RICHMOND, Va. (AP) - The Innocence Project has joined the effort to free a man who is serving a prison term for a sexual assault a woman now says never happened.
Jonathan Montgomery was convicted in 2008 of sexually assaulting a neighbor outside her grandmother's house in Hampton in 2000 when he was 14 and she was 10. Montgomery was sentenced to 7 1/2 years in prison.
Earlier this month, Hampton Circuit Judge Randolph T. West tossed Montgomery's felony convictions and ordered him released from prison.
But when relatives went to pick Montgomery up at the prison in Jarratt, they learned Attorney General Kenneth Cuccinelli's office had declared the order invalid because the judge lacked jurisdiction.
(Copyright 2012 The Associated Press. All rights reserved.)
RICHMOND (November 15, 2012) -- Statement from Brian Gottstein, director of communication, updating media on the case:
"The attorney general is required to follow the law. The court's November 9th order to vacate Mr. Montgomery's convictions, however well intentioned, is void under the law. The attorney general and his staff are working to help correct a mistake not of our making and of which we were notified only after the fact.
"In situations like this, the law prescribes that Mr. Montgomery apply for the writ of actual innocence to the Virginia Court of Appeals or seek a pardon from the governor.
"We are moving everything on our end as quickly as possible, but, technically, our only official involvement in this case thus far is as counsel to the Department of Corrections because this office responds to suits on behalf of the commonwealth and state agencies. We have offered to work with Mr. Montgomery's attorney and the local commonwealth's attorney any way we can, as has been the case with the three other actual innocence cases Attorney General Cuccinelli has been involved with, to ensure the correct procedures are followed in Mr. Montgomery's case. To do that, we think the appropriate vehicle is for Mr. Montgomery to file a petition for a writ of actual innocence with the Court of Appeals, then we can respond and the Court of Appeals can evaluate the evidence.
"As of late Wednesday afternoon, we had heard reports that Mr. Montgomery's attorney did not intend to file a writ, but rather intended to pursue bringing Virginia Department of Corrections officials into court to ask a judge to order them to follow the invalid release order. The Daily Press reported today that his position seems to have changed at least regarding the writ, and he has finally decided to prepare such a writ, which will get the process moving.
"The Daily Press also reported that the governor's office said Wednesday night that it had not received a request for pardon from Mr. Montgomery's attorney, and the attorney told the paper he was not pursuing one.
"Regarding previous dismissals made by circuit courts after the 21-day rule, we cannot speak to them without knowing what those specific cases are. When we looked into the one case that was mentioned by name yesterday, we were not advised until after the fact in that instance, and it appears the person was actually pardoned by then-Governor Kaine. If the other cases involved a local jail sentence (ie. the person was not sentenced to a state facility), we would never have seen the case because our client, the state Department of Corrections, would not have been involved in the release.
"Whether we agree with it or not, the 21-day rule is the law in Virginia, and as the lawyer for the state, the attorney general cannot and will not recommend that any court or law enforcement agency violate the law. The only avenues to overcome the 21-day rule are a writ of actual innocence or a pardon or commutation, and neither a pardon nor commutation are within the authority of the attorney general. Additionally, even if the attorney general takes a position that a writ should be granted, that does not ensure it. It is still up to the court whether it will grant the writ."
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