Virginia Gov. Terry McAuliffe (D) on Wednesday granted an absolute pardon to a convicted sex offender, ending a decades-long campaign by an imprisoned man whose claims of innocence were eventually joined by prosecutors and police.
Final proof that Michael Kenneth McAlister, 58, was wrongly convicted came when another man — a serial rapist who bore an uncanny resemblance to McAlister — recently confessed to the 1986 attempted rape and kidnapping in Richmond, the governor said.
The unconditional pardon wipes away a prosecution that has haunted officials familiar with the investigation for decades, and came days before McAlister faced what his attorneys called the “Kafka-esque prospect” of being locked away for years more under a Virginia law that allows the civil commitment of sexual predators after they complete their criminal sentences.
“A number of individuals in the law enforcement community . . . have concluded that this crime was committed by another individual, and that Mr. McAlister should be freed to return to his family and his community,” McAuliffe said in a written statement. “I have reached the same conclusion, and I have acted in accordance with the law.”
McAlister, released and reunited with his elderly mother and sister shortly before sundown in the parking lot of Dillwyn Correctional Center in Virginia’s central Piedmont region, said: “It’s a great day. It’s a wonderful day. . . . Governor McAuliffe, he’s a special man for being brave enough to do this.”
McAlister, who served more than 28 years in the attempted-rape case and for a later parole violation, expressed regret that the victim in his conviction had gone through so much, first the attack and then learning of the misidentification.
“It wasn’t her fault, and I don’t hold any hard feelings at all toward her,” he said. As for the man who confessed to the crime, McAlister said, “I hope he can deal with his issues as best he can.”
In a statement, McAlister’s attorneys — Shawn Armbrust, executive director of the Mid-Atlantic Innocence Project, and James Bensfield and Jonathan Kossak of the Miller & Chevalier law firm, said, “We are thrilled that the governor did the right thing and finally ended this nightmare.”
McAlister’s sister, Denise Haas, 62, who drove with their mother, Rebecca McAlister, from Powhatan, Va., to pick up McAlister and bring him a change of clothes from his prison uniform, said: “I am one of the happiest women in the whole wide world right now, next to my mother. We’re going directly home, so he can eat some of his mother’s home-baked cookies.”
McAlister was a 29-year-old carpenter living with his mother when he was identified in a photo array, and later in court, by a woman who was assaulted in the laundry room of the Town & Country apartment complex in Richmond on the night of Feb. 23, 1986.
The 22-year-old mother was able to pull up the plaid-shirted attacker’s stocking mask and get a look at his lower face. McAlister was known to police from a few alcohol-related incidents of public indecency and resembled a police sketch of the attacker drawn from the victim’s description.
A detective investigating the attempted-rape and kidnapping case asked McAlister to wear a plaid shirt, took his photograph and included it in a photo lineup shown to the woman.
McAlister was convicted, but the original prosecutor and lead police detective soon had doubts. It turned out another man — Norman Bruce Derr — was a suspect in Richmond laundry room rapes.
Derr had been convicted in two earlier attempted sexual assaults and sentenced to life for a 1988 rape in Fredericksburg. Joseph D. Morrissey, who as an assistant Richmond commonwealth’s attorney prosecuted McAlister and who went on to become a state lawmaker, noted that Derr “looked unbelievably like McAlister.”
Both Morrissey and detective Charles M. Martin told the state parole board in 1993 and then-Gov. Mark R. Warner (D) in 2002 that they would not have presented McAlister’s photo to the witness or charged him based on what they later learned.
Warner turned down McAlister’s pardon request in 2003, in part because of the absence of DNA evidence. Kevin Hall, a spokesman for Warner, now a U.S. senator, said Wednesday that McAuliffe “made the appropriate decision” in light of developments.
A person familiar with the case said that at the time of McAlister's request to Warner, Derr had not confessed, the victim remained adamant in her identification of McAlister, and the request was not joined by the sitting Richmond commonwealth’s attorney.
Still, McAlister’s case troubled state officials, who took steps to prevent a repeat. Virginia long barred courts from considering new evidence of innocence once 21 days had passed after sentencing, but the General Assembly changed the law in 2001 to allow DNA evidence to be introduced at any time, and then to allow courts to consider non-biological evidence of innocence. The last change took effect in July 2004, after McAlister’s plight was publicized.
But it came too late to help him since McAlister was paroled that August. The next year, he was arrested for driving under the influence and returned to prison.
His release was set for January 2015, but he has remained incarcerated pending a scheduled May 18 hearing in which a Richmond judge would have decided whether to hold a civil trial that probably would have resulted in McAlister’s indefinite detention at a secure state rehabilitation facility.
Virginia’s 1999 civil commitment law for “sexually violent predators” authorizes corrections officials to screen offenders before release for a mental or personality disorder that they deem makes it likely they will offend again.
Judges are prohibited from considering evidence of innocence. In fact, a defendant’s refusal to admit guilt makes additional punishment more likely, legal experts said.
With renewed urgency, McAlister’s legal team tracked down three retired Henrico County police detectives from suburban Richmond who said that in the weeks or months before the February 1986 assault, they followed Derr to a laundry room at the Town & Country complex, saw him pulling a stocking mask over his face and thought he was planning to assault an undercover female police officer who was there as a decoy.
A man matching Derr’s description, usually wearing a stocking mask and plaid shirt and carrying a knife, was identified by victims of a series of violent sexual assaults in 1985 and 1986 in central Virginia. Five occurred in apartment complex laundry rooms.
In an affidavit included in McAlister’s pardon request to McAuliffe last month, the detectives said they “believe it is highly improbable that another stocking-mask-wearing, knife-wielding, 6-foot-tall white man with shoulder-length blond hair was terrorizing women at night in the Town & Country apartment complex laundry rooms during that same period in time.”
In response, Richmond Commonwealth’s Attorney Michael N. Herring (D) joined McAlister’s pardon request. McAuliffe ordered the state parole board to conduct a fresh investigation.
Board investigator Trudy Harris met several times over the past six weeks with Derr, who is serving five life sentences at Virginia’s Nottoway Correctional Facility for additional rape convictions in Virginia and Maryland.
“She did talk to Mr. Derr on several occasions, and he did in fact confess to her that he committed this particular crime,” McAuliffe spokeswoman Christina Nuckols said. Derr confessed under a grant of immunity, officials said.
Derr had previously denied involvement in any attack on a woman.
With the fresh confession, “Mr. Derr is at peace with himself and at peace with God,” said Stephen D. Mercer, chief attorney of the forensics division of the Maryland Public Defender’s Office, who has represented Derr for about 10 years.
Harris has also spoken with the survivor of the attack, Nuckols said. She could not be reached for comment.
McAlister’s pardon was recommended to the governor by Virginia’s parole board in a closed vote April 30 and was reviewed by Secretary of the Commonwealth Levar Stoney (D).
In his statement, McAuliffe cited “overwhelming evidence” of McAlister’s innocence, saying: “The integrity of our justice system depends on the guarantee of a fair trial that is informed by all available evidence. Protecting that integrity requires quick action in the event that new evidence comes to light.”
McAuliffe, who took office last year, has now granted pardons to 14 of 27 defendants who have applied, although McAlister is the first to receive an unconditional pardon erasing his criminal record.