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Posted 11/22/09

PLAYING WITH FIRE

Journalism students double as advocates for the wrongfully convicted

     For Police Issues by Julius (Jay) Wachtel.  About the only thing not in dispute is that a life violently ended in a dark corner of a hardscrabble Illinois town some thirty-one years ago.  On the evening of September 15, 1978, in the Chicago suburb of Harvey, a man sitting in a car was killed by a shotgun blast to the head. Neither his wallet, the murder weapon or any other significant physical evidence were recovered.  Within days officers arrested an 18-year old youth, Anthony McKinney.  The sole person convicted, he remains in prison doing life without parole.

     Fast-forward to 1999.  As a youth, Wayne Phillips had testified that he saw McKinney shoot and rob the victim.  Twenty-one years later, in a chance encounter with McKinney’s younger brother, he tearfully confessed that he had lied.  Phillips said that he and his friend Dennis Pettis, neither of whom saw the crime, were beaten by police into falsely identifying McKinney as the shooter (§34-38.)

     McKinney’s brother passed this on to the Medill Innocence Project at Northwestern University’s Medill School of Journalism.  (Northwestern’s law school hosts a separate Center on Wrongful Conviction.)  Under direction of the project’s founder, journalism professor David Protess, students collaborate with private investigators and lawyers to examine miscarriages of justice and “expose and remedy wrongdoing by the criminal justice system.”

Click here for the complete collection of wrongful conviction essays

     Medill’s investigation began in 2003.  It would be a tough slog.  Aside from what Phillips said, students had to deal with the unpleasant fact that McKinney confessed to the murder.  Although he recanted before trial – he said police beat him up – jurors didn’t believe him.  Considering the eyewitness testimony and his confession McKinney was lucky that the judge didn’t sentence him to death, the penalty that prosecutors sought.

     Yet there had been concerns about the evidence all along.  In a pre-trial statement to a defense investigator, Dennis Pettis confirmed that he and Phillips were forced to lie.  Unfortunately, Pettis made himself scarce and couldn’t be found in time for the trial (§39-44).  His sister said she overheard Pettis and Phillips complain about being coerced by police but wasn’t allowed to testify (§45-46).  Neither were two men who heard a local hoodlum named Anthony Drakes say that he was present when the murder occurred and that McKinney wasn’t involved (pg. 3).

     McKinney’s petition for post-conviction relief, filed last year, sets out compelling reasons for a new trial.  Phillips and Pettis gave affidavits swearing that they didn’t see the shooting (§34-44).  There is also a stunning videotaped statement by Anthony Drakes.  Drakes, who has since done time for an unrelated shotgun murder, admitted being present when a man named Roger McGruder robbed and shot the victim (but see 3/11/10 update, below.)  Other witnesses said that Drakes, McGruder and a third man, Michael Lane, were members of a robbery crew and that Drakes and McGruder blamed the killing on each other (§60-72).

     To win a retrial defendants must point to newly-discovered evidence that would have likely resulted in acquittal.  After students videotaped Drakes the Cook County State’s Attorney sent two prosecutors and an investigator to interview him.  Surprise!  Drakes recanted, claiming that he told the students nonsense because that’s what they wanted to hear.  His motive?  Food and $100, most of which he used to buy crack.

     One of those students vehemently disagrees.  Evan Benn, now a reporter in St. Louis, said they gave a cabdriver $40 to take Drakes home and had no idea that he intended to hop out after a few blocks and keep the change.

     Students didn’t interview McGruder.  But they apparently spoke with Michael Lane. According to a report filed by State’s Attorney investigators, Lane said that the students were anxious to clear McKinney because they wanted a good grade.  To that end they bought him an expensive meal, gave him $50-100 and even had a girl flirt with him.  In the end Lane told the students “I didn’t have shit to do with the murder.”  He attributed rumors of his and McGruder’s involvement to McKinney’s brother, supposedly a member of a rival street gang.

     Earlier this year prosecutors took the extraordinary step of issuing a subpoena demanding that Medill and its students turn over their entire work product, including notes, recordings, e-mails and even student grades.  Citing Illinois reporter’s privilege, Medill refused.  In a response brief the State’s Attorney insisted that the materials were needed to help determine whether witnesses were biased by cash payments and the students’ desire for good grades.  Prosecutors also argued that the Medill Innocence Project wasn’t a protected activity under Illinois law as it was “an investigative agency, as opposed to a news gathering agency intent on publishing the news.”

     Medill’s reply was unusually blunt.  Defining its students’ work as investigative journalism, it accused prosecutors of displaying a “surprising lack of comprehension” and “disturbing lack of sensitivity” to the First Amendment and Illinois law.  Medill also chided the State’s Attorney for filling its brief “with off-point and distracting arguments.”

     That caught the judge’s eye.  In a recent hearing she severely chastised Medill’s lawyer for infusing his response with sarcasm.  That things got this heated is understandable; after all, by issuing the subpoena the State was honing in on the project’s core weakness.  Unlike most innocence projects, which are directed by attorneys and staffed by law students, Medill can’t avail itself of attorney-client privilege, a protection that’s far more powerful than a reporter’s shield.  That naturally places it and its clients at a disadvantage.

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     Yet is Medill really doing journalism?  Investigative journalism isn’t normally associated with taking sides, and certainly not with tailoring facts to support a particular position.  Would students pursue leads even if they jeopardized their client’s case?  Would they publish their findings?  Looking through their comments on Medill’s website one thinks not: they might look like impartial fact-finders on the outside, but on the inside they’re rooting for their client.  Although they’ve scored some impressive victories authorities are now pushing back, and if Medill persists in straddling legal aid and journalism it risks doing both poorly.

     Meanwhile the mind-numbing legal process is on a brief furlough.  Whether prosecutors get the access they seek won’t be known until January, when a ruling on the subpoena is expected.  One day there will be an evidentiary hearing and possibly a new trial.  But whatever happens, uncertainty about what took place on the mean streets of Harvey three decades ago will doubtlessly linger.  Indeed, with all the legal fisticuffs, self-serving moves and high-minded rhetoric, the victim of the shooting, a security guard named Donald Lundahl, has been all but forgotten.

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What if There’s No DNA?

WHAT IF THERE’S NO DNA?

When biological evidence is lacking, the wrongfully convicted may be stuck

     For Police Issues by Julius (Jay) Wachtel.  It’s the rare prosecutor who will admit a grievous error.  Rarer still are those who seek them out.  Dallas D.A. Craig Watkins is such a man.  Elected in 2007 after a string of exonerations shocked Texas, Watkins formed a “conviction integrity unit” to undo the damage.  Using post-conviction DNA testing, which Texas authorized in 2001, Watkins quickly came up with more innocents rotting away in prison.  A few months ago the total was twenty.

     Now it’s twenty-two.

     Unlike most Dallas County exonerations, which are based on DNA, physical evidence was absent.  Claude Simmons and Christopher Scott had been convicted of a 1997 murder based solely on the eyewitness testimony of the victim’s wife, who was present when the killing occurred.  The distraught woman had no reason to lie.  Why did she err?  One of the men (both suspects were petty drug dealers) was sitting handcuffed in a police interview room when she walked by, leading her to think that he was involved.  That threw off police, and it went downhill from there.

     Five years ago a former suspect in the case, who was serving thirty years for aggravated robbery, made a detailed confession and implicated a partner.  University of Texas students worked with the D.A. and police to re-investigate the case.  It turned out that the girlfriend of the convict’s partner originally told defense lawyers that he admitted to the crime.  But the trial judge wouldn’t allow her statement in, nor those of two other witnesses with information to the same effect.  It took six minutes for jurors to wrongfully convict, and twelve years for the truth to prevail.

Click here for the complete collection of wrongful conviction essays

“I could never admit to something I didn’t do.”

     On October 28, 2009 Dewey Bozella was finally free.  A sturdy-looking man of fifty, he had been in prison since 1983 for murdering an elderly woman in Poughkeepsie, New York.  Posing with his spouse, a middle-school teacher he married in 1996 while incarcerated, Mr. Bozella smiled for the cameras, thanked everyone and walked away.  He was looking forward to dinner; his wife was making his favorite, lasagna.

     Sad to say, had he played ball with the system he would have been released long ago.

     Mr. Bozella was convicted on the testimony of two criminals seeking deals on their own unrelated cases.  His first conviction was set aside in 1990 because members of his race -- Mr. Bozella is black -- were improperly excluded from the jury panel.  Before the second trial prosecutors offered a plea bargain and early release.  That, however, would have required that Mr. Bozella confess.  Like another innocent yet hard-headed man, Darryl Hunt, Mr. Bozella took his chances and, like Hunt, was convicted again.  Over the next few years he had several opportunities for parole, but these too would have required that he admit strangling a 92-year old woman with an electrical cord for the sake of her bingo money.  So he just said “no.”

     Mr. Bozella eventually asked for help from the Innocence Project, a pioneering organization at Yeshiva University that exonerates the innocent using DNA.  Unfortunately, as in a majority of violent crime, his case lacked DNA, so they handed off Mr. Bozella off to a private law firm that agreed to take on the case pro bono.  Miraculously, the complete police file was preserved by a retired lieutenant who thought the case would come up again.  It contained reports that Mr. Bozella’s original defense lawyers never saw.  A neighbor said that the intruder entered via a broken window -- not, as the jailbirds testified, through the front door.  A man spoke of a burglar who was planning to break into the victim’s home.  Most remarkably, a fingerprint found at the crime scene was matched to a prisoner doing time for the “nearly identical” killing of another elderly female who lived nearby.

     Finding evidence of Mr. Bozella’s innocence “overwhelming,” a judge ordered a new trial.  Although they insisted that they still believed in their case prosecutors declined to refile.  Mr. Bozella was let go.

     What’s to be done?  It’s difficult enough to exonerate with DNA.  But when biological material is lacking -- estimates are that suspect DNA is available in no more than a quarter of violent crime -- freeing the innocent can prove daunting.

     “CSI” isn’t always useful.  In the real world there is often nothing beyond an eyewitness or a confession.  Consider, for example, drive-by shootings, where there may be no physical evidence other than bullets in a victim’s body.  Balancing the need for witness ID against its pitfalls, some jurisdictions, including Dallas County, now require that photographic lineups be administered sequentially, one photo at a time, by an officer not involved in the case.  Dallas PD goes so far as to prohibit showups (one-on-one field identifications soon after a crime occurs) unless a dangerous suspect might otherwise have to be released.  Texas State Senator Rodney Ellis proposed tougher rules, banning showups altogether and requiring that all confessions be recorded in their entirety.  Others have suggested that statements by self-interested parties such as jailhouse informants be inadmissible unless corroborated.

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     Whether to protect the finality of the process or, as seems more likely, to avoid political embarrassment prosecutors often keep hammering away, opposing the most worthy appeals and requests for hearings with fanatical resolve.  Whatever remedies are chosen, perhaps the most fundamental is the one most easily overlooked.  As they relentlessly went after Mr. Simmons, Mr. Scott and Mr. Bozella there was something very basic that the authorities forgot.  Doing justice means more than just securing a conviction.  A lot more.

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Guilty Until Proven Innocent     Is a Case Ever Too “Cold”?     The Tip of the Iceberg     No End in Sight

Playing With Fire

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“Beyond DNA” by the Dallas Observer     Exonerating the Convicted Without DNA

HOUSE OF CARDS

Evidence isn’t better just because there’s lots of it: it must also be true

“I am an innocent man, convicted of a crime I did not commit.  I have been persecuted for 12 years for something I did not do.”

     For Police Issues by Julius (Jay) Wachtel.  That’s what Cameron Todd Willingham reportedly said as the poison dripped into his veins.  On February 17, 2004 he was executed by lethal injection for deliberately setting fire to his Corsicana (Tex.) home, resulting in the deaths of his three infant girls, Karmon, Kameron and Amber.  As it turns out, though, the fire was of accidental origin.

     Yes, that’s right.  Texas executed an innocent man.

     Willingham refused to plead guilty in exchange for a life term.  At his trial Corsicana’s fire chief and a deputy State fire marshal testified that an accelerant caused a “superhot” fire that quickly consumed the home and crazed its windows.  But several months before the execution a renowned fire expert retained by the Chicago Tribune called the officials’ testimony bunk and said that the blaze was accidental.

     Two years later the Innocence Project announced that a distinguished scientific panel concluded that the Willingham fire was indeed accidental.  A common phenomenon known as “flashover” was blamed for setting the floor on fire, thus lending the appearance that accelerants were used, while the crazing was caused by firefighters pouring cold water on hot glass.  After reviewing the report a Texas state fire marshal who helped on the Willingham case admitted that he and his colleagues got their science wrong:

“At the time of the Corsicana fire, we were still testifying to things that aren't accurate today.  They were true then, but they aren't now...Hurst [the Tribune’s expert] was pretty much right on...We know now not to make those same assumptions.”

     Too late!  The consequences of their error couldn’t be taken back.  Still, the forensic testimony had only “proved” that a crime had been committed, not by whom.  For that the authorities turned to jailhouse stoolie Johnnie Webb.  A drug user with a serious criminal history, he testified that Willingham told him he set the fire to cover up injuries that one of the girls sustained in a beating by her mother.  Webb later tried to recant his words, but to no avail.

Click here for the complete collection of wrongful conviction essays

     To convince jurors that Willingham was capable of killing his own children prosecutors got a psychologist and a psychiatrist to testify that he was a sociopath.  Known in local circles as “Doctor Death” for his ability to secure convictions, the psychiatrist was later expelled from the American Psychiatric Association for ethical misdeeds.  By then, of course, the trial was ancient history.

     In 1993 three Arkansas teens -- the West Memphis Three -- were convicted of the brutal murder of three boys in what police and the media quickly termed a “Satanic ritual.”  The victims had been stabbed to death and dumped in a wooded area.  Their bodies were covered with wounds and one of the boys’ genitals was removed.

     There were no obvious suspects.  However, the cult-like appearance of the crime drew suspicion on a local teen, Damien Echols, 18, and his two disciples, Jason Baldwin, 16, and Jessie Misskelley, a mentally retarded 17-year old.  Echols dressed in black, listened to heavy metal music and affected a Goth-like demeanor.  He also bragged about practicing the Wiccan religion.

     Witchcraft!

     Police zeroed in on the weakest link, Misskelley.  After hours of isolation Misskelley broke, giving a fantastic, rambling confession in which he admitted helping Echols and Baldwin kidnap, sexually abuse and stab the boys.  He also accused Baldwin of cutting off a victim’s penis with a knife (the transcript of the confession, which was the only part of the interview that police recorded, is here and here).  Misskelley’s account was replete with inaccuracies, forcing officers to repeatedly step in and offer suggestions (at one point he said that the killings happened at noon, while the victims were in school.)  Misskelley later recanted but it was too late.  Tried and convicted, he got life plus forty years.

     Echols and Baldwin were tried next.  Misskelley refused to testify, so there was little hard evidence against the pair (their legal briefs, which include detailed accounts of the trial, are here.)  A medical examiner testified that some of the wounds were caused by a serrated blade; a knife with a serrated blade was pulled from a lake behind Baldwin’s home.  Echols was also said to have such a knife, which is hardly a unique item.  Much was also made of his manner of dress and preoccupation with the occult.  Dale Griffis, supposedly an expert in such matters (his degrees are by mail order) testified that the prosecution’s evidence was consistent with the profile of a ritual killing.  And so on.

     Given the weakness of the case against Echols and Baldwin witnesses were badly needed to directly connect them to the crime.  Prosecutors found three.  Two girls, one twelve, the other fifteen said that they heard Echols brag about the killings at a baseball game.  A jailhouse informer, Michael Carson, testified that Baldwin admitted he cut off a victim’s penis and sucked on its contents.

     Jurors convicted both.  Baldwin got life without parole; Echols, death.

     At this writing the West Memphis Three have been imprisoned fifteen years.  Their current lawyers have sought hearings and retrials based on inadequate representation, admission of improper evidence, and misconduct by prosecutors and jurors (the foreperson at the Echols/Baldwin trial supposedly brought up Misskelley’s confession during deliberation.)  Their briefs contain highly detailed point-by-point rebuttals of the prosecution’s evidence.  For example, what the girls heard Echols say wasn’t intended to be taken literally but was directed at youths who were taunting him as being the killer.  Well-known forensic experts have debunked the ritual-killer theory, offering convincing proof that the wounds and castration were caused by animals.  And the jailhouse informer that fingered Baldwin was denounced as a liar by his counselor and members of the jail’s custody staff.

     After fifteen years on death row, Echols will soon learn whether he’ll get a new trial.  Meanwhile Baldwin and Misskelley are waiting for a court to decide about habeas hearings.  Considering how slowly the wheels of justice are turning, by the time the three get to the Federal courts they’ll be old men.

     That unholy alliance of junk science, character assassination and jailhouse informers that figured prominently in the Willingham and West Memphis Three was also responsible for the conviction of Bruce Lisker (see “Never Say Die,” below).  Lisker was recently ordered freed by a Federal judge after serving twenty-six years for a crime that by all appearances he didn’t commit.

     These cases share another characteristic.  From the bloody footprint in Lisker, to the “arson” testimony in Willingham, to the ritual castration in the West Memphis Three, virtually every piece of prosecution evidence that was used in court has been proven false or highly misleading.  There was a bloody footprint, but it wasn’t Lisker’s.  There was no arson (hence no crime) in Willingham.  The child victim allegedly castrated by Baldwin wasn’t, thus refuting both Misskelley’s confession and the testimony of the jailhouse snitch.

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     How could things go so wrong?  Pressures to solve serious crimes can cause the theory of a crime to form prematurely, leading authorities to uncritically gather evidence that is consistent with that notion regardless of its merit or plausibility.  As statements, objects and observations accumulate they reinforce and lend weight to each other, deluding cops and prosecutors -- and ultimately, jurors -- into believing that they accurately depict what they purport to depict.  By trial’s end, the cumulative weight of all that evidence makes other explanations seem highly unlikely.

     In fact, all that’s been built is a house of cards.  Put another way, it’s like trying to come up with the number one by adding up a string of zeroes.  In the highly consequential world of criminal justice, that can easily lead to tragedy.

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Wrong Place, Wrong Time, Wrong Cop     Fewer Can Be Better     Accidentally on Purpose

Better Late Than Never II     Wrongful and Indefensible    False Confessions Don’t Just Happen

Cooper:  Dead Man Walking

Willingham: DOJ: Texas Executed an Innocent Man     Forensics Under the Gun

Lisker:  Never Say Die

West Memphis Three:  The Witches of West Memphis      Can We Outlaw Wrongful Convictions?

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Texas Forensic Science Commission on the Willingham case

DOCUMENTARIES ABOUT THE WEST MEMPHIS THREE

Paradise Lost (1996)     Paradise Lost 2:  Revelations (2000)

NEVER SAY DIE

When should prosecutors quit clinging to a case?

     For Police Issues by Julius (Jay) Wachtel.  On August 13, 2009, after a decades-long battle to prove his innocence, Bruce Lisker was a free man, at least for the time being.  Imprisoned at seventeen, he had served twenty-six years for murdering his mother.  His release was prompted by the findings of a Federal magistrate who concluded that Lisker had been irreparably harmed by an ineffective defense, due process violations and “cumulative prejudice.”  A Federal district judge agreed and ordered that his conviction be set aside.

     But the L.A. County D.A. wasn’t done with him.  Nine days after leaving State prison Lisker was re-arraigned in Los Angeles County Superior Court.  A retrial (actually, re-retrial, but who’s counting?) is pending.

     Rewind to March 10, 1983.  Only hours after Lisker allegedly found his mother stabbed and bludgeoned to death, police were already dismissing the 911 call (“Help me, please! I need an ambulance right now...Hurry!... My mom -- she's been stabbed!  She's been stabbed!”) as the transparent attempt of a murderous youth to cover up his heinous deed.

Click here for the complete collection of wrongful conviction essays

     There was reason to be wary of Lisker.  A drug user and general n’eer-do-well with a violent temper, the high school dropout was reportedly strung out on meth when cops arrived and had to be handcuffed and confined to a patrol car.  An adoptee, Lisker had spent time in a home for troubled youths and was once arrested for throwing a screwdriver at a motorist in a road-rage dispute.  But what most concerned LAPD Detective Andrew Monsue was that the boy and his mother frequently argued; indeed, at the time of her death Lisker lived alone, his apartment, car and living expenses paid for by his weary parents.

     Only problem was, precious little tied him to the crime.  Monsue, who had previous run-ins with the youth, considered him “a loudmouth -- an in-your-face little punk.”  Examining the scene, he concluded that Lisker could not have seen his mother’s body through a window as he claimed. Rather than simply forcing the back door open, as an innocent son might have done, Lisker dismantled a window so that he could climb through.  There was also a bloody footprint that police thought matched Lisker’s shoe.

     Lisker demanded a polygraph.  He got one.  While the results aren’t admissible in court, the examiner concluded that his subject was being deceptive.

     Monsue arrested Lisker for murder.  Yet significant clues pointed elsewhere.  Lisker had a dope-smoking, mentally disturbed friend named Mike Ryan.  According to Lisker’s father, Ryan, also 17, unexpectedly came to their home the day before the murder and asked to do chores for money.  The victim turned him away.  Ryan soon wound up in Mississippi, where he was arrested for housebreaking.  His story, first related to Harrison County (Miss.) deputies, then personally to Monsue, was nothing short of astounding.  Not only did he confirm visiting the Lisker residence just like the father said, but he admitted stabbing someone on the very day of the murder!  (He insisted it wasn’t the victim -- it was another man with whom he got into a knife fight.)

     Then something even more remarkable happened:  Detective Monsue declared Ryan “convincingly cleared” of the killing (pg. 5).  Exactly why remains hard to say.  One possible reason is that Monsue missed finding Ryan’s extensive criminal record, including a conviction for robbery with a knife less than a year earlier, because he entered an incorrect birthdate into the police computer.

     Ryan was sure fond of knives!  Unfortunately he committed suicide in 1996.  His mother later said that she always suspected him of being the killer.

     With the evidence against Lisker so shaky, a confession would sure come in handy.  Coincidentally, prison inmate Robert Hughes, an unbalanced character with a history of snitching happened to be in L.A. County Jail.  Hungry for a deal on his own sentence, he befriended Lisker.  Soon Hughes had great news:  Lisker admitted the killing!

     Lisker went to trial.  Within days his lawyer convinced him to plead guilty as a juvenile, making him eligible for release at age 25.  Lisker reluctantly provided a sketchy account of the crime.  However, authorities soon determined that he wasn’t suitable for placement at a youth facility, so he withdrew his plea and was retried.

     Energized perhaps by Lisker’s caving in, prosecutors aggressively went forward with their case.  They hammered on the “fact” that Lisker’s view of his mother’s body was obstructed.  They mentioned the squabbles.  They introduced the bloody footprint.  And they brought in jailhouse stoolie Robert Hughes.

     Lisker didn’t take the stand, so he never got to tell jurors that he didn’t do it.  What’s more, the judge wouldn’t let the defense point the finger at Ryan.  According to the Federal magistrate, the ruling could have gone in Lisker’s favor had the judge been told certain things: that Ryan had a violent criminal past, that Detective Monsue caught him lying about his comings and goings on the day of the murder, that he used a phony name to check into a Los Angeles-area motel shortly after the killing, and -- this one’s a real shocker -- that about the time of the murder a brief (misdialed?) call had been placed from the victim’s residence to a number “nearly identical” to that of Ryan’s mother (pg. 28).

     Lisker’s lawyer failed to challenge the prosecution about key aspects of its case.  Lisker really could have seen the body from outside the home.  The bloody footprint didn’t match his foot.  And there was more.  The victim’s husband testified that he gave his wife a large amount of cash, but police reported none was found in her purse.  That meshed perfectly with what the jailhouse informer told the jury -- that Lisker’s theft of the money precipitated the lethal argument with his mother.  In fact, the cash was still in the purse, buried deeply.  Discovered belatedly, it remains in the LAPD evidence vault to the present day, a silent witness to what in retrospect seems a tragic miscarriage of justice.

     That “missing” cash haunted Lisker even after his conviction.  When he came up for a parole hearing in April 1998 Detective Monsue informed the board that the man and wife who bought the victim’s home found money secreted in the attic, where Lisker assumedly hid it.  The husband later denied saying any such thing (pg. 2 of the link).  He also mentioned that, according to Monsue, there was “some question” as to whether Lisker or a friend committed the crime.

     LAPD Chief Bratton subsequently disavowed Monsue’s letter to the parole board.  No matter.  Lisker had already spent fifteen years in prison.  He would do eleven more.

     In 1992, nine years after his incarceration, knowing full well that he would never be paroled unless he accepted responsibility, Lisker told board members that, yes, he killed his mother.  It didn’t work.  He refused to meet with the board again until 1999, at which time he proclaimed his innocence.  That didn’t work either.

     Given the paucity of the evidence, Lisker’s eventual exoneration seems a foregone conclusion.  What’s most instructive, however, is the exceeding vigor with which local and State prosecutors opposed his getting another bite of the apple, eventually taking more than two decades of a man’s life before a Federal judge finally called a time-out.

     Why be so bullheaded?  Denial and fear of embarrassment must have played a part.  D.A.’s are political animals, and a faux-pas this serious could be plenty threatening.  Police had perhaps the most to lose.  Unlike prosecutors, cops aren’t absolutely immune from civil liability, and exonerations often breed sizeable lawsuits.

     Prosecutors like to deflect criticism by emphasizing the need to insure the “finality of the process”, meaning that once a judicial decision is made, it ought to stay made.  In Lisker’s case they turned to AEDPA, the “Antiterrorism and Effective Death Penalty Act of 1966,” a law that’s meant to bar abuse of the Federal habeas process by State inmates.  Had Lisker lacked a superb legal team its intricacies would have probably been insurmountable.

     Ironically, the one factor that most likely saved Lisker’s bacon was the involvement of another  cop.  Sergeant Jim Gavin, an LAPD internal affairs detective, was assigned to investigate Lisker’s complaint that Monsue lied to the parole board about the money.  His inquiry soon turned into a quest.  And when Gavin’s superiors shut it down, possibly because they didn’t like what he was turning up, Gavin talked to Lisker’s attorneys and the Los Angeles Times.  The paper’s detailed, multipart account of the case helped give Lisker the credibility and political legs to prevail.

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     What happened to Monsue over the letter?  Nothing.  Although Chief Bratton “withdrew” the document, declaring that it should not have been sent, LAPD cleared Monsue of wrongdoing.  Not so for Sergeant Gavin, who was disciplined for leaking information.  Later promoted to Lieutenant and awarded the Medal of Valor, Gavin sued the LAPD over harassment that he claimed was brought on by his work on the Lisker case.  A jury rejected his suit, as Gavin knew that leaking was wrong but did it anyway.

     Internal Affairs detectives can’t be expected to watch over officers on a daily basis.  For that there are field supervisors.  So where were Monsue’s?  The Assistant D.A.’s?  Given the consequences of making incorrect charging decisions, strong oversight is crucial, and all the more so in cases such as this, where there is scant corroboration and little forensic evidence.  And the buck doesn’t stop there.  Assuring that justice is served isn’t just a management function but the sworn responsibility of a community’s criminal justice leaders.  LAPD Chief Bratton and L.A. County D.A. Cooley were well aware of the controversy.  One word from them could have spared an apparently innocent man years in prison.

     Where were they?

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Accidentally on Purpose     The Tip of the Iceberg     Never Having to Say You’re Sorry

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To read more about the findings of Detective Jim Gavin and Paul Ingels, Lisker’s long-time defense investigator, click here and scroll down.

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