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Wednesday, April 8, 2015

Frank Green: “If Michael McAlister is committed [to the VCBR], unless he admits he committed the crime and submits to treatment it is unlikely he ever will be released from the state’s behavioral treatment center, in Burkeville”.


RICHMOND POLICE DEPARTMENT

Police photos of Michael Kenneth McAlister (left)
and Norman Bruce Derr that were used in McAlister's 1986 trial .
Pardon sought for man who claims innocence but is facing sex offender commitment, April 8, 2015
By Frank Green

His prison sentence ended in January, but Michael McAlister remains behind bars and could spend the rest of his life in custody for crimes he insists he did not commit. 

Legal machinery now is in motion to hold him indefinitely for treatment as a violent sex offender, based on 1986 convictions for abduction and attempted rape. Those are crimes he always has denied committing — and an innocence claim long supported by the detective who investigated him. 

In what may be McAlister’s last chance to clear his name and avoid life in the Virginia Center for Behavioral Rehabilitation, a request for an absolute pardon will be handed to Gov. Terry McAuliffe today along with a plea that he act before May 18, when a probable cause hearing is set as part of the civil commitment process. 

Pardon requests can take months if not years to resolve without DNA or other smoking-gun evidence. A spokesman for McAuliffe said Tuesday that his office handles pardon requests the same way as other governors, by forwarding them to the parole board for an investigation and recommendation. 

McAlister had a pardon request rejected in 2003 by then-Gov. Mark R. Warner, whose office and parole board spent 10 months considering it. 

Since then, however, more information supporting McAlister’s claim has come to light, and this time his petition is backed by a prosecutor. 

“Mr. McAlister’s case presents the nightmare scenario we all fear — overwhelming evidence of systemic failure at just about every juncture,” said Richmond Commonwealth’s Attorney Michael N. Herring, who was a college student when McAlister was convicted in 1986. 

Herring said that shortly after McAlister’s trial the prosecution team had doubt about his guilt, but “the concerns were ignored. Roughly 29 years later, the commonwealth is poised to double down on its mistake by seeking to have him declared and held as a sexually violent predator for a crime he didn’t commit.” 

Added Herring: “I think our justice system is one of the best on the planet. But this case makes me ashamed of it.” 

As McAlister’s prison term neared an end, his sexual assault convictions set in motion the civil commitment process and state law bars McAlister from challenging the validity of his convictions. Only a pardon from the governor can stop the risk of civil commitment at this point, McAlister’s lawyers say.
 


His innocence claim, first reported in the Richmond Times-Dispatch in 2002, regained life last year when the Mid-Atlantic Innocence Project and lawyers Jim Bensfield and Jonathan Kossak, with the Washington law firm of Miller & Chevalier, took up the case and discovered more evidence supporting McAlister’s innocence claim. 

Photos show that in 1986, McAlister, now 58, bore a strong resemblance to Norman Bruce Derr, now 60, a notorious serial rapist active in central Virginia and Maryland at the time and who now is serving three life sentences. 

Derr’s “method of operation,” or, “MO,” was strikingly similar to the attack for which McAlister was convicted. McAlister’s current legal team found that not only was Derr active in central Virginia but also in the same part of Richmond and the same apartment complex where the attack for which McAlister was convicted took place.

***
From the day he first was questioned by police, McAlister denied having anything to do with the Feb. 23, 1986, attack on a 22-year-old woman who was dragged from a laundry room of the Town & Country Apartments in South Richmond by her assailant. 

The knife-wielding man wore a plaid shirt and a stocking mask that hid much of his face, she said. She said she may have scratched him fighting him off. 

A composite sketch of the attacker was assembled by Richmond police based on her description — though she had seen only part of his face. An investigator thought the sketch bore a resemblance to McAlister, who lived nearby and had a record of indecent exposure.

Then-Richmond police Detective C.M. Martin paid McAlister a visit. McAlister was so adamant he had nothing to do with the attack, he posed for a photo to be shown to the victim wearing a plaid shirt. 

The victim picked him out of a photo spread in which he was the only suspect wearing a plaid shirt. 

A few days later, Martin learned that a special Henrico County police unit investigating Derr had followed him to the same apartment complex.

Derr’s crimes were similar as well. For example, in 2013, DNA linked Derr to a Feb. 6, 1986, rape in Waldorf, Md., for which an innocent Maryland man was sent to prison and then exonerated with help from the Mid-Atlantic Innocence Project. 

That 1986 Maryland attack — 17 days before the Richmond attack for which McAlister was convicted — was committed by a man armed with a knife and wearing a plaid shirt and stocking mask. 

The innocence project was unable to find any biological material for DNA testing in McAlister’s case, which was an attempted rape. 

But they found that from February 1985 to April 1986, Derr was a suspect in seven sexual assaults — not including the one for which McAlister was convicted — four of which occurred in laundry rooms of apartment complexes in South Richmond and one in a laundry room in Richmond’s North Side. 

McAlister’s legal team tracked down members of what was then called the Special Action Force of the Henrico police.

From 1981 to 1986 while Derr was out of custody, the unit used electronic, aerial and ground surveillance to track his movements. In affidavits, members of the force offered gripping accounts of an encounter with Derr at the Town & Country Apartments in South Richmond one night. 

An undercover female officer, her firearm hidden in a clothes basket, was in a laundry room at the apartments acting as bait for Derr. 

Officers watched as Derr approached the door of the laundry room with a stocking mask rolled up on his head. He pulled the mask over his face as he reached for the door to the laundry room. 

But just as Derr was about to enter, a door to an apartment across the street opened and a man stepped out. Derr pulled off the mask, returned to his car and drove back to his parents’ house in Tappahannock, the officers said. 

None of the former Henrico officers said they knew about McAlister’s conviction for a similar attack in a laundry room at the same apartments. 

According to the pardon request, 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.”

The 1985 and 1986 laundry room attacks were so similar that they indicated a single perpetrator was responsible. After McAlister’s arrest, a Richmond detective, unfamiliar with Henrico’s efforts against Derr, thought McAlister was responsible for other similar attacks in South Richmond, according to the pardon request. 

A Richmond assistant commonwealth’s attorney, however, was concerned McAlister was the wrong man and did not prosecute him for the other attacks. His doubts were well-founded, argues McAlister’s pardon petition — it turns out that McAlister was locked up when the two other similar attacks occurred. 

Joseph D. Morrissey, then an assistant commonwealth’s attorney in Richmond and the man who prosecuted McAlister for the Town & Country attack, has said that had he known what he knows now he would not have pursued the case. 

Martin, the Richmond detective now retired from the force, long has believed McAlister is innocent and Derr the real perpetrator. 

In an affidavit accompanying the pardon request, Martin said had he known about Derr prior to showing the Town & Country victim a photo spread of suspects, he would not have included McAlister’s photo.

***
Herring said Tuesday that the victim in the case had not yet been located and brought up to date on developments. He said he believed her identification of McAlister was reasonable under the circumstances. 

By the time Martin showed Derr’s photo to the victim, he said she already had picked out McAlister’s photo, picked him out again in a pre-trial hearing, and then again in a photo spread with Derr’s mug shot. 

“It was for that reason that we went forward with Mr. McAlister’s trial. However, I had serious misgivings about Mr. McAlister’s guilt even at that time,” said Martin in his affidavit. 

McAlister was convicted in September 1986 on the victim’s identification and sentenced to 35 years. 

Morrissey said he later had doubts about McAlister’s guilt and in 1993, he and Martin urged the parole board to free him. Martin, in his affidavit, said “Both Mr. Morrissey and I were surprised and dismayed to learn that he was not paroled.”

After then-Gov. Warner turned down his pardon request in 2003, McAlister was released on mandatory parole the next year. But he was sent back to prison in 2005 for breaking rules. 

Among other things, he told a forensic psychologist that he had a drinking and exhibitionism problem with several episodes involving prostitutes whom he paid to watch. In a recent telephone interview with The Times-Dispatch, McAlister admitted he has a drinking and exhibitionism problem for which he will seek treatment if released. 

As McAlister’s prison term was nearing an end, the state filed a petition requesting McAlister’s commitment for treatment under Virginia’s Civil Commitment of Sexually Violent Predators Act. 

The 1986 crimes are the predicate offenses for which he could be committed as a violent sex offender. A probable cause hearing is scheduled May 18 in Richmond Circuit Court. Should a judge so order, there will be a trial later to determine whether McAlister should be classified as a sexually violent predator. 

The petition cites a 19-page evaluation by the forensic psychologist who concludes that McAlister has “exhibitionistic disorder,” antisocial traits and a problem with alcohol. 

The evaluation noted that McAlister welcomes treatment for his exhibitionism disorder but has maintained innocence of the sexual assault charges. However, the convictions still stand and had to be considered as fact in the evaluation, the psychologist wrote. 

At least one expert said that if McAlister is committed, unless he admits he committed the crime and submits to treatment it is unlikely he ever will be released from the state’s behavioral treatment center, in Burkeville. McAlister was kicked out of one prison sex offender treatment program for claiming innocence. 

A spokesman for the state Attorney General’s Office said they expect the probable cause hearing will be held in Richmond Circuit Court as scheduled. 

Shawn Armbrust, executive director of the Mid-Atlantic Innocence Project, said the organization took up McAlister’s case only last year, before the civil commitment proceedings began, “and some of the most compelling evidence has only come out in the past few months.” 

Armbrust said, “Governor McAuliffe is the only person in Virginia with the power to end Mr. McAlister’s 29-year nightmare for good. We hope he acts quickly to do justice and return Mr. McAlister to his mother and daughters.”