[1]Derr, left, and McAlister, right in 1986 photos. Image source: NYDailyNews
A Virginia man is facing the possibility of indefinite incarceration for a crime that both police and prosecutors believe he did not commit. To make matters worse, state law bars the man, Michael Kenneth McAlister, from presenting evidence of his possible innocence to a judge who could decide his fate.
“In short, Mr. McAlister finds himself facing the Kafka-esque prospect of indefinite incarceration [2] beyond his mandatory release date — all predicated on a crime that not a single person in law enforcement with knowledge of the case believes he committed,” McAlister’s attorneys wrote in an appeal to Virginia Governor Terry McAuliffe.
The lawyers hope that McAuliffe will issue a full pardon, which could prevent a civil trial where a judge could order McAlister to be detained in a state rehabilitation facility for the rest of his life.
McAlister is facing that possibility because of a 1999 Virginia state law that allows for civil commitment of “sexually violent predators.” Civil commitment means that McAlister could be held in a state mental hospital as long as a judge believes he is a threat to society. McAlister is considered a sexually violent predator because he was convicted of kidnapping and attempted rape in 1986.
Evidence of Innocence Cannot Be Used in Court
The police detective who investigated that crime in 1986 and the attorney who prosecuted McAlister now think that a criminal named Norman Bruce Derr committed the rape. Derr is a known serial rapist who is serving time for other crimes.
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“You would have to ignore logic and reason to at this point conclude that McAlister is the offender,” Richmond Commonwealth Attorney (prosecutor) Michael Herring told The Washington Post. “Potentially incarcerating him indefinitely as a sexual violent predator on the basis of a crime that he did not originally commit would do nothing more than compound the original colossal mistake.”
McAlister was convicted based on eyewitness testimony in 1987; there is no DNA evidence linking him to the crime.
Three retired police officers have sworn under oath that they saw Derr at the scene of the rape. Derr claims he is innocent of that crime but there is DNA evidence linking him to other rapes. Derr resembles McAlister.
Court Cannot Hear Evidence of Innocence
The former officers’ testimony cannot be used as evidence at a civil court hearing for McAlister scheduled for May 18. A judge will decide if a civil case that could lead to indefinite incarceration for McAlister will proceed. He faces the hearing because his prison sentence is nearly over.
Interestingly enough, McAlister was released in 2004 but sent back to prison because he had violated parole by driving drunk. McAlister now faces civil confinement because prison officials in Virginia have the power to seek commitment for inmates they believe to be mentally ill or to have a “personality disorder.”
Judges at civil hearings are more likely to sentence defendants who refuse to admit guilt even if they are innocent, The Post reported.
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