As reported in The New York Times:
Legal Hitch Blocks Challenge to Sex Offender Status
By ADAM LIPTAK
WASHINGTON — Eric C. Wilson is no longer behind bars. But he is not free.
Mr. Wilson is one of the sailors known as the Norfolk Four, and there is every reason to think he is innocent of the rape charge that sent him to prison for more than seven years. But the conviction stands, and that means he must register as a sex offender.
He wants to clear his name, and last week the Supreme Court indicated interest in his case. All Mr. Wilson asks for is a hearing on his challenge to his conviction. But lower courts have slammed the door on him, reasoning that it is too late to consider a petition for a writ of habeas corpus because he is no longer in custody.
Mr. Wilson is working as an electrician in Texas. He was composed and polite when we spoke on Friday evening, though he sounded weary of talking about his lot. He would rather, he said, get ready for the Easter weekend. He had family coming in.
But it takes time to tick off all the ways in which the effects of his conviction will linger for the rest of his life. There is the stigma, of course. He must report to the police in person every year, keep them posted about changes in his life and check in with local authorities if he travels.
Then there are the blows that really sting. He is not eligible for jobs on many government sites. He wanted to go to Niagara Falls for his honeymoon but could not get a passport to cross to the Canadian side. He cannot adopt his young stepson.
Not just that. “I’m not allowed to go to school functions for my son,” he said.
The Norfolk Four were accused of involvement in the 1997 rape and murder of Michelle Moore-Bosko in Norfolk, Va. They had no criminal histories, and DNA evidence implicated only another man, Omar Ballard, who confessed to committing the crime by himself. No scientific evidence linked the sailors to the crime.
But the Norfolk Four confessed, under what their lawyers said was coercive questioning from Detective Robert Glenn Ford. Their confessions did not match the details at the crime scene or align with one another.
But a confession, even a false one, is a powerful thing. The three other sailors were sentenced to life in prison for murder and rape. Mr. Wilson, convicted only of rape, received a shorter sentence.
Mr. Ford, the detective, has since been convicted of extortion and making false statements to the Federal Bureau of Investigation in another case. He is serving a 12-year sentence.
In 2009, Gov. Tim Kaine granted conditional pardons to the three members of the Norfolk Four still in prison, setting them free. “I conclude that the petitioners have raised substantial doubts about their convictions and the propriety of their continued detention,” he said. But he did not exonerate them, and he did nothing for Mr. Wilson, who was already out.
“Governor Kaine just didn’t have the courage of his convictions,” said George H. Kendall, a lawyer for one of the other sailors. “Eric Wilson has just been in no man’s land ever since.”
In August, a divided three-judge panel of the federal appeals court in Richmond, Va., refused to hear Mr. Wilson’s case. The majority’s explanation was perfectly reasonable as a matter of legal logic: you have to be in custody to file a habeas petition, and Mr. Wilson was out. On the other hand, people on probation or parole are considered to be in custody when they file petitions, on the theory that they are under government control as a consequence of their convictions.
In a concurrence, Judge Andre M. Davis said the court’s precedents required him to vote against Mr. Wilson. But the judge said Mr. Wilson’s case was compelling. “Morally and legally, he is clearly entitled, in my judgment, to a judicial forum,” Judge Davis wrote.
That was the concurrence. In dissent, Judge James A. Wynn Jr., wrote that he was “deeply troubled that our legal system would be construed to prevent a person with compelling evidence of his actual innocence and wrongful conviction from accessing a forum in which to clear his name.”
“This court has the authority — indeed, the moral imperative — to grant Wilson the hearing that he seeks,” Judge Wynn wrote.
If the appeals court majority is right, though, Mr. Wilson may have just one way to get a court to look at his case: he can violate the sex-offender law and risk another prison term.
“Surely federal habeas law should not be understood to establish a Kafkaesque regime in which a wrongfully convicted and actually innocent person may challenge continuing burdensome registration requirements only by committing a new crime that will return him to prison,” Mr. Wilson’s lawyers at the Yale Law School’s Supreme Court Clinic wrote in a brief seeking Supreme Court review.
Kenneth T. Cuccinelli II, Virginia’s attorney general, did not bother to file a response, suggesting to the justices that he viewed the case — one that had so troubled two appeals court judges — as too frivolous to warrant consideration.
Last week, the Supreme Court disagreed, instructing Mr. Cuccinelli to file a brief by April 25. A spokeswoman for his office declined to comment on the case, Wilson v. Flaherty, No. 12-986.
Mr. Wilson, for his part, said he was watching the case with wary interest. He did not sound as bitter as you might expect. But he did not sound hopeful, either.