Lawyers, Officials, Work Through Legalities to Free Innocent Man

Mid-Atlantic Innocence Project lawyers are working through this weekend to prepare a request of Virginia Gov. Bob McDonnell for a conditional pardon for Johnathon Montgomery, 26. Montgomery has served four years in prison following his 2008 conviction of sexual assault. The crime allegedly happened eight years earlier, in 2000, when Montgomery was 14 and the victim was 10. Montgomery was convicted on the testimony of the victim who was 17 at the time she raised the accusation. Now 22, Elizabeth Coast has recanted her testimony and admitted the assault never happened.

Coast says she made up the assault as a defense and explanation to her parents who discovered her looking at sexually explicit sites on the Internet. The Daily Press first reported on this case. This ABC report also indicates that Coast is being charged with perjury for the false accusation.

According to the Daily Press (here), the case was brought to the attention of Shawn Armbrust, Executive Director of the Mid-Atlantic Innocence Project, by Hampton Deputy Public Defender Ben Pavek. The governor’s representative has said that Gov. McDonnell will review the request and act upon it quickly. Virginia Attorney General Ken Cuccinelli through a spokesman indicated that he would support the request and work with Montgomery’s legal team to expedite his release.

But even with all of this support, it will not be easy or quick for Montgomery to be restored to life unencumbered by his wrongful conviction.

This weekend’s work will be directed at simply getting Montgomery out of prison as soon as possible. If the governor grants the conditional pardon, Montgomery will still be registered as a sex offender with obligations such as meeting with a probation officer. Meanwhile, his lawyers will seek a writ of actual innocence from the Virginia Court of Appeals.

Virginia does not make it easy to be declared actually innocent, even when there is no apparent opposition. According to the Daily Press article, only four people have been freed from prison since the writ was established in 2004. As with many statutes aimed at correcting an error, the law opens the door, but not broadly. Defendants can petition only once based on DNA or other biological evidence, and once on non-biological evidence.

The case has had a few missteps as officials scrambled to correct the conviction error. As also reported (here), on Nov. 9th Circuit Court Judge Randolph West granted Montgomery’s release but Department of Corrections officers refused to obey the order. The Attorney General’s office had advised the officers that Judge West did not have the authority to release the inmate. Montgomery’s lawyers are withdrawing a request for a hearing on this issue in order to expedite the conditional pardon request of the governor.

In Virginia requirements regarding the acceptance of a witness’s recantation may also need to be addressed by Montgomery’s lawyers.

If all goes well, Montgomery will be out of prison for the holidays. A realistic expectation, based on prior cases, is that his name should be cleared and his status as a sex offender removed within a year.

We are a nation that functions by law. Unraveling a wrongful conviction has not generally been a consideration when processes and statutes were created. Our commitment to finality paired with the grave responsibility of reviewing and reversing a conviction require significant time and resources. It’s a reminder that we must do everything possible to get verdicts right the first time. And when a wrongful conviction is recognized by all officials, release and restoration of the wrongfully convicted should be fast-tracked and top priority.

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