Attention: Tim Kaine
THIS WEEK, a judge in Norfolk threw out the conviction of Derek E. Tice, who is serving a life term in Virginia for rape and murder. The decision by Judge Everett A. Martin Jr. should move Gov. Timothy M. Kaine (D) to examine one of the most disturbing potential miscarriages of justice the commonwealth has seen in a long time.
Mr. Tice is one of four Navy sailors prosecuted for the 1997 rape and murder of a Navy wife, Michelle Moore-Bosko. All four confessed but now say their confessions were coerced with aggressive interrogation and threats of the death penalty. All have asked Mr. Kaine to free them, and they have made what seems a powerful case for their innocence. Yet for technical reasons, Mr. Tice is the only one who still has recourse to the courts -- which have now declared his conviction unconstitutional. Mr. Kaine is the only possible source of justice for the others.
The case of the "Norfolk 4" puts the governor in a difficult position. Almost all the evidence that collectively casts doubt on the convictions was available at the time police accused Mr. Tice, Joseph J. Dick Jr., Danial J. Williams and Eric C. Wilson of gang-raping and killing Ms. Moore-Bosko. What's more, in addition to confessing, two of the sailors pleaded guilty. Governors should not lightly overturn convictions under such circumstances.
But this case is extraordinary. Aside from the confessions, no evidence implicated anyone except a man named Omar Ballard, whose DNA was found at the scene. No physical evidence suggested more than one attacker. No DNA evidence linked any of the four sailors to the crime. The evidence was so weak that three other sailors initially charged had to be let go when they did not confess. For his part, Mr. Ballard made clear, even as police were focused on the sailors, that he had acted alone. He wrote in a letter: "Guess who did that Me. HA HA." And he told police as much when they asked him. He later changed his story and was spared the death penalty after pleading guilty to rape and murder. More recently, however, he has returned to his original version: "None of the other individuals who were charged with raping or killing Michelle were there or involved in any way," he said in an affidavit.
Judge Martin's opinion does not address Mr. Tice's guilt or innocence. It does, however, make clear that police interrogated him with improper aggressiveness -- continuing after he had unambiguously asserted his right to stop answering questions.
The attorney general's office has announced that it will appeal the decision. And Mr. Kaine's office says the governor will not move on the clemency requests until all judicial proceedings are finished. That's wrong. Messrs. Dick, Williams and Wilson -- Mr. Wilson was convicted only of the rape and has been released -- have no judicial process available to them. Their petitions for clemency have been pending for more than a year. Given the magnitude of the injustice they claim, it's time Mr. Kaine gave them an answer.