Cuccinelli fights for innocence changes

NEWPORT NEWS, Va. (WAVY) - When the General Assembly reconvenes this month, one of the hottest topics will include Johnathon Montgomery, a wrongly-convicted man who spent years behind bars for a crime he did not commit.
    
After serving four years in prison, Montgomery was released from Greensville Correctional Center in November. He was serving a sentence for an alleged sexual assault that his accuser recanted and admitted she made up.

Montgomery then found himself caught in a legal process that made it difficult for him to prove his innocence. Even when a judge ordered his release, he couldn't leave prison for another 12 days and only did so after Gov. Bob McDonnell granted him a conditional pardon.

Although he kept Montgomery behind bars at the time, Virginia Attorney General Ken Cuccinelli is trying to change the law for others who may need to prove their innocence.

Cuccinelli told WAVY.com he is still not sure if Montgomery is innocent.

"I want to see the testimony first," Cuccinelli said.

Cuccinelli will initiate legislation to ease current law that states that an inmate can only be exonerated based "no... fact could have found sufficient evidence beyond a reasonable doubt" supporting a conviction.

Cuccinelli wants to change the word "could" to the less stringent "would."  He said he also wants to fight for people like Montgomery if he thinks the evidence shows they are innocent.

"Another thought is to let my office put in evidence of innocence, not merely evidence of guilt, which is how the statute is written right now, but which allows us a free range to pursue whatever outcome we think is best," Cuccinelli said.

In other words, Cuccinelli's office would be able to use state resources to confirm innocence instead of just guilt.

Montgomery's accuser, Elizabeth Coast's recantation came more than four years after Montgomery was sentenced, outside of the 21-day rule in which new evidence can only be submitted to a Court of Appeals within 21 days of sentencing.

In Montgomery's case, Coast's recantation came in Hampton Circuit Court and the Hampton Circuit Court Judge that sentenced Montgomery ordered his release, which was not permitted by law. 

Cuccinelli does not want to change the 21-day rule, but wants a balance which makes it easier to get around the rule.

"In my view, Virginia has not struck the right balance," Cuccinelli said. "That is why I am trying to go back an improve the Writ of Actual Innocence process."

It is unsure in Montgomery's innocence hearing whether Coast will cooperate to say she lied.        

Cuccinelli pointed out these legislative changes will not get an innocent prisoner out sooner. Only a governor can do that with a pardon.