‘Norfolk Four’ defendant’s convictions overturned

A federal judge has overturned the rape and murder convictions of Derek Elliott Tice, one of the "Norfolk Four," ruling that his lawyers should have challenged the use of his confession at his trial.

Last month, Gov. Timothy M. Kaine granted conditional pardons to Tice and two other former sailors convicted of the rape and murder of Michelle Moore-Bosko, 18, in 1997. The fourth was freed from prison in 2005.

The four men gave conflicting confessions that they later said were false and coerced. A fifth man, Omar Ballard, also was convicted and has since said he alone committed the crimes.

Tice's confession came after he invoked his right to remain silent but police continued questioning him. In a 41-page opinion yesterday, U.S. District Judge Richard L. Williams wrote that Tice's lawyers did not perform up to constitutional standards.

Williams wrote that Tice's confession was compelling evidence of his guilt, and that without it, "the prosecution's case against Tice would be left awash in doubt."

Also, "there was no physical evidence linking Tice to the crimes," Williams wrote. Williams also noted that the DNA evidence implicated just one person, Ballard.

In 2006, Judge Everett A. Martin Jr. of Norfolk Circuit Court ruled that Tice's convictions should be tossed out because his trial lawyers failed to contest the introduction of Tice's confession, even though at least one knew that Tice had invoked his right to remain silent.

The circuit judge ruled: "There was a reasonable probability Tice would have been acquitted" had the confession not been allowed in the trial. A recording of the confession was played at his trial, and a transcript was introduced as evidence.

But the Virginia Supreme Court overturned that ruling. Tice then appealed to Williams in federal court.

Yesterday, Williams held that the Virginia Supreme Court had erred when it overturned the Norfolk judge's ruling by concluding there was "no reasonable probability of a different [trial] result" had Tice's confession been kept from the jury.

Last month, in a move that did not please either the Norfolk Four or Moore-Bosko's survivors, Kaine granted conditional pardons. Tice and the two others remaining in prison were freed but remain under supervision by authorities.

A Kaine spokesman declined to comment yesterday on Williams' ruling.

David Clementston, a spokesman for the Virginia attorney general's office, said: "We're reviewing the decision and have no comment at this time." The attorney general has the option of appealing the ruling to the 4th U.S. Circuit Court of Appeals.

Melissa Henke, one of Tice's current lawyers, said she was pleased with the ruling. While it did not affect the other three men, "from a broader perspective, what this shows is yet another chapter of the substantial injustice that involves the Norfolk Four," she said.

"It provides further evidence that the prosecution was flawed from the start and further reiterates that the governor did not afford the complete relief that Mr. Tice and the other members of the Norfolk Four are entitled to, which are absolute pardons," she added.

Contact Frank Green at (804) 649-6340 or .