March 23, 2012
One of four ex-sailors who claim police intimidated them into falsely confessing to a 1997 rape and slaying seems to deserve an opportunity to challenge his conviction but may have chosen the wrong way to go about it, a federal appeals court suggested Thursday.
A three-judge panel of the 4th U.S. Circuit Court of Appeals heard arguments in the case of Eric C. Wilson of Jourdanton, Texas. Wilson is one of the "Norfolk Four," whose innocence claims drew the support of dozens of former FBI agents, ex-prosecutors and novelist John Grisham.
In 2009, then-Gov. Tim Kaine granted conditional pardons to three of the men, freeing them from their life prison terms but leaving their convictions intact. Wilson, who was convicted of rape, was ineligible for that type of relief because he had already been released after serving 8Â½ years.
Wilson is on the sex offender registry in Texas, where he works as an electrician. His lawyers claim that the conditions imposed by the registry, including mandatory re-registration every year and his inability to adopt his stepson, are so restrictive that he remains "in custody" and therefore has a right to challenge his conviction in federal court.
The appeals court seemed skeptical of that argument.
"He's not confined," Judge Paul V. Niemeyer said of Wilson. "He has to stay in touch."
Niemeyer said that while courts have consistently held that an ex-prisoner on probation remains in custody, the requirement to register as a sex offender is one of the "collateral consequences" of a felony conviction along with losing the rights to vote and to possess a gun.
Wilson's attorney, George Somerville, urged the court to "look at both the sum and the substance" of the restrictions on Wilson's liberty. Along with the requirement to go the police station and register annually, Wilson must get a new driver's license every year, his access to school grounds is restricted, and he is unable to work on jobs that require a background check, according to court papers.
But Judge Andre M. Davis said Wilson's "most profound claim" is that sex offender status has precluded him from adopting. He wondered whether there is some other way Wilson can get relief without the appeals court stretching the definition of "in custody" to cover people on the sex offender registry.
"This is a very compelling set of facts you have here," he said.
DNA evidence excluded the Norfolk Four and implicated a fifth man, Omar Ballard, who admitted that he alone raped and killed 18-year-old Michelle Moore-Bosko. The only solid evidence against the four was confessions extracted during "a corrupt detective's bull-headed pursuit of the wrong men," according to court papers.
That detective, Robert Glenn Ford, was later convicted in an unrelated case of extortion and lying to the FBI. He was sentenced to 12Â½ years in prison.
"It may be that your man is totally innocent," Niemeyer told Somerville. "He certainly has a powerful claim for it. I do believe your man has to get into court somehow."
Senior Assistant Attorney General Virginia Theisen argued, however, that the only issue before the appeals court was whether Wilson meets the "in custody" criteria for obtaining a court order to challenge his conviction. She said it is clear that he does not, because is not in prison or on probation.
"He has not established that he is in custody," Theisen said. "This is very much like not being able to possess a firearm as a felon."
Niemeyer asked if the attorney general's office would support Wilson trying another avenue back into court. Theisen said she could not make such a commitment.
"He's trying to get into court to have his petition heard," Judge James A. Wynn Jr. said. "What is the harm?"
Theisen implied that Wilson's best bet might be to seek clemency from the governor, noting that Virginia doesn't limit the number of times a person can file such a petition. The Norfolk Four all filed petitions with Kaine, but Wilson has not tried again since he was denied relief, his attorneys said after the hearing. They said they will continue to explore options.
"We are not going to quit until he is fully exonerated," attorney Stephen Northup said.
Only one of the Norfolk Four, Derek Tice, has managed to be completely cleared by the courts. Efforts continue on behalf of the others.
The appeals court typically rules several weeks after hearing arguments.