Mistaken ID sex attacker finally gets a pardon

Virginian Michael McAlister (right) has served 30 years' jail for a crime that serial rapist Norman Bruce Derr (left) confessed to. Photo / Supplied

Virginia Governor Terry McAuliffe has granted an absolute pardon to a convicted sex offender, ending a decades-long campaign by an imprisoned man whose claims of innocence were eventually supported by prosecutors and police.

Final proof that Michael Kenneth McAlister, 58, was wrongfully convicted came when a serial rapist who bore an uncanny resemblance to McAlister recently confessed to the 1986 attempted rape and kidnapping in Richmond, the Governor said.

The unconditional pardon came days before McAlister faced what his lawyers called the "Kafkaesque prospect" of being locked away for years more under a Virginia law that allows the civil commitment of sexual predators after they complete their criminal sentences.

McAlister, informed of the news by telephone, was "ecstatic, very emotional and very excited. He cried and was grateful to everyone," said one of his lawyers, Shawn Armbrust.

A spokesman for state Attorney-General Mark Herring said the office was working on McAlister's imminent release from the Dillwyn Correction Facility, in central Virginia's Piedmont region. He had served more than 28 years in the attempted rape case and a later parole violation.

McAlister was a 29-year-old carpenter living with his mother when he was identified in a photo array, and later in court, by a woman who was assaulted in the laundry room of the Town & Country apartment complex in Richmond on the night of February 23, 1986.

The 22-year-old mother was able to pull up the plaid-shirted attacker's stocking mask and get a look at his lower face. McAlister was known to police from a few alcohol-related incidents of public indecency and resembled a police sketch of the attacker drawn from the victim's description. A detective investigating the case asked McAlister to wear a plaid shirt, took his photograph and included it in a photo lineup shown to the woman.

McAlister was convicted, but the original prosecutor and lead police detective soon had doubts. It turned out that another man - Norman Bruce Derr - was a suspect in Richmond laundry room rapes.

Derr had been convicted for two earlier attempted sexual assaults and sentenced to life for a 1988 rape in Fredericksburg.

Joseph Morrissey, who as an assistant Richmond Commonwealth's Attorney prosecuted McAlister, noted that Derr "looked unbelievably like McAlister".

Both Morrissey and Detective Charles Martin told the state parole board in 1993 and then-Governor Mark Warner in 2002 that they would not have presented McAlister's photo to the witness nor charged him based on what they later learned.

Warner turned down McAlister's pardon request in 2003, in part because of the absence of DNA evidence.

A person familiar with the case said that at the time Derr had not confessed, the victim remained adamant in her identification of McAlister, and the request was not joined by the sitting Richmond Commonwealth's Attorney.

McAlister was paroled in 2004. The next year, he was arrested for driving under the influence and returned to prison.

His release was set for January 2015 but he has remained incarcerated pending a scheduled May 18 hearing in which a Richmond judge would have decided whether to hold a civil trial that is likely to have resulted in McAlister's indefinite detention at a secure state rehabilitation facility.

With renewed urgency, McAlister's legal team tracked down three retired Henrico County police detectives from suburban Richmond who said that in the weeks or months before the 1986 assault, they followed Derr to a laundry room at the Town & Country complex, saw him pulling a stocking mask over his face and thought he was planning to assault an undercover female police officer who was there as a decoy.

Board investigator Trudy Harris met Derr several times over the past six weeks. He was convicted of additional rapes and is serving five life sentences at Virginia's Nottoway Correctional Facility.

"He did in fact confess to her that he committed this particular crime," McAuliffe spokeswoman Christina Nuckols said.

- Washington Post-Bloomberg