Gov. Kaine Acts in the Norfolk 4 Case — But Without a Merited Full Pardon

Saturday, August 8, 2009

IN THE ANNALS of American justice, or injustice, there may be examples of murder convictions more vexing by the evidence than the notorious case of the Norfolk 4. But not many.

Set against the coerced, mutually contradictory and quickly recanted confessions of four Navy enlisted men who said they had raped and murdered 18-year-old Michelle Moore-Bosko at a Norfolk apartment complex in 1997 are the absence of any physical evidence or outside witnesses tying them to the crime; ample evidence casting grave doubt on the men's guilt; and the altogether credible confession of a fifth man, unknown to the sailors, whose DNA indisputably matches that taken from the victim.

That successive Virginia juries were able to find the men guilty beyond a reasonable doubt is a travesty of justice. No wonder 13 jurors from two of the trials later called for a full pardon for the four, joining a dozen former judges and prosecutors, four former Virginia attorneys general and 30 former FBI agents.

That's why we are dismayed by the decision of Virginia Gov. Timothy M. Kaine, who this week announced he would free -- but not pardon -- the three men who were serving life sentences for the Moore-Bosko murder. (The fourth convict left prison several years ago after serving more than eight years for rape. Mr. Kaine also declined to pardon him.) Essentially, the governor commuted the sentences of the Norfolk 4 to time served, which means that even in freedom their lives will be circumscribed by sex offender registries, the lingering stigma of guilt and other burdens.

Mr. Kaine, who had studied the clemency petitions for the Norfolk 4 since he took office in 2006, said he had not granted clemency because the men "have not conclusively demonstrated their innocence." Rather, he said, he decided they were much less involved than Omar Ballard, a convicted rapist who admitted killing and raping Ms. Moore-Bosko while the cases against the Navy men were pending.

We sympathize with the governor's dilemma in weighing a case so bound up with the emotions of the victim's family members, who continue to believe the sailors are guilty, and the integrity of the criminal justice system. Like the jurors who heard three of the sailors' trials, Mr. Kaine may have been struck by the taped confessions, which, delivered after many hours of brutal interrogation, make for chilling listening.

It's worth noting that a growing body of academic research and evidence has underlined the prevalence of false confessions, many of which have been undone by DNA testing. But the real problem with the governor's formulation is that it fits poorly with the facts of the case. To conclude that the Norfolk 4 were somehow complicit with Mr. Ballard, one must believe a tortured prosecutorial theory that seeks against all odds to explain why the sailors were willing to implicate each other but not Mr. Ballard, and why Mr. Ballard, who said he acted alone, would protect four men (plus three others also charged by the state but never convicted) he didn't know.

A handful of states and hundreds of police departments now require that interrogations be electronically recorded. Had that been so in the case of the Norfolk 4, who were subjected to marathon interrogations notable for the detective's threats and false assertions, events might have taken a different course. Other state lawmakers, including Virginia's, should mandate recorded interrogations, which are believed to reduce the number of false confessions. That would be a fitting legacy for the Norfolk 4.

© 2009 The Washington Post Company