A convicted sex offender who claims he is innocent — and a prosecutor who believes him — on Wednesday will ask Virginia Gov. Terry McAuliffe (D) to issue a full pardon, according to attorneys involved in the case.
Michael Kenneth McAlister, 58, of Richmond has already served 29 years in prison, and he faces the possibility of being locked away for years more under a Virginia law that allows the civil commitment of sexual predators.
Now, Richmond Commonwealth’s Attorney Michael Herring (D) and the original prosecutor and the lead police detective in McAlister’s 1986 kidnapping and attempted rape case all say they are certain that another man, an imprisoned serial rapist, committed the crime.
McAlister’s request marks the latest turn in a case that has troubled authorities involved in the prosecution for decades. The case poses a stark reminder of how difficult it is to undo what they say is a wrongful conviction without DNA evidence. Virginia’s 1999 civil commitment law for “sexually violent predators” could magnify the consequences of any mistake.
In a 39-page plea to be filed Wednesday, Herring and attorneys for McAlister seek an absolute pardon and say he faces a May 18 hearing in which a Richmond judge will decide whether to hold a civil trial that could result in his indefinite detention at a secure state rehabilitation facility.
The judge is prohibited from considering evidence of McAlister’s innocence, and a defendant’s refusal to admit guilt makes additional punishment more likely, parties to the plea argue.
“In short, Mr. McAlister finds himself facing the Kafka-esque prospect of indefinite incarceration beyond his mandatory release date — all predicated on a crime that not a single person in law enforcement with knowledge of the case believes he committed,” wrote Herring, Shawn Armbrust and Frances Walters of the Mid-Atlantic Innocence Project, and James Bensfield and Jonathan Kossak of the Miller & Chevalier law firm.
Herring and McAlister’s attorneys say in the request that they think the attack was committed by a felon named Norman Bruce Derr, who strongly resembles McAlister and who was convicted of several similar attacks. Detectives looking into a string of attacks in the mid-1980s recently told how they had followed Derr to the apartment complex where the assault in McAlister’s case occurred. At the complex, the detectives said, they saw Derr pull a stocking mask over his face, and they thought he was planning to assault an undercover female police officer who was there as a decoy.
McAuliffe’s spokeswoman said Virginia’s office of the secretary of the commonwealth and parole board would review any request and make recommendations to him.
The victim of the attack could not be reached for comment.
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 woman was able to pull up the plaid-shirted attacker’s stocking mask and get a look at his lower face. McAlister, a father of two, 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 assault 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 Joseph D. Morrissey, who as an assistant Richmond commonwealth’s attorney prosecuted McAlister, and a Richmond police detective, Charles M. Martin, had doubts.
In statements supporting McAlister before a parole board in 1993 and in a 2003 pardon request to then-Gov. Mark R. Warner (D), Martin and Morrissey, who went on to become a state lawmaker, noted that they learned that detectives had spotted Derr, whom Morrissey said “looked unbelievably like McAlister,” near the woman’s apartment around the time of the attack. Derr had been convicted in two earlier attempted sexual assaults and sentenced to life for a 1988 rape in Fredericksburg.
Warner turned down the pardon request because of the absence of DNA evidence. McAlister was paroled in 2004, making the issue moot. However, McAlister violated parole by driving under the influence and was returned to prison the following year.
McAlister was due to be released this January, but corrections officials have had the authority since 2003 to screen convicted violent sex offenders before release and to seek the civil commitment of those deemed likely to offend again because of a mental or personality disorder.
In an interview, Herring, the commonwealth’s attorney, said several facts have emerged in recent years that have left police and prosecutors with no confidence in the conviction, and strong belief in McAlister’s innocence.
Derr has been convicted of three additional rapes in Virginia and Maryland based on cold-case DNA testing and remains a suspect in other similar attacks.
In addition, three retired police officers from Henrico County, adjacent to Richmond, say in sworn statements that around the time of the February 1986 attack they tracked Derr to a Town & Country apartment complex laundry room, where the officer acting as a decoy was posted. They said he pulled on a mask, but was apparently scared away by a noise.
The officers were part of a task force investigating a series of violent sexual assaults in 1985 and 1986 by a man matching Derr’s description, who usually wore a stocking mask and plaid shirt and carried a knife. Five occurred in apartment complex laundry rooms.
McAlister’s pardon petition states the officers “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 a 2003 interview, Derr denied involvement in any woman’s attack.
“You would have to ignore logic and reason to at this point conclude that McAlister is the offender,” Herring said. “Potentially incarcerating him indefinitely as a sexual violent predator on the basis of a crime that he did not originally commit would do nothing more than compound the original colossal mistake.”