Misidentified by victim?

Sep 06, 2002

Gov. Mark R. Warner is about to receive a clemency petition from an inmate who contends he was wrongly convicted - and the detective who helped put him behind bars strongly agrees.

In addition, the prosecutor in the case, former Richmond Commonwealth's Attorney Joseph D. Morrissey, tells the governor in an accompanying affidavit that he has serious doubts about Michael McAlister's guilt.

McAlister, 46, has served 16 years in prison for a 1986 attempted rape and abduction in South Richmond that the detective believes likely was committed by Norman Bruce Derr, a convicted rapist who is serving life for other attacks.

"I am now convinced that Mr. McAlister did not commit the crimes for which he is incarcerated and that he was simply misidentified by the victim," said former Richmond police detective C.M. Martin in his affidavit.

McAlister, being held in the Lunenburg Correctional Center, could not be reached for comment.

However, his mother, Rebecca McAlister of Richmond, said, "my hope is that Mike comes home. I'm almost without words after 16 years. I can't believe all this has happened. I can just beg the governor, do the right thing and release him."

The petition, mailed yesterday, was written by Alexandria lawyer Christopher Amolsch for the Innocence Project of the National Capital Region. It includes supporting affidavits from Morrissey and Martin.

The Innocence Project became involved several days after The Times-Dispatch reported on McAlister's predicament in April.

There is no DNA evidence in the case, McAlister no longer has any appeals available and the Parole Board repeatedly has turned him down for release because of the serious nature of the crimes. Clemency from Warner is his only hope for freedom.

The case seems to illustrate a weakness in traditional police suspect photo spreads and the danger of relying on a single eyewitness - no matter how certain - for winning a conviction.

McAlister, the father of two, was convicted solely on eyewitness identification by the victim, who glimpsed only part of her attacker's face through a stocking mask. McAlister and Derr were roughly the same height and weight, were close in age and each had a beard.

They bore a strong resemblance to each other as well as to a police sketch drawn with the help of the victim. Unknown to the officers investigating the attempted rape, Derr, free on bond at the time, was earlier tailed to the same apartment project by other officers keeping him under surveillance.

The attack occurred in a laundry room at the Town and Country apartments in South Richmond about 9:50 p.m. on Feb. 23, 1986. A petite, 22-year-old mother of two was hurrying to wash her clothes because the laundry room closed at 10.

A man entered, forced her outside at knifepoint and made her undress. She struggled and scared him off. She told police the man was about 6 feet tall, weighed 175 pounds, had shoulder-length hair - McAlister's hair was much shorter - and a beard.

She said she believed she had scratched his face when she partially lifted his stocking mask.

Police contacted McAlister, who had a minor record, lived nearby and fit the same general description. He was asked to pose for a mug shot and did so. Telling his mother he had nothing to fear, he even donned a red plaid shirt - the kind worn by the attacker - to pose for the photo.

His mug shot was included with others of bearded white males, but McAlister was the only one wearing a red plaid shirt. The victim picked out his photo and then later identified him in court.

McAlister was tried before the late Richmond Circuit Judge Frank A.S. Wright, convicted and sentenced to 50 years with 15 years suspended.

The victim in the case could not be found for comment. Derr, in an interview with The Times-Dispatch earlier this year, denied any involvement in the attack.

But Martin said that he had not known about Derr until after the photo spread had been shown to the victim. Had he known, Martin said in his affidavit, Derr's photo would have been included and Martin probably would not have used McAlister's photo.

Martin and Morrissey were so concerned about the case that they appeared before the Parole Board in 1993 urging that McAlister be released but to no avail.

The clemency petition argues that "the victim made this identification under circumstances perfectly designed to yield a misidentification."

"Based on this information, it should be clear that Mr. McAlister is serving time for a crime he did not commit," concludes the petition.

Ellen Qualls, spokeswoman for Warner, said the petition will first go to the office of the secretary of the commonwealth for review. She said she could not estimate how long it would take for a decision. "Petitions are given the necessary review," she said.

If not released by the governor, McAlister must be released on mandatory parole in two years.

McAlister had some other good news this week. On Wednesday, the younger of his two daughters, Rebecca Godwin of Daytona Beach. Fla., delivered his first grandchild, a 7-pound boy named William.

Contact Frank Green at (804) 649-6340 or fgreen@timesdispatch.com

Eyewitness ID
Innocent Imprisoned