Appeals court backs clearing record for one of Norfolk Four
April 21, 2011
By Louis Hansen
© April 21, 2011
A panel of federal appeals judges ruled Wednesday after an extensive review that one of the Norfolk Four defendants should be a free man.
The U.S. Court of Appeals for the 4th Circuit unanimously upheld a lower court's decision to grant a petition to clear the criminal record of Derek Tice, one of four former sailors convicted in the 1997 rape and murder of a Navy wife.
Attorneys for the former sailors immediately called for the state to permanently dismiss charges against the men. The ex-sailors, pardoned by then-Gov. Timothy M. Kaine in 2009, are free from prison but have felony criminal records, remain on supervised probation and are registered sex offenders. They say their criminal records have prevented them from living productive lives.
Desmond Hogan, an attorney for Tice, said the court's ruling confirms the men's innocence. "They should be allowed to live their lives," he said.
A spokesman for the Office of the Attorney General of Virginia said they are "disappointed but not surprised by the ruling." The office is reviewing the decision and its future options, the spokesman said.
The state has 90 days to appeal to the U.S. Supreme Court. If it does not appeal, Tice, now 41, will be a free man.
Tice was one of the four former sailors convicted in the rape and murder of Michelle Moore-Bosko, 18. A fifth man, Omar Ballard, confessed to committing the crime alone. Ballard's DNA was the only match from the defendants' found at the crime scene. Ballard is serving a life term in prison for the crime.
Danial Williams, Joseph Dick and Tice were in prison when Kaine issued the conditional pardons. The fourth man, Eric C. Wilson, was convicted only of rape. He served his prison term and was released before the pardon.
Tice has moved back to his family's home in North Carolina and took a job as a window washer.
In September, an appeals lawyer argued that Tice confessed to the crime after hours of questioning and an unfulfilled request to speak to an attorney. An attorney for the state argued that the trial lawyers handled the case properly and the verdict should stand.
On Wednesday, the three-judge federal appeals panel issued a 47-page opinion in which they said that Tice's lawyers, while generally very good, failed to request to have a key piece of evidence - Tice's confession - thrown out of court.
The trial attorney failed to spot a note made by a detective that stated that Tice decided "not to say any more" during the interrogation, according to the published opinion. The detectives should have stopped questioning Tice, but they continued and improperly drew a confession from him, the opinion states.
Tice maintained in court appeals that he falsely confessed under aggressive tactics by former Norfolk police detective Robert Glenn Ford. Ford was convicted in October on federal charges, including extortion, conspiracy to commit extortion and giving a false statement to investigators, unrelated to the Norfolk Four cases.
Without Tice's confession, the judges wrote, the case would have rested on the testimony of co-defendant Joseph Dick. The federal judges cast serious doubt on Dick's credibility and noted they could not overlook "the waves and troughs that made Dick's ever-changing story so difficult to stomach."
The panel ruled that, "Had the confession been suppressed, there was a reasonable probability that the jury would have returned a different verdict, and we do not see how we could reasonably conclude otherwise."
The remaining three men have appealed to clear their records in the state court. In February, a Norfolk Circuit Court judge rejected their appeals, ruling they came too late.
Lawyers for the men have filed intents to further appeal the decision.
Louis Hansen, (757) 446-2341, firstname.lastname@example.org
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