The case of Michael McAlister, convicted for attempted rape with almost no evidence and despite the fact that a known serial rapist’s methods perfectly matched the crime and circumstances, encapsulates dozens of aspects of the broken justice system in one horrifying story.
58-year-old McAlister has been in jail for nearly thirty years for a crime even the officers who convicted him no longer believe he committed, and without a pardon for Virginia Gov. Terry McAuliffe, he may spend the rest of his life there.
His sentence was up in January, but a 1999 Virginia statute states that “sexually violent predators” may not be released to the public even after serving their court-ordered sentence. He now faces a hearing to determine his fate–at which he is legally prohibited from disputing his original conviction.
The “Richmond Times-Dispatch” has been covering this case extensively for years. According to their reports, McAlister was convicted in 1986 for the attempted rape and abduction of a 22-year-old woman. There was no DNA or physical evidence of any kind: the attacked woman simply chose his face from a lineup, while admitting that she had only ever seen part of her attacker’s face. Police chose McAlister, who had been brought in for indecent exposure in the past, for the lineup because he matched her vague description.
But here’s the catch: McAlister looks quite a bit like since-convicted serial rapist Bruce Derr, who was attacking women in that very area at that same time. And in the lineup, McAlister also happened to be the only person wearing a plaid shirt that day. The victim remembered her attacker as wearing a plaid shirt.
McAlister has always denied the crime, and in the years since his conviction even his prosecutors have admitted they no longer believe he committed it.
Not only do Derr’s other crimes match the exact pattern of this one—he wore a plaid shirt and stocking mask, and attacked women in laundry rooms, just as the attacker of McAlister’s supposed victim did—he had even threatened a female undercover cop in the very building where McAlister’s alleged victim was attacked.
In a pardon request from McAlister’s lawyers and Richmond Commonwealth Attorney Michael Herring, they state that the officers who convicted McAlister now think Derr was indeed the assailant, and that “it is highly improbable that another stocking-mask-wearing, knife-wielding, 6-foot-tall white man with shoulder-length blond hair was terrorizing women at night in the Town & Country apartment complex laundry rooms during that same period in time.”
Prosecuting commonwealth’s attorney Joe Morrissey told the Times-Dispatch, “it’s the one case out of thousands that has always troubled me. I’m literally shocked that he’s still locked up.”
On top of all this, McAlister says he does indeed have a sexual disorder—exhibitionism. But he can’t seek treatment for it in the prison system without “confessing” to the rape attempt. This exhibitionism led to him breaking parole in 2004, and sending him back to jail.
Slate’s Dahlia Lithwick unpacks the legal absurdities into which McAlister’s case has now been thrust. If he won’t admit to his crime, that increases the likelihood of him being deemed unfit for release. He also can’t dispute whether he committed the crime during the hearing. From Lithwick:
[…]
Seeking an absolute pardon is a serious remedy. But unless he is pardoned for the underlying crime that will trigger civil commitment, McAlister is trapped in a world that makes no legal sense: Nobody believes he did the crime, but he will never, ever stop doing the time. As the petition filed with McAuliffe notes: “The power of the pardon is a weighty responsibility and is not to be exercised lightly. But there is unlikely to be another non DNA-based pardon petition in which the evidence of innocence is as strong as it is here.”
Read more on the lengthy case at Slate and the Richmond Times-Dispatch.
