Wednesday, November 20, 2013

Cuccinelli argues for Montgomery's innocence

Johnathon Montgomery, who suffered a terrible injustice, is back in the news.

News story found here:,0,3925357.story

RICHMOND — Virginia Attorney General Ken Cuccinelli on Tuesday lent the power of his office — in the form of his personal court appearance — to argue that a man convicted in Hampton five years ago should be declared an innocent man.

Though the attorney general's office nearly always opposes innocence petitions, Cuccinelli is fully backing a motion filed by lawyers for Johnathon Montgomery, who was sent to prison in 2008 after a 17-year-old girl lied on the witness stand in Hampton Circuit Court.

"We have come to the conclusion that not only has justice not been done, but an injustice has been done," Cuccinelli said. His office's job, he pointed out, isn't to protect convictions, but "to seek the ends of justice."

Cuccinelli's appearance at the Virginia Court of Appeals marked only the fourth time he's argued a case since he took office nearly four years ago — with one of the other three being an innocence petition for a man who served 27 years for a rape he didn't commit.

Cuccinelli's involvement in the case came against the ironic backdrop that his office blocked Montgomery's release from prison a year ago.

The AG's office said it blocked the order not because it believed Montgomery was guilty, but because the Hampton trial court judge who issued the order did not have authority to do so. That is, under Virginia law, only higher courts can order a defendant's release more than 21 days after a trial court's judgment.

The appeals court did not make a decision Tuesday on whether to grant Montgomery's petition. There's no set timetable for the judges to make a decision, but a spokesman for Cuccinelli saying a decision could come in "weeks or months."

Montgomery, who has been free from prison since November 2012 and now lives in North Carolina, was on hand at the hearing. But he didn't testify, with lawyers and judges typically the only ones talking at appeals court hearings.

At a trial in Hampton in 2008, Elizabeth Paige Coast, who was then 17, swore under oath that Montgomery had sexually assaulted her eight years earlier, when he was 14 and she was 10. Among other things, she claimed that he had forced her to perform oral sex.

Based on Coast's testimony, Montgomery was convicted of three felony sexual assault charges. He was sentenced to 45 years behind bars, with 7.5 to serve.

But in October 2012, after Montgomery had served about four years, Coast came forward to say she had lied. She explained that she made up the story of being sexually assaulted after being caught looking at sexually explicit material online, using a fictitious assault as a way to explain her behavior.

At a hearing in November 2012, a judge ordered Montgomery released from custody. That was followed, however, by the attorney general's office blocking the order. After weeks of wrangling, Gov. Bob McDonnell granted Montgomery a conditional pardon, days before Thanksgiving.

At Tuesday's hearing, Cuccinelli pointed out that his office joined the petition after Coast was convicted of perjury in August.

Because witness recantations are not uncommon, courts don't often reverse trial decisions simply because of a witness changes their story. There can be other evidence of guilt, for example, or it can become a question of "were you lying then or are you lying now?"

But this case stands out for two reasons, Cuccinelli said.

First, Coast's perjury conviction is "unique from any prior cases in Virginia" in which a defendant was seeking a writ of actual innocence. Second, he said, "there was no other direct evidence of Johnathon Montgomery's guilt."

"Her testimony was the sole basis of Johnathon Montgomery's conviction," Cuccinelli said.

When the trial judge pronounced his guilty verdict against Montgomery, he said he saw no motive for Coast to lie. "But when Elizabeth Coast recanted, part of her recantation was an explanation of her motive to lie," Cuccinelli said. "Not only was the only piece of direct evidence removed, it was effectively reversed."

Montgomery's lawyer, Jon M. Tolatta of the Northern Virginia firm Hogan Lovells, told the court that at Coast's hearing in August, Circuit Court Judge Bonnie Jones said, "I believe you," to Coast's recent explanation for her lie.

"If that's not a finding of credibility, then I don't know what is," Tolatta said, saying it would be a "cruel irony" for Montgomery and Coast to both be convicted on one lie. "There's only been one crime here, and that's perjury, and there's only been one victim, and that's Johnathon Montgomery."

But much of Tuesday's hearing did not pertain directly to the merits of Montgomery's innocence petition.

Instead, a judge cut off Tolatta's opening statement by expressing concern over whether "the separation of powers" was violated when McDonnell issued the conditional pardon.

One of the conditions of the pardon was that Montgomery file for a writ of actual innocence. Under the pardon, if the petition is denied, then Montgomery could be subject to "immediate arrest." But if it's granted, the pardon's terms are lifted.

The three judge panel — Judge Robert J. Humphreys, Judge Rossie D. Alston Jr. and Judge Teresa M. Chafin — said they were concerned that the conditions involved a different branch of government in any way. "It's a procedural mess," Humphreys said.

Cuccinelli explained that McDonnell's philosophy was simply that all legal procedures had to be exhausted before a pardon could be considered. In issuing the conditional pardon, Cuccinelli said, McDonnell "had the obvious goal of getting Johnathon Montgomery out of prison" while he awaited the court's decision.

Cuccinelli said his office did not have communication with the governor's office over the drafting of the conditional pardon. "We need governor's offices to talk to the attorney general's office," he said at one point.

But Cuccinelli said he hoped the judges' concern would not affect Montgomery's petition for innocence. "I hope they don't base their decision on their concerns over separation of powers," he said.