- The Washington Times - Friday, November 20, 2009

RICHMOND | Prosecutors can retry an ex-sailor who received a conditional pardon from Virginia’s governor after spending 11 years in prison for the rape and murder of a fellow sailor’s wife, a federal judge ruled Thursday.

Derek Tice was one of four former sailors known as “The Norfolk Four” who claimed their confessions to the 1997 rape and murder of 18-year-old Michelle Moore-Bosko were coerced. Gov. Tim Kaine freed three of the men from prison in August, saying he had “grave doubts” about their guilt but lacked sufficient evidence to declare them innocent.

The conditional pardons left the convictions on the men’s records. Mr. Tice’s convictions were tossed out six weeks later by U.S. District Judge Richard L. Williams, who cited a defense attorney’s failure to try to suppress a confession taken after Mr. Tice had invoked his right to remain silent. Lawyers for the state and Mr. Tice disagreed on whether he could be retried in light of the governor’s conditional pardon.

Judge Williams said Thursday that Mr. Tice can be retried, and gave prosecutors 120 days to make a decision.

“This Court has not concluded that Tice is actually innocent of the crimes of which he was found guilty,” Judge Williams wrote. “Tice has not persuaded any court that he was the victim of prosecutorial misconduct. Nor is the Court persuaded that any effort to retry Tice is suggestive of prosecutorial vindictiveness.”

Desmond Hogan, an attorney for Mr. Tice, said he had hoped Judge Williams would bar a retrial. He said prosecutors don’t have to retry Mr. Tice, and he would be disappointed if they do.

“A lot of people would be shocked if they did, given the governor’s grave doubts,” Mr. Hogan said. “In light of the entire history here, it would really be a shame to put Derek through this.”

The state attorney general’s office declined to comment on Judge Williams’ order. Norfolk Commonwealth’s Attorney Gregory Underwood did not immediately respond to telephone and e-mail messages left after office hours.

Judge Williams’ rulings put Mr. Tice in an unusual position compared to the other two men who received conditional pardons. The original convictions of Danial Williams and Joseph Dick remain intact, so they are not subject to possible retrial and imprisonment like Mr. Tice. A fourth co-defendant was convicted only of rape and had already been released from prison.

Mr. Hogan said it would be unfair if Mr. Tice’s successful challenge of constitutional violations in his first trial put him in jeopardy.

“I don’t think it was the intent of the governor to expose Derek to being put back in prison,” Mr. Hogan said.

Thirty former FBI agents as well as some former prosecutors had lobbied to exonerate the Norfolk Four. The four sailors’ cause also was championed by novelist John Grisham, who has homes in Virginia and Mississippi.

A fifth man convicted in the case, Omar Ballard, has said he alone raped and killed Moore-Bosko, whose sailor husband was at sea when she was slain in her apartment. His was the only DNA found at the scene, and Mr. Kaine said his was the only confession that contained information matching the crime scene.

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