Ruling: Member of 'Norfolk Four' can be retried

By Larry O'Dell

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 has ruled.

Derek Tice was one of four ex-sailors known as "The Norfolk Four" who claimed that their confessions to the 1997 rape and murder of 18-year-old Michelle Moore-Bosko were coerced. Gov. Timothy M. Kaine freed three of them 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. 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 Tice had invoked his right to remain silent. Lawyers for the state and Tice disagreed on whether he could be retried in light of the governor's conditional pardon.

Williams said Thursday that 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," 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 Tice, said he had hoped Williams would bar a retrial. He said prosecutors don't have to retry 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," 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 Williams' order. David Clementson, a spokesman for the Virginia Attorney General's Office, said any decision to retry Tice would come from D.J. Hansen, a special prosecutor in Chesapeake.

Hansen, a deputy commonwealth's attorney in Chesapeake, has defended the convictions. He said in August that he stood by statements he and another prosecutor, Derek Wagner, made in a letter to the editor of The Virginian-Pilot, denouncing the bids for pardons.

"It is unfortunate that the facts of this case, as decided by the justice system, are being drowned out by a series of post-trial armchair opinions that have no scientific basis and would not be admissible in a court of law in this commonwealth," he wrote.

Hansen was not available for comment Thursday night.

Williams' rulings put 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. A fourth co-defendant, who was convicted of rape but not murder, had already been released from prison.

Hogan said it would be unfair if 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," Hogan said.

Thirty former FBI agents and some ex-prosecutors had lobbied for exoneration of The Norfolk Four. The ex-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 Kaine said his was the only confession with information matching the crime scene.

Pilot writers Patrick Wilson and Matthew Roy contributed to this report.