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Police Stumble in Evidence-Falsification Case

PASADENA, Calif. (CN) - Witness immunity does not shield detectives from liability over evidence in a murder investigation they are accused of falsifying, the 9th Circuit ruled Friday.

It's been 32 years since Dorka Lisker was found dead on the floor of her Sherman Oaks home with two knives in her back.

At the police station, Dorka's 17-year-old Bruce Lisker told Los Angeles police detectives Andrew Monsue and Howard Landgren that he had used pliers to break into the house because he could see his mother's body lying motionless on the floor through a siding-glass door.

Lisker was charged with the murder four days later on March 14, 1983. At his trial, the prosecution called Lisker's claim about seeing his mother's body from outside the house his "most condemning" lie.

Monsue had testified at Lisker's juvenile detention hearing that it had been "very, very bright" on the day of the murder, so bright that glare would have made it impossible to see clearly through the house's windows from outside.

Coupled with the detectives' testimony and investigation records about similarities between the bloody footprints inside the house and the muddy footprints outside it, a jury found Lisker guilty of second-degree murder.

Lisker was in prison 26 years before he finally persuaded a federal judge in 2009 that his due-process rights had been violated based on the admission of falsified evidence.

The evidentiary hearing on Lisker's petition in Los Angeles included meteorological charts and expert testimony that the court found "overwhelmingly" proved that it had not been bright and sunny on the morning of the murder.

Lisker also presented witnesses who testified to a second set of footprints outside and inside the house whose pattern did not match Lisker's shoes.

Though California insisted that Lisker was still their man, the state opted not to retry him and Lisker filed a civil complaint that December.

The judge presiding over that case advanced only Lisker's falsification-of-evidence claim and his municipal liability claim, also known as a Monell claim.

Monsue and Landgren appealed after the court denied them absolute witness immunity concerning the investigative materials Lisker accuses them of falsifying.

The 9th Circuit affirmed Friday that immunity from pre-testimony conduct "is not limitless."

Writing for a three-member panel, Judge Andrew Hurwitz cited rulings in similar cases by sister circuits that distinguish "between conspiracies to testify falsely, which are immune, and manufacturing a false tape-recorded interview and providing hush money to a would-be witness, which are not."

"The materials in the Murder Book are analogous to the sorts of documentary and physical evidence - such as falsified videotaped interviews and forensic reports - that fall outside the protection of absolute immunity," Hurwitz said.

An allegedly falsified reconstruction of the crime scene, photographs of which were shown at the trial, is likewise not protected, according to the 15-page opinion.

"The policy interests behind absolute immunity for testimony do not apply to the investigative materials here," Hurwitz wrote.

While absolute witness immunity has a practical purpose - ensuring witnesses need not shade their testimonies to avoid facing a subsequent lawsuit - that cannot help the detectives here, according to the ruling.

"But when defendants have 'dual roles as witness and fabricator,' extending protection from the testimony to the fabricated evidence 'would transform the immunity from a shield to ensure' candor into 'a sword allowing them to trample the statutory and constitutional rights of others,'" Hurwitz wrote.

Having "plainly acted in an investigative capacity," Monsue and Landgren can only rely only on qualified immunity to defeat Lisker's lawsuit, the ruling concludes.

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