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Anger Shadows Freedom

Parole, Not Exoneration, to Release Va. Man

By Jerry Markon
Washington Post Staff Writer
Wednesday, August 18, 2004; Page B01

Rebecca McAlister has waited 18 years for her son, Michael, to walk out of prison. Tomorrow, she gets her wish, but the moment will be bittersweet.

The Michael McAlister who will gain his freedom is an angry man, outraged at a system that left him incarcerated for attempted rape even though the prosecutor and lead detective came forward years ago and said he likely was innocent.

A prosecutor and detective said he could be innocent, but Michael McAlister spent 18 years in prison. (James A. Parcell -- The Washington Post)

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All that time, McAlister got to know his two young daughters, and now a grandson, through letters and photographs. To his mother, he "has done someone else's time. It's really rotten to put politics ahead of someone's life."

But Rebecca McAlister is thrilled that her son will walk out of Lunenberg Correctional Center near Richmond, even if it took mandatory parole to bring him home. "I'm just so excited," said McAlister, who plans to make her son's favorite meal tomorrow night -- filet mignon, with all the trimmings.

It has been a highly unusual journey for McAlister, 48, a carpenter who was convicted in 1986 of being the masked attacker who tried to rape a young mother. The prosecutor, former Richmond commonwealth's attorney Joseph D. Morrissey, told the judge that McAlister was guilty "pure and simple."

New evidence later emerged about another suspect, and the victim's identification of McAlister was called into question. Both Morrissey and former detective Charles M. Martin signed sworn affidavits saying they might have locked up an innocent man.

But efforts to exonerate McAlister went nowhere. Under Virginia law at the time, courts could not consider new evidence of innocence if it was brought forward more than 21 days after sentencing. In 2001, lawmakers changed the law to allow DNA evidence to be introduced at any time, but there was no DNA in McAlister's case.

Still, Morrissey and Martin testified on McAlister's behalf before the Virginia Parole Board, and their sworn affidavits were submitted with a clemency petition filed with Virginia Gov. Mark Warner (D) in 2002. The parole board repeatedly declined to release McAlister, and Warner rejected the petition.

A spokeswoman for Warner declined to comment yesterday, and the current commonwealth's attorney in Richmond, David Hicks, did not return telephone calls. The victim in the case could not be located.

The General Assembly recently expanded the Virginia law to allow courts to consider non-biological evidence of innocence long after a conviction. But by the time that law took effect July 1, the date of McAlister's release was approaching. He was sentenced before Virginia abolished parole in the mid-1990s, so under the sentencing system in place at the time, he would be freed after 18 years.

The 18 years expire tomorrow.

The case spotlights a growing national debate over faulty eyewitness identifications. DNA testing has cleared numerous prisoners nationwide, and mistaken eyewitness testimony has been blamed for most of the errors.

Vanessa Potkin, a staff attorney with the New York-based Innocence Project, which seeks to exonerate wrongly convicted people through DNA evidence, said McAlister's case is particularly egregious.

"It's extremely rare what this prosecutor and detective did in coming forward, and the fact that you would have people ignoring this evidence or turning a blind eye is extremely troubling."

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