Prosecutor backs man believed innocent of 1986 sexual assault
February 8, 2015
by Frank Green
Michael Kenneth McAlister’s prison term ended last month.
But this Richmond man, who some former investigators believe is innocent of a 1986 abduction and attempted rape, now faces possible indefinite confinement as a violent sexual predator.
McAlister’s saga will take a new turn March 3 at a hearing scheduled for Richmond Circuit Court that could see him serving additional decades, if not the rest of his life, inside the Virginia Center for Behavioral Rehabilitation in Burkeville.
That doesn’t sit well with Richmond’s top prosecutor, who does not believe McAlister’s record should lead to imprisonment or commitment as a violent sexual predator.
“We put the innocent guy in prison, and now we want to civilly commit him,” Michael N. Herring, Richmond commonwealth’s attorney, said in an interview last week.
If efforts to force McAlister into the state’s sex offender treatment facility proceed, Herring said he will tell the court that he believes McAlister did not abduct and attempt to rape a young woman in South Richmond 29 years ago — the crimes that make him eligible for further commitment after his sentence has ended.
In addition, Herring said he will work with McAlister’s lawyers to try to clear his record of the 1986 crimes.
“I’m going to sit down with the governor’s office and sit down with the attorney general’s office — whatever it takes,” Herring said.
C.M. Martin, a retired Richmond police detective who investigated the 1986 case, has long believed McAlister was mistakenly convicted of the attack.
“I have no reservations at all. He didn’t do it,” Martin said.
But exactly what can be done is not clear, and the clock is ticking.
Virginia law bars someone facing commitment from challenging the validity of prior criminal convictions during the commitment proceedings.
McAlister has always denied any involvement in the attempted rape, a stance he said got him kicked out of one prison sex-offender treatment program. If committed to the rehabilitation center, he faces a serious Catch-22, said Leigh Drewry, a Lynchburg lawyer who has represented clients facing commitment. He would have to admit guilt in order to be eventually released, Drewry said.
“They take the position that a court has said you’re guilty, therefore you are guilty, and in order to proceed with treatment, the first requirement is to acknowledge that you did something wrong and that you need treatment for it,” he said.
McAlister’s case was first reported by the Richmond Times-Dispatch in 2002 and then over the years as other developments surfaced. Last year, the Mid-Atlantic Innocence Project and a Washington law firm took on his case and have since uncovered dramatic — though not definitive — evidence supporting Martin’s belief that someone else committed the 1986 crimes.
In 1986, McAlister’s life was already a mess.
The 29-year-old divorced father of two was living at home with his mother and had a history of alcohol abuse. He also had faced charges of indecent exposure: in 1977, involving a 10-year-old girl, that was reduced to contributing to the delinquency of a minor; and in 1985, for which he was convicted. Both incidents happened after he had been drinking.
His future prospects took a truly serious dive early in 1986 when he posed for a police photograph wearing a red plaid shirt.
Martin, then a detective with Richmond police, was investigating the Feb. 23, 1986, attempted rape of a 22-year-old mother dragged from a laundry room at a Richmond apartment complex by an assailant.
The victim said she may have scratched his face as she fought him off. The knife-wielding attacker wore a red plaid shirt and a stocking mask that hid much of his face, she said.
Police assembled a composite sketch based on her description. It was later shown to the victim, who said it resembled the assailant, though she had only seen part of his face.
An investigator thought the sketch bore a resemblance to McAlister, who lived nearby. Martin paid him a visit. McAlister’s face was not scratched and he was so adamant he had nothing to do with the attack, he agreed to pose for a photo to be shown to the victim.
It was not until a few days later that Martin learned that a special Henrico County police unit investigating Norman Bruce Derr had followed Derr to the same apartment complex.
Derr, who lived in Tappahannock at the time and is now serving three life terms, was a dangerous and prolific serial rapist.
His record began in 1976 with attempted sodomy and burglary convictions in Richmond. After his release for those crimes, Derr was charged with attacks on six Henrico women that began in December 1981 and ended with his arrest in July 1982.
However, following acquittals in two trials, the rest of the Henrico charges were dropped in 1983. Then in 1985, Derr was charged with the robbery and attempted rape of a Spotsylvania County woman. Court records show he was free on bail from November 1985 until he was convicted in June 1986 of robbery in that attack — so he was free on Feb. 23, 1986.
Photos of McAlister, now 59, and Derr, now 60, show they bore a strong resemblance to one another almost three decades ago.
Unfortunately for McAlister, on March 3, 1986, before Martin learned of Derr, the Richmond victim picked McAlister out of a photo spread of bearded white males. McAlister was the only one wearing a plaid shirt, and Derr’s photo was not in the spread.
McAlister admits he is no angel. But aside from the 1986 attempted rape conviction, he has no assault record.
When Martin learned about Derr, he was concerned they might have the wrong man. He showed the Richmond victim Derr’s mug shot but she stuck with her identification of McAlister, who was later convicted of abduction and attempted rape based on her identification. He was sentenced to 50 years with 15 years suspended.
Martin came to believe it was Derr who attempted to rape the Richmond woman and that she misidentified him because of the red plaid shirt he wore in the photo lineup.
Former Richmond Commonwealth’s Attorney Joseph D. Morrissey, who prosecuted McAlister, said that it was not until after the conviction that he learned about Derr. Had he known about it earlier, Morrissey said, he would not have prosecuted McAlister.
Morrissey said he has doubts about McAlister’s guilt and in 1993, he and Martin appeared before the Virginia Parole Board to urge McAlister’s release but were unsuccessful.
In 2003, Gov. Mark R. Warner turned down a clemency bid from McAlister, a Warner spokeswoman saying only that clemency was inappropriate.
McAlister was released from prison on mandatory parole in 2004, but it was later revoked by the parole board and he was sent back to prison in 2006 to serve the remainder of his sentence for failing to comply with rules.
Now an inmate at the Dillwyn Correctional Center, McAlister could not be reached for comment last week. But in an earlier interview with The Times-Dispatch, he said life on the outside was difficult.
Among other things, he and his elderly mother were tossed out of her apartment when it became known he was a sex offender. Nevertheless, he said he accepted full responsibility for his return to prison. He began drinking again, got into trouble, fractured his skull while drunk and admitted violating rules.
A 19-page Sexually Violent Predator evaluation of McAlister by Evan S. Nelson of Forensic Psychology Associates, who has testified as an expert witness, reported that McAlister also admitted that while he was on parole, he hired prostitutes “about three times” so he could satisfy his urge for exhibitionism but with consenting individuals.
“To Mr. McAlister, being arrested and then being convicted for offenses that he felt absolutely certain he did not commit was a trauma, and sometimes he had nightmares about it,” Nelson wrote. He added that McAlister told him he was sometimes resistant to parole requirements because he felt it was unfair his life was controlled by a crime he did not commit.
Meanwhile, in 2004, DNA testing in old unsolved cases implicated Derr in a December 1984 rape in Waldorf, Md. In 2010, DNA linked him to a 1984 rape in Hanover County. He was convicted of both of those offenses.
Then in 2013, DNA linked him to a Feb. 6, 1986, rape in Waldorf for which an innocent Maryland man was sent to prison. The 1986 Waldorf attack was committed by a man armed with a knife and wearing a plaid shirt and stocking mask — and was committed just 17 days prior to the attack at the Richmond apartments.
The Mid-Atlantic Innocence Project, which cleared the innocent Maryland man of the 1986 Waldorf attack, and the law firm of Miller & Chevalier agreed to take up McAlister’s case last year. No evidence was found that could be subjected to DNA testing.
However, McAlister’s lawyers tracked down three former members of what was known as the Henrico police Special Action Force who gave a chilling accounts of an encounter with Derr at the Town and Country Apartments one night.
In affidavits, the retired officers said that at various times from 1981 to 1986 when Derr was out of custody, the unit used electronic, aerial and ground surveillance to track his movements.
According to Greg Will, with the Henrico police from 1977 to 2002, Derr knew he was being monitored and frequently took measures to see if he was being followed. Will said: “Derr often drove up and down Route 360 and would cruise through an apartment complex whenever the mood struck him. He drove all over Richmond, Henrico County, and Chesterfield County — anyplace that had a lot of apartment complexes.”
They said female officers who acted as decoys were sometimes placed in a laundry room in an apartment complex that it appeared Derr was going to target.
“One particular incident stands out in my mind,” Will recalled. Derr had been followed by officers for hours from one apartment project to another when Derr pulled into the Town and Country Apartments, where an undercover female officer was inside a laundry room as bait.
According to Michael Boswell, who retired from the Henrico police in 2004, officer Susan Beitzel (then Susan Austin) was wired. But while the other officers could hear her, she could not hear them.
Boswell said, “I watched as Derr approached the door of the laundry room with a stocking mask rolled up on his head. I saw him pull down the mask over his face as he reached for the door to the laundry room. This was the only time in all the hours that I spent following Derr that I ever saw him pull the stocking mask over his head.”
In her affidavit, Beitzel recalled that there was only one entry/exit to the room. “It was definitely scary being in the laundry room by myself. My colleagues later told me they could hear my heart beating fast over the wire and that I was breathing fast, too,” she said.
“I had my firearm hidden in the laundry basket and was told that if Derr came into the laundry room with his stocking mask on, I was authorized to use deadly force,” she added.
Just as Derr was about to enter, the door to an apartment across the street opened and a man stepped out to throw trash into a dumpster and to smoke a cigarette. Derr pulled off the mask, returned to his car and drove back to his parents’ house in Tappahannock, Boswell said.
Beitzel said, “I was used as a decoy on many occasions by the HCPD. This incident stands out in my mind because of how close Derr got to me and how frightening it was to wait in the laundry room expecting Derr to come in at any moment.”
Boswell said that as far as he knows, no one in the special unit knew of McAlister’s arrest and conviction. He said that based on what he knows about Derr and the McAlister case, “I am strongly of the belief that it was Derr and not Mr. McAlister who assaulted the victim.”
“It had all the hallmarks of Derr’s modus operandi. Moreover, I find it highly improbable that in the mid-1980s, someone else whose physical description matches Derr assaulted a woman while wearing Derr’s trademark stocking mask in a laundry room of the same apartment complex that we watched Derr prowl around during the same period of time,” Boswell’s affidavit concluded.
“The new facts supporting Mike’s innocence have only been with the attorney general for the past week. We trust that they’re going to give the case a fair review and hope they’ll come to the same conclusion as everyone else who has reviewed the facts of this case: that Mike is innocent and deserves his freedom.”
Michael Kelly, a spokesman for Attorney General Mark Herring, said Friday, “We have only had these materials for a few days, but Attorney General Herring takes these sorts of claims very seriously. His recently designated director of actual innocence and capital litigation will closely and thoroughly review the materials, including any relevant facts that may have come to light.”
The petition cites Nelson’s 19-page evaluation, which concludes that McAlister has “exhibitionistic disorder,” antisocial traits and “alcohol use disorder” and recommended McAlister be committed to the rehabilitation center in Burkeville as a sexually violent predator.
Among other things, Nelson wrote that McAlister fully admitted the other sex offenses and the broader pattern of exposing himself, but not to the 1986 attack.
“When it came to treatment, Mr. McAlister was very open to receiving treatment for his exhibitionistic disorder. He said even if the felony sex offenses were overturned that he felt he needed sex offender treatment for the exposure.”
As for the 1986 attempted rape, “Mr. McAlister had insisted he was not present and did not do it.”
“However, as of the date this report was prepared and submitted, the conviction still stood and thus this report dealt with it as fact, and Mr. McAlister’s denial represents an obstacle to treatment,” wrote Nelson.
Nelson concluded that, statistically, McAlister was at high risk for new sexual offenses, “and given his history of the abduction and attempted rape, it was clear he was not only at risk for non-violent incidents.”
Drewry said attempted rape is a predicate offense and once there is such a conviction, an evaluator can consider other crimes the inmate admits committing even if there were no convictions.