Lawmakers Need to Heed the Lessons of Wrongful Conviction

Last week Virginia’s Governor and the state’s Attorney General scrambled to find a legal way to release Jonathan Montogmery from prison after his accuser admitted the sexual assault—for which he had served four years—never happened. The Washington Post railed against “balky officials in Richmond who will not move off the dime to free him” in a published opinion (here). However, the editorial also properly identified the “root problem”: Virginia’s 21-day rule.

In states across the country existing laws indicate an unacceptable lack of awareness or concern over the lessons of wrongful conviction.

Our justice system’s commitment to finality paired with tough-on-crime public sentiment contributed to establishing hurdles to post-conviction review of criminal cases. However, more than 1,000 U.S. exonerations—most hard-won in a resistant legal environment—should call into question laws or procedures that place impediments to legitimate efforts to obtain the truth in worthy cases.

Many procedures, laws, and policies are based on myths that wrongful convictions have debunked. For example, laws denying compensation to innocents wrongfully convicted because they confessed ignores what we now know about false confessions. Under certain conditions, many now discredited (such as interrogations lasting eight times the average interrogation of two hours), innocent people do confess to crimes they did not commit. Therefore, a false confession should not be used to deny compensation. Some of the conditions leading to a false confession arguably would be justification for more compensation!

Virginia’s 21-day rule appears to reflect the myths that the criminal justice system almost never convicts an innocent person and frivolous claims of innocence would cripple the system. Even in recent years as consideration was given to changing or eliminating this rule, some Virginia lawmakers remained concerned that the system would be overwhelmed by post-conviction initiatives. This has not been a problem in other states with broader opportunities.

The 21-day rule requires that any new evidence in a case can be considered only if discovered within three weeks after a conviction. According to the Richmond Times-Dispatch (here), “One exception, enacted in 2001, is the writ of actual innocence based on new DNA evidence handled by the Virginia Supreme Court; another, enacted in 2004, is the writ of actual innocence for non-DNA evidence in the Virginia Court of Appeals.”

Unfortunately, this process could leave a man acknowledged to be innocent by both defense and prosecution sitting in prison for additional weeks or months, and that prospect is exactly what raised public attention in the case of Jonathan Montgomery.

When Judge Randolph West, who had sentenced Montgomery in 2008, was presented with new evidence that Montgomery’s accuser had recanted the accusation, and that this recantation had been deemed credible, he immediately vacated Montgomery’s sentence and ordered his release.

But when Montgomery’s parents went to pick up their son from prison, they were denied. Virginia Attorney General Ken Cuccinelli had advised his client, the Department of Corrections, that Montgomery’s release could not proceed because Judge West did not have jurisdiction to vacate the conviction.

It no doubt appeared to some that Cuccinelli was being unnecessarily resistant. In fact, he has an admirable record of supporting the wrongfully convicted, as Mark Godsey noted earlier on this blog (here).

Cuccinelli backed the exoneration of Thomas E. Haynesworth, who served 27 years for a series of rapes after DNA surviving in some of the rapes matched that of a serial rapist who resembled Haynesworth.  Following Haynesworth’s 6-4 close win of his writ of actual innocence in the Virginia Court of Appeals, Cuccinelli publicly recommended reconsideration of Virginia’s standard for achieving exoneration with non-DNA new evidence. As reported (here) he said, “to have to prove by clear and convincing evidence that no reasonable juror would find beyond a reasonable doubt that someone committed a crime is mind-numbing in the extreme.”

Earlier this year Cuccinelli also supported Bennet Barbour’s request for a writ of actual innocence and asked the court to expedite the case after DNA proved that Barbour had not committed the 1978 rape for which he had been convicted and served 34 years in prison.

Nonetheless, Cuccinelli’s responsibility as attorney general is to uphold the law as it stands.

Gov. Robert F. McDonnell also has a record of supporting those wrongfully convicted. In signing legislation to grant $1,075,178 in compensation to Thomas Hainesworth, the governor said (here) , “…it is morally right for Virginia to provide him with a means to financial security and the ability to move on with his future.”

The governor publicly stated the he would turn his attention to the pardon request for Montgomery as soon as he received it. Prudence requires that both an attorney general and a governor review any such case and request before proceeding.

Just as the attorney general and the governor were restricted by Rule 21, a dissenting opinion in the Haynesworth case at the Virginia Court of Appeals indicated that the 21-day rule provided limitations in the judgment of the judge writing for the dissent, who felt that the law does not grant consideration to the attorney general’s offering of evidence of innocence. Doing so, the opinion said (here), “…was giving the attorney general de facto clemency powers reserved for the governor.”

According to this report, Cuccinelli’s office is working with the Innocence Project to amend the 21-day rule. One possibility is that the new language would enable the attorney general to join the defense in offering evidence of innocence.

Laws that reflect outdated assumptions should prompt voters to channel their frustration to their legislators. Attempts to remove this rule have failed in the past. Virginia citizens should demand that lawmakers eliminate—or at the very least amend—this law that has proven to be an obstruction to justice.

Meanwhile, Jonathan Montgomery has been released from prison through the governor’s conditional clemency (here). The petition included a letter of support from Attorney General Cuccinelli. Montgomery’s lawyers’ next efforts will be to file, along with supporting evidence, a writ of actual innocence to the Virginia Court of Appeals. Montgomery remains under the supervision of the Virginia Department of Corrections and will need to keep contact with the division of Probation and Parole. His lawyers will no doubt also seek to remove his name from the sex offender database.

With each burdensome step toward his full exoneration, Jonathan Montgomery is putting a spotlight on the need for lawmakers to better accommodate the wrongfully convicted.

3 responses to “Lawmakers Need to Heed the Lessons of Wrongful Conviction

  1. I think the work the Innocence Project is doing is a God send. My highest respect to all of you. What I would like to know is the number of plea bargins taken by the falsely accused that did their time, lost everything and now continue to be prosecuted on the Sex Offender Registry. Follow my blog or email me your story at

  2. When there is accountability and recourse for playing God with lives rather than diligently investigating a case – there will be there manipulated “guilty” pleas while the true guilty are free to murder again.

  3. Everything I’ve read deals with those that are in prision. There are many innocent people that have been wrongly convicted of crimes that have had devastating effects on their abilty to get a job and on their lives that never went to prision. It is impossible to find avenues to help these people. There seems to be a general attitude that if you don’t go to prision, that your conviction is not serious enough. This is wrong!! Especially with criminal background checks being conducted and a simple assault and battery is treated as if the person is a threat to society. Employeers are afraid of being sued and pass on anyone with a criminal record. These people become a burden to society as they aren’t able to make a living and end up needing assistance. A vicious cycle that hurts everyone.

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