Judge: Man convicted in rape could be released from prison
By MICHELLE WASHINGTON, The Virginian-Pilot
© November 30, 2006
Last updated: 11:13 PM
NORFOLK - Because of one mistake by his lawyers, one of the men convicted in the 1997 rape and murder of a young Navy wife could be set free, a judge has found.
Derek E. Tice was one of eight men charged in the killing of 18-year-old Michelle Moore-Bosko. Four, including Tice, were convicted of rape and murder and are serving life terms without possibility of parole. One, convicted only of rape, has served his time and been released. Charges against the other three were withdrawn for lack of evidence.
The five convicted men all made statements to police admitting guilt. Of those, only one, Omar Ballard, was linked to the crime by DNA evidence. The other four now say their confessions are false and were coerced. Ballard now says he committed the crime alone.
Last year, Tice petitioned the court for a ruling that he is unlawfully imprisoned. His lawyers made a number of claims to support the petition, including ineffective trial lawyers, witness tampering by police and the prosecution, and mistakes by the trial judge.
In a ruling issued Monday, Judge Everett A. Martin Jr. found that one claim had merit: ineffective trial lawyers. His decision essentially vacated Tice's convictions. A hearing has been scheduled for Dec. 20 to determine what happens next.
Stephen McCullough, a senior lawyer in the state Attorney General's Office, said he will appeal the decision and ask that Tice remain in prison while the state Supreme Court considers the case.
If the judge denies that request, McCullough said, Tice could be freed during the appeal. If the state's appeal fails, prosecutors would have to decide whether to try Tice a third time.
In his 10-page opinion, Martin said Tice's lawyers, James Broccoletti and Jeffrey Russell, should have sought to suppress Tice's statement to police because police continued to question him after he had invoked his right to silence.
In notes included in Tice's case file, Norfolk Police Investigator Randy Crank wrote, "He told me he decide (sic) not to say any more; that he might decide to after he talks with a lawyer or spends some time alone thinking about it."
Martin said the first part of that statement was "unambiguous and unequivocal" - Tice had invoked his right to silence.
On those grounds, a court probably would have ruled that Tice's statement could not be used as evidence, Martin said. There was no fingerprint, DNA, or other scientific or physical evidence that would have implicated Tice, Martin wrote, and no other incriminating testimony except from a co-defendant, Joseph Dick Jr. Broccoletti's questioning of Dick at trial was "quite damaging," Martin found.
Without the confession, there's a reasonable chance a jury would have acquitted Tice, Martin wrote.
It was one mistake made during the course of two trials over more than three years, Martin wrote. Broccoletti and Russell avoided imposition of the death penalty and won a reversal of Tice's conviction on appeal after his first trial.
Broccoletti said Wednesday that he has always thought Tice is innocent, and was glad he would get a chance to prove it.
Deborah Boardman, one of Tice's current lawyers, said, "We are thrilled. This is terrific news.... We're hopeful he'll be released and be with his family before Christmas."
Tice's father was elated.
"I'm still about three feet above the ground," Larry Tice said from his home in Clayton, N.C., during a telephone interview. "I'm still in a state of disbelief that we won it."
He had made no plans to celebrate, however.
"This has been going on long enough that we tend not to get too excited until things actually happen," Tice said. "We've had too many disappointments, too many rejections."
Moore-Bosko's husband, William Bosko, could not be reached Wednesday. Her parents did not reply to e-mails.
The four who say their confessions were coerced - Tice, Dick, Danial Williams, and Eric Wilson - have petitioned the governor for clemency. Kevin Hall, a spokesman for Gov. Timothy M. Kaine, said the Parole Board is monitoring the Tice proceeding as part of its review of the clemency request.
Reach Michelle Washington at (757) 446-2287 or firstname.lastname@example.org.
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