits any substantive engagement with the issue" two thoughts come to mind; (1) Nonsense; and (2) Please reread Gregory's final two paragraphs in his 1:42 AM comment cited above."

In response to (1): Are you intending this response to mean "I decline your invitation to agree to disagree on this point; I will never give up until I've shouted you down on this point where we disagree, completely ignoring the points where we already agree"? To put it another way: Are you going to assert that William Anderson is wrong to describe the US judicial system as so thoroughly untrustworthy on the basis of anecdotal evidence but entirely deny that confirmation bias plays any role whatsoever in his coming to and maintaining that conclusion?

In response to (2): Exactly what do you think is worthy of attention in those paragraphs? Were you hoping I would be incensed by his inability to comprehend what I wrote about "Fats" Thomas, or indignant at his suggestion that "weed" is responsible for his inability to grasp my point? (No on both counts, for the record. It's possible that weed is responsible for Gregory's failure of comprehension, but only he would be able to confirm or deny it.) I find interesting his claim that I have "made a major error of fact" in each of my posts; I wonder whether he can document these "major errors", and if he attempts to catalog them, how many posts from other people he will erroneously attribute to me.

Triangle Scientist said...

Re: "To the Anon @ 9:01: Regarding your assertion that KC's response "omits any substantive engagement with the issue" two thoughts come to mind; (1) Nonsense; and (2) Please reread Gregory's final two paragraphs in his 1:42 AM comment cited above.

One Spook"

This is getting strange. First, KC blew off the comment. Ok, it's his blog, but the Wikipedia throwaway line by KC was stupid. He should know that there are many very serious folk who edit many Wikipedia entries. Of course there is nonsense out there, but not every entry is nonsense.

On the substantive issue, which both Gregory and One Spook say is nonsense (and thus I guess need not be taken seriously) the point suggested was simply this: if it is a universal of human behavior to credit evidence that supports arguments with which we agree, and discredit evidence that supports arguments with which we disagree, is it not then the case that malicious intent is, by Occam's Razor, unnecessary to explain say Davidson's "evasions"?

To put a point on it, why always assume that those with whom you disagree are of evil intent?

William L. Anderson said...

Again, I won't back off my original point, and that is that prosecutorial and police misconduct is widespread. Now, I hardly am going to claim to be THE authority on this, and I don't mind the disagreement from others. Heck, I find me disagreeing with me myself from time to time.

You have to understand that the Duke case is not the only criminal case with which I have been involved. I am tied into a number of people prosecuted under federal criminal statutes, and I believe that the federal system is absolutely corrupt and dishonest. Former federal prosecutors with whom I have spoken tell me that the system is so bad that the good people get out because they cannot deal with the dishonesty any longer.

The problem is that these are people who are not accountable to anyone, and who never have to worry about having to face the brunt of the law. Remember Rudy Giuliani? He regularly leaked grand jury information to the New York Times and Wall Street Journal, a felony for which the sentence is up to five years in prison. Rudy did not have to worry about being indicted, did he?

In fact, he set a new standard for other federal prosecutors. I would urge those of you who are skeptical to talk to attorneys who defend clients in the federal system. They can tell you just how bad it is, and in my book, it is tyrannical and not worthy of this country, or at least what this country supposedly used to be.

It is my opinion, but I will stand by it.

Anonymous said...

you are kidding right...on davidsons reputation

people recognize her as a teacher in search of some attention. not a researcher or scholar, nothing new out of her in years. but then she gave herself a technology title, and even this does not give her any street creds. so she goes back to writing about a grading practice people tried in the seventies. gmab absolutely nobody takes her seriously.

Debrah said...

In this CBS coverage from September 2007.....

.......this is how I wish I could remember James Coleman.

When I could praise him and tell local newspaper editors how they should follow his lead and what a wonderfully objective man he is.

Watch this entire short recap for a glimpse of Mikey back then, alone.

And indeed, praise James Coleman in his clean-shaven-guest-on-all-the major-networks-days when he seemed to be a voice of reason.

But don't ever gloss over how he changed later on and became an apologist for the awful antics of the Gang of 88.

The entire story must be told and must be discussed honestly.

Anonymous said...

Triangle Scientist said..."To put a point on it, why always assume that those with whom you disagree are of evil intent?"

I agree this applies to Davidson to a certain extent and even more so to Coleman. Deborah has bemoaned "how he changed later on and became an apologist for the awful antics of the Gang of 88". This after she calls him "a wonderfully objective man" . I guess at some point Satan got hold of him.

Perhaps he has always been true to himself regardless if his opinion agrees with KC Johnson or Deborah.

Anonymous said...

Anonymous at 2:21 said

people recognize her as a teacher in search of some attention. not a researcher or scholar, nothing new out of her in years. but then she gave herself a technology title, and even this does not give her any street creds.

This comment is ridiculous. You might not like Davidson's work or disagree with it, but not with the fact that she's not productive. Here is the list of her publications pulled directly from her bio at Duke:

C.N. Davidson and David Theo Goldberg. The Future of Learning Institutions in a Digital Age. 2009.

"Olaudah Equiano, Written by Himself". Novel.forthcoming forthcoming.

Closing: The Life and Death of an American Factory. W. W. Norton, 1997.

Thirty-Six Views of Mt. Fuji: On Finding Myself in Japan. Dutton-Signet (Penguin USA), 1993.

The Book of Love: Writers and their Love Letters. Pocket/Simon and Schuster, 1992.

Ideology and Genre: The Rise of the Novel in America. Fourth Annual James Russell Wiggins Lecture in the History of the Book in American Culture, Worcester, Mass: American Antiquarian Society, 1987.

Revolution and the Word: The Rise of the Novel in America. Oxford UP, 1986.

The Experimental Fictions of Ambrose Bierce: Structuring the Ineffable. U of Nebraska P, 1984.

Essays/Articles/Chapters in Books

"Critical Fictions." PMLA (Sept. 1996)

"Preface." A New England Tale by Catherine Maria Sedgwick. Oxford UP, 1995.

"The Question of Accuracy: Or, Why Women's Studies?." The European English Messenger (1995)

"Loose Change: Presidential Address to the American Studies Association." American Quarterly 46 (June, 1994): 123-38.

"Tatami Room." Eloquent Obsessions: Writing Cultural Criticism. Ed. Marianna Torgovnick. Duke UP, 1994.

"Preface." Kelroy by Rebecca Rush. Oxford UP, 1993.

"The Novel as Subversive Activity: Women Reading, Women Writing." After the Revolution: Further Explorations in the History of American Radicalism. Ed. Alfred F. Young. Dekalb: Northern Illinois UP, 1993.

"Love Letters for My Grandmother." The Women's Review of Books 10.2 (Nov. 1992): 12 and 13.

"PH Stands for Political Hypocrisy." Academe: The AAUP magazine (Sept. 1991)

"Photographs of the Dead: Cindy Sherman, L.J.M. Daguerre, Nathanial Hawthorne." SAQ 89 (Fall 1990): 667-701.

[Edited for length. See full list here:]

It is true that Davidson's production decreased in the 2000s, but that is because this period (1998 to 2006) she was in the college's administration, serving as the Vice Provost for Interdisciplinary Studies. In 2002 she co-founded HASTAC (Humanities, Arts, Science, and Technology Advanced Collaboratory, pronounced "haystack"), an organization dedicated to understanding the impact of technology on learning and education. This is far afield from her original scholarly concentration -- book history and the novel during the early American Republic -- and demonstrates a commitment to lifelong learning and a scholarly response to social change that is the hallmark of an engaged mind.

This is not to disagree with any of Prof. Johnson's recent critiques regarding Davidson's statements (nor is it to agree with them), but simply to say that the above commenter was simply wrong when he or she implied that Davidson is not a productive and innovative scholar. You might not like what it is she produces, or disagree with her innovations, but she is certainly an active and engaged scholar.

Said another way, don't throw the baby out with the bathwater.

Have a good evening everyone, --ss

Debrah said...

As can be seen here Timothy Tyson will be a guest on the local PBS affiliate.

This program is hosted by William Friday who is now quite old. He used to be the president of the University of North Carolina system before Charlotte billionaire C. D. Spangler, and before now-president Erskine Bowles who was the White House Chief of Staff for a few years under Clinton.

Bill Friday is one of the last of his breed.

A truly folksy man whom everybody likes and you already know what that means.

He never says anything controversial and despite the fact that he is so revered, he's probably never really done anything controversial.

His program plays host to various characters around the state and on August 28th, one Timothy Tyson will be his guest.

Wouldn't it be nice to have Friday ask this despicably oleaginous parasite some real questions about his career?

Perhaps readers should refresh their memories by listening to these from Tyson once again.

Will anyone make an effort to watch this interview online?

Will Triangle readers watch the show on the tube?

Will anyone bother to comment about Tyson's appearance and raise any objections at all regarding a publicly-supported station hosting such a person without touching on his role in the Lacrosse Hoax?

A lot of you like to pooh-pooh the guy after KC or someone else mentions Tyson and some will call him "craven", but will any of you actually do anything?

There's a lot of proof that the guy has a lifetime of fabricating and whipping up discord using race and class issues.

What a difference it would make if some effort were actually put into going after Tyson in a substantive way.

Though he is not technically a member of Duke's Gang of 88, his words and his deeds arguably did more damage to Reade, Collin, and David, locally, than the entire 88 combined.

A Duke Dad said...

To : Triangle Scientist & her/his 9:01 Sycophant / alter ego -

Your logic is compelling ... NOT !

You say:

1. KC was stupid.
2. Wikipedia is an authoritative reference.
3. Stating a logical principal obviates the need to show it applies to the specific point under discussion.
4. Sufficient ad hominem attacks constitute compelling debate.

Your assertions fly in the face of:
- Most wikipedia articles can be changed by anyone.
- Editors of specific controversial articles frequently have a strong bias -- eg. global warming.

- You have NOT shown how ANY of the principals you recite apply to the issues being debated.
- By resorting to personal attacks, you show your arguments are without foundation.

By far, I am most amused that you, without any supporting argument, disparage a well regarded and highly published professor of history regarding what is a reliable source.

Debrah said...


This Steven Matherly is part of Justice4Nifong.

And this letter is one of the most hyperbolic and dishonest ones you'll read.

Durham, like Chicago, Detroit, and Washington, D.C. is basically run by the black residents and for the black residents.

Even though the population is about split, the squeaky wheel always gets the grease.

The country got a chance to see how Durham operates, but first and foremost, for whom.

This letter is insanely dishonest and is illustrative of the kind of individual who would be a part of any group called "Justice 4 Nifong".

And by the way, Matherly is white.

Perhaps suffering from an incurable case of Stockholm Syndrome.....or from the Mikey disease---race pimping for profit.



Changing history

You've got to love the knack so-called liberals, progressives and DCVB types have for turning a history of prejudice and violence into something positive about Durham.

Pauli Murray was subject to a brutal system of segregation and discrimination that continues to plague poor and minority citizens to this day. Despite Brown v. Board of Education, the 1965 Voting Rights Act, protests, water cannons, snarling dogs, redlining, unemployment and police brutality, we are asked to temper our rage. We are told that a reasonable person would forgive and forget.

When the "ghettos" erupt in spasms of violence, black folks are portrayed as ingrates and malingerers. It really does get to be just a tad annoying when the same folks with their boot on your neck lean over and say "If you promise to behave, I'll loosen your shackles a little."

Enough with the self-serving platitudes like "Durham was a place in which blacks could also become prosperous.

Prejudice was still prevalent, but there were also more opportunities for blacks and other minorities that weren't available elsewhere." (Yeah, and you can sneak out to play basketball at the colored college across town if you want!)

They say ignorance is bliss. But willful ignorance is propaganda. And propaganda is designed to mislead.

I'm all for love, brotherhood and forgiveness. But if we build our future together on a foundation of lies, we will never overcome our differences and the "promised land" will forever be only a dream.

August 17, 2009

Duke 1965 said...

Debrah @ 4:12 said:

"But don't ever gloss over how he changed later on and became an apologist for the awful antics of the Gang of 88."

Debrah, I don't recall Prof. Coleman ever being an apologist for the antics of the "Gang of 88". Are you referring to his letter to the Chronicle where he disagreed with Stuart Taylor's conclusion that the Coleman Report was a "stunning vindication" of the lacrosse players, and opined that most of the Duke faculty cared deeply about their students? That's hardly being an apologist for the "antics" of the more radical professors.

Debrah said...

TO "Duke 1965"--

You and I might disagree on the magnitude of mendacity and the 180-degree flip-flops utilized by James Coleman on this issue.

For the most part, I don't give a damn about Coleman and how he changed his attitude when he was subsequently given a more feathery perch at Duke's law school.

And as a Duke law school student explained to me, his wife, who is basically a superfluous entity there, was also given a cushy spot.

To quote the law student, "If Professor Coleman wasn't working at Duke, there would be no reason for her to even be there."

I have no interest in the machinations and the political maneuvers people perform with regard to their careers; however, Coleman put himself out there as a voice of reason in the beginning.

He made defendant-friendly statements and was all over the late 60 Minutes' Ed Bradley with a scales of justice schtick.

Clean-shaven then.

No defense or hurrahs for the radical Duke faculty then.

He knew how KC and Stuart were going to characterize him in their book and each time they spoke with him, he chose to say nothing about any disagreement with their characterizations.

Coleman---although he's low-key as he goes about it---is pleased when he's getting national he was thanks to many who took him at his word then.

Later, he copped an attitude, grew a beard, and developed a decidely harder edge.

A kind of puffed-up bravado now..... he and his bird-face wife go about rubbing elbows with the non-juris-doctorate-holding Karla Holloway and others.

Indeed, his change has been subtle, but it has been palpable.

Stuart Taylor is a measured man and does not make statements such as he did about Coleman's behavior for no reason.

Let me advise you, in your leisure, to go to my little blog and scroll down to Stuart's photo. Click on the link under it.

This is his appearance at Duke in November 2007.

Listen to what he has to say about this matter.

Frankly, I don't care how Coleman feels about the case anymore. I praised him multiple times, openly, back in 2006.

But he changed.

The facts of the case didn't.

Anonymous said...

Like my daughter, Davidson has been "productive" making mudpatties.