Concluding that Bruce Lisker's conviction
for the 1983 slaying of his mother has been "effectively dismantled," a
federal magistrate recommended Thursday that Lisker be allowed to
proceed with his claim of innocence in federal court.
In a 57-page report, U.S. Magistrate Judge Ralph Zarefsky wrote that he
had "no confidence" in the guilty verdict rendered at Lisker's 1985
trial in Van Nuys and that, based on new evidence, "no reasonable juror"
would be likely to convict him today.
Zarefsky submitted the report to U.S.
District Court Judge Virginia A. Phillips with the recommendation that
she adopt its findings and send the case back to his courtroom so that
Lisker can present constitutional claims for overturning his conviction.
Judges are not bound by magistrate judges' recommendations but often
follow them, particularly when they are backed up by extensive
evidentiary findings.
Because Lisker, 40, missed a deadline nine years ago for filing a writ
of habeas corpus, his attorneys were required to establish the
likelihood of his innocence in order to have Zarefsky waive the
deadline. After hearing evidence from both sides in the case last fall,
Zareksky found that his attorneys had met that test.
Legal observers described the development as significant.
"It's huge," said Loyola law professor Laurie Levenson. "To me, it means
the jailhouse doors may be slowly starting to open."
Levenson said the judge's strongly worded report should put "enormous
pressure" on Los Angeles County Dist. Atty. Steve Cooley to reassess the
case against Lisker.
Cooley was not immediately available for comment.
Deputy Atty. Gen. Robert Breton, who has been defending Lisker's
conviction, said he needed more time to absorb the findings.
"We are still carefully reading the report and recommendation," Breton
said. "I have no further comment at this time."
William Genego, one of Lisker's attorneys, was elated. "Bruce Lisker has
waited 22 years to get his first taste of justice," Genego said. "We're
glad it's finally come, even though it's long overdue."
Phillip Rabichow, the prosecutor who secured Lisker's conviction, said
he wants justice to be served and that, if a mistake was made, he wants
it to be corrected.
"If he's innocent, he should be released," he said.
Lisker's mother, Dorka, 66, was fatally beaten and stabbed in her
Sherman Oaks home on March 10, 1983. Bruce claimed that he came home and
found his mother bloody and near death in the entry hall of the home. He
called paramedics to come to her aid.
When police arrived, Lisker told officers that he had found the front
door locked and saw no sign of his mother. He said he went to the
backyard and began looking through windows and that he saw his mother's
head through a patio sliding glass door. Lisker said he broke into the
house through a kitchen window and tried to provide first aid before
paramedics arrived.
Police were immediately suspicious of the frizzy-haired teen, who had a
history of drug abuse and fighting with his mother. They did not believe
that he would have been able to see her head through the sliding glass
door, as he claimed. They were also dubious of his claim of entering the
house through the kitchen window.
After providing a detailed statement to LAPD Det. Andrew Monsue, Lisker
was arrested.
The Times, as part of a seven-month investigation into the case,
reported a year ago that Rabichow, now retired, had acknowledged after a
recent visit to the family's home that Lisker might have been able to
see his mother's prone body, as he had claimed.
Based on The Times' investigation and other evidence, Rabichow said he
had reasonable doubt about Lisker's guilt.
While police and prosecutors had long theorized that Lisker had killed
his mother after she caught him stealing money from her purse — $150
missing from her wallet was never found, they said — The Times unearthed
an inventory report stating that $120 had been tucked inside a wallet in
the purse all along.
In his report, Zarefsky wrote that the evidence put forth at a December
hearing "effectively dismantled the case the prosecution presented at
trial."
Rabichow's claim at trial that Lisker could not possibly have seen his
mother's body through the rear windows of the home was refuted.
Bloody shoeprints found in the home that Rabichow said had been left by
Lisker "were not made by [Lisker's] shoes," Zarefsky wrote.
Zarefsky said that at least some of the $150 that Rabichow said was
missing from Dorka Lisker's purse "appears to have remained" in the
handbag.
The magistrate judge also noted that new evidence with regard to the
prosecution's reliance on a jailhouse informant, Robert Hughes, who
testified at trial that Lisker had confessed to him that he had killed
his mother, "was even less than it appeared at trial."
Finally, Zarefsky said that Monsue never sufficiently investigated
another suspect, Michael Ryan, a friend of Lisker's, who lied about his
whereabouts at the time of the slaying.
Were a jury to consider the case in light of all the new evidence put
forth by Lisker's attorneys, Zarefsky wrote, it would "know that there
is essentially no evidence of [Lisker's] guilt" beyond the confessions
he ultimately recanted, which were "self-serving when they were made and
unaccompanied by verifying details."
" … There is a strong suggestion that someone else was responsible for
the crime," Zarefsky said. "In such circumstances, it is more probable
than not that no reasonable juror would find [Lisker] guilty of murder
beyond a reasonable doubt."