The victim pulled up the stretched nylon hose and glimpsed part of a face. The next day, Richmond police assembled a composite picture based on her description. A week later, an investigator spread a dozen mug shots in front of her. She picked out one. Michael Kenneth McAlister was at home on a Saturday when police arrested him on charges of abduction and attempted rape. He was convicted and sentenced to 35 years in prison on the strength of her identification. The problem is, he is likely innocent. Even the investigator who put him behind bars doesn't think he belongs there. McAlister's case appears to illustrate the perils of eyewitness identification: the problems with traditional police photo spreads and the dangers of relying solely on a witness, however sincere and certain, to win a conviction. Unluckily for McAlister, there is no DNA or other evidence to clear him. He has been told by lawyers that there is little chance of help from the courts or the governor. He has lost hope. "Mike's been in 15 years. We've just given up. I've run out of money," said his mother, Rebecca McAlister. "I've had two heart attacks, cancer and now severe asthma. I spent all that my daddy left me, all that my mama left me." McAlister's mother isn't the only one disturbed by the convictions. So is the former Richmond detective who investigated the case, C.M. Martin, and the former assistant commonwealth's attorney who prosecuted it, Joseph Morrissey. Contacted recently by The Times-Dispatch, both expressed their concerns publicly for the first time. Indeed, in 1993, they tried do something about it. "We felt that we had the wrong man," Martin said. So "we went to the Parole Board and [told them] we just felt that McAlister was not the person and that there was a high probability [someone else] could have committed the offense." Morrissey, who later would become the city's commonwealth's attorney and now lives in Ireland, said, "It's the one case out of thousands that has always troubled me. "I'm literally shocked that he's still locked up." "In the seven years I was an assistant and the chief prosecutor, I'd never gone to a parole hearing for somebody," Morrissey said. But this case was an exception. While he did not tell them he believed McAlister was innocent, "I said to them: 'Ladies and gentlemen, I had doubts then. I have doubts now'" about his guilt. Yet, he said, "they denied his parole. I couldn't believe it." The suspected perpetrator, Norman Bruce Derr, 47, formerly of Tappahannock and Richmond, resembled McAlister and used the same method in his attacks as did the culprit in the Feb. 23, 1986, incident that sent McAlister to prison. Before the Feb. 23 attack, when Derr was out on bond on another charge of attempted rape, he was tailed by police to the same South Richmond apartment project where the Feb. 23 attack occurred. Derr knows he was a suspect in the case. Reached at the Nottoway Correctional Center recently, he said, "Tell'em to prove it, that's all I can say . . . I had nothing to do with that." . . . McAlister's problems began in a laundry room at the Town and Country apartments about 9:50 p.m. on Feb. 23, 1986. A mother of two - 22 years old, 5 feet, 3 inches tall and weighing 110 pounds - was washing her clothes. She was hurrying because the laundry room closed at 10. The attacker entered, forced her outside at knifepoint and ordered her to undress, assisting her when she stalled. She struggled and scared him off. She told police the man was about 6 feet tall and weighed 175 pounds. He had shoulder-length hair - McAlister's hair was much shorter - and a beard. She broke a nail and thought she scratched his face when she partially lifted his stocking mask. She saw his left profile, up to the bottom of his eyes, but not the color of his eyes. With that information and without further assistance from the victim, police put together a composite drawing that had a resemblance to McAlister, who lived nearby and had a record. McAlister had pretty much made a mess of his life. Just 29, he was a longtime drug and alcohol abuser and the divorced father of two. He was living at his mother's home. Years earlier, while in a stupor, McAlister had exposed himself to a girl. Then in 1985, again drunk, he streaked nude across a parking lot and was charged with exposing himself. So police knew him, and they knew he lived just a short drive from the apartments. A day or two after the South Richmond attack, investigators showed up at his house. He recalls the visit this way: "They said that there had been an attempted rape and the victim had scratched the man, so they checked my face for scratches, they didn't see any scratches, and they asked me if they could take a picture, and I said, 'Sure.'" The police had told him they were looking for a suspect wearing a red-and-white plaid shirt. Over his mother's protests, he donned a red plaid shirt to pose for the photograph. "I begged him not to . . . I didn't want the girl identifying a shirt," she said. But he was determined to clear himself. "Mother, I have not done one thing," she said he replied. The police left. As far as McAlister was concerned, "I never expected to hear from them again. I thought it was over with." But it wasn't. On March 3, 1986, the victim picked McAlister's photo out of a photo spread and identified him as her attacker. He was the only suspect wearing a red-and-white plaid shirt in a lineup of photos of bearded white males. Though the victim was shown a group of photographs at once, studies have shown that witnesses are more accurate when they are shown mug shots one at a time, sequentially, and when the presenter also does not know who the suspect is. Martin said he "was just amazed that she was able to make an identification." He said he was never really comfortable with the identification, but his concerns were eased because McAlister had a red plaid shirt. On the morning of March 8, police arrived at McAlister's house again. "They said they had a warrant for my arrest," he said. "I was shocked. I was in total disbelief. This had to be a mistake. And then, when I was in jail, they came and took blood, hair, saliva. When they arrested me, they took cigarette butts out of my car. So I figure they've got physical evidence, and this is going to be cleared up." But it wasn't. The police said, " 'She's saying it's you.' I don't know how to defend against that. There's no way." What McAlister and Martin did not know at the time was that another suspect, Derr, would soon surface, but not in time for the victim to be shown his mug shot in the initial photo spread. Martin learned a police surveillance team had followed Derr to the same apartments. "If I had known he'd been in that area and he had that history, I would have definitely had his photo in that photo spread," Martin said. In the early 1980s, a masked, knife-wielding rapist struck at least six times in western Henrico County. The attacks stopped when they arrested Derr. In 1983, Derr faced 17 felonies in connection with the six attacks that occurred in 1981 and 1982. But after juries acquitted him in two of the cases, the rest of the charges against him were dropped. Then Derr was charged with the Oct. 31, 1985, robbery and attempted rape of the owner of a Spotsylvania County hair salon. She testified she was ordered to disrobe at knifepoint by a man wearing a stocking mask. He was tried in June 1986 but was convicted only of the robbery charge. Spotsylvania court records show he was freed on a $30,000 bond in November 1985 and remained free until the robbery conviction in June 1986. So he had the opportunity to commit the Feb. 23 assault. After Martin and Morrissey learned Derr might have been involved, the victim was shown Derr's photograph in what was otherwise the same photo spread she had looked at earlier. She continued to identify McAlister as the culprit. "She didn't waiver on her identification at all," Martin said. "She was just so strong and so emphatic. Even when we had doubts ourselves about it, she stuck to her identification." That she stuck with her initial identification is to be expected, said Brian L. Cutler, an expert on eyewitness testimony who is chairman of the department of psychology at the University of North Carolina at Charlotte. Once witnesses commit themselves to an identification, Cutler said, their confidence in the identification often increases. "So I would expect, once the witness makes an identification from a mug shot, makes a commitment to it, that that witness would stick to it even in the face of seeing the actual perpetrator," he said. "Once we make a commitment to things, we become more confident." "In fact, the person the witness identified in the mug shot, could, essentially, replace the witness' original memory." In this case, "we don't know that that happened. But it's a possibility," Cutler said. Derr still resembles McAlister in photographs of violent sex offenders on the Virginia State Police on-line registry. Among other things, Derr is serving three life terms for a rape, forcible sodomy and abduction in connection with a June 1988 assault on a woman in Fredericksburg. . . . McAlister's trial lawyer, James Thorsen, decided against a jury trial, and McAlister was tried by Frank A.S. Wright, the circuit judge in South Richmond who has since died. The victim, who broke into tears at one point, identified McAlister as her attacker. Rebecca McAlister testified her son was at home with her that night, but because she gave a different initial account to police about that evening, Morrissey was able to challenge her credibility. In his closing arguments, Thorsen attacked the reliability of the woman's identification. "She gave a description to Detective Martin. And Detective Martin took that description down and got a composite drawing and brought it back to her. She looked at it. How she knows this is the man without seeing his face is incredible, not worthy of belief . . . "What she has in her mind, Judge, she has the composite in her mind. She matches up the composite with the photograph of Mr. McAlister. That is what sticks in her mind. Not the true description of the person who attacked her that night, but the composite picture." Thorsen's argument would strike a chord with Jennifer Thompson of Winston-Salem, N.C. In 1984, Thompson was a 22-year-old student at Elon College who lived alone in a Burlington, N.C., apartment when she was raped. Police drew a composite sketch of her attacker, and she said the face on the sketch became, in her mind, the face of the rapist. As a result, she made an incorrect choice from a photo spread, and even though she was certain he was the rapist, years later a DNA test cleared him and implicated another man that she had testified did not commit the crime. But in 1986, Wright wasn't impressed with Thorsen's argument. He promptly convicted McAlister. McAlister was not sentenced until Dec. 1, 1986. Before the sentencing, Morrissey had concerns. "This case bothered me. I went and saw Judge Wright after he convicted him. "I said to him, 'What do you think of the McAlister case?' "He looked at me and said, 'What do you think?' "I said, 'Well, to be honest, I'm not sure he got his day in court.' "Wright told me, 'Joe, up until the time that you'd finished your case . . . , I probably would have acquitted him. The problem with that case is, his mom got on the stand and gave him an alibi, and I think she lied.'" But, Morrissey said recently, if she lied, "that doesn't mean she lied to protect his guilt - you could also lie to protect his innocence." He said he asked Wright, " 'What do you want to do about it?' And we talked about it. I said, 'Let's offer him a polygraph examination.'" McAlister took the test, administered by the Virginia State Police, but the results were inconclusive. Wright sentenced him to 50 years, with 15 years suspended. The victim in the case could not be reached for comment. Brent Jackson, a lawyer who once represented McAlister, said he tried to track her down via her mother several years ago but had no success. Meanwhile, McAlister, 45, has given up hope for discretionary parole. The process, said his mother, has proven too stressful for both of them. He will instead wait until his mandatory release date, Aug. 20, 2004. But, his mother said, in addition to freedom, "I want Mike's name cleared. I don't want him to go through life with this hanging over his head." "We trusted the legal system once. We don't anymore. There's no way." Contact Frank Green at (804) 649-6340 or fgreen@timesdispatch.com |
