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Va. lawmakers likely to examine innocence law

(AP) — Virginia lawmakers returning to Richmond in January are expected to consider relaxing the stiff legal challenges faced by wrongly convicted inmates seeking exoneration.

The state’s so-called “21-day rule” has received heightened scrutiny in the wake of the high-profile Johnathan Montgomery case. The law says only an appellate court can consider new evidence of innocence presented three weeks after sentencing.

Montgomery, 26, had already served four years of a 7½-year sentence for a sexual assault conviction when his accuser admitted she lied. Everyone, including prosecutors, agreed the conviction was a gross miscarriage of justice. A circuit court judge exonerated Montgomery and ordered his release.

Not so fast, Attorney General Kenneth Cuccinelli said. The judge lacked authority under the 21-day rule, Cuccinelli declared, and Montgomery would have to file for a “writ of actual innocence” from the Virginia Court of Appeals or ask the governor for clemency. Cuccinelli’s move upset Montgomery’s supporters but was legally correct, according to legal experts.

Montgomery spent 12 more days in prison before Gov. Bob McDonnell, acting less than 24 hours after receiving a petition, granted a conditional pardon. Montgomery is a free man, but still has a criminal record and must register as a sex offender because he hasn’t been officially exonerated by the appeals court.

“It’s absolutely spectacular that he is no longer incarcerated, but we’re still feeling the pain of him being convicted,” said Montgomery’s father, David Montgomery of Vale, N.C. “The pain and agony of those convictions is hanging over his head. Because the 21-day rule is in effect now, that’s what we have to work with.”

Cuccinelli spokesman Brian Gottstein said that long before the Montgomery developments, Cuccinelli was working on draft legislation to amend the innocence statute in the upcoming General Assembly session. A work group of lawyers, lawmakers and advocates — including representatives from the Innocence Project — have been helping in the effort, Gottstein said.

“One thing we may advocate is a way of getting someone out of prison when everyone agrees he should get out,” said Shawn Armbrust, executive director of the Mid-Atlantic Innocence Project. “There’s no reason an innocent guy should be sitting in prison if everyone agrees. Exactly how you’d write it, I’m not sure.”

Gottstein said one possible change would allow the attorney general to provide evidence of a petitioner’s innocence. Current law permits the attorney general to only offer evidence of guilt.

Another idea is to make one simple, but significant, word change. Current law says an inmate can be exonerated based on new evidence “upon a finding that no rational trier of fact could have found sufficient evidence beyond a reasonable doubt” supporting a conviction. The statute may be amended to change “could” to the less-stringent “would,” Gottstein said.

“Although the wording changes seem small, they would conceivably have a large impact,” Gottstein said.

Other ideas are in play, Gottstein said, “but we have several people we are working with on this, and it would be inappropriate to disclose when not all has been hashed out.”

Cuccinelli has not been reluctant to advocate for the exoneration of wrongly convicted inmates. In another noteworthy case, Cuccinelli joined Innocence Project attorneys to wipe out Thomas Haynesworth’s rape and abduction convictions after DNA evidence proved his innocence. Haynesworth was later hired to work in the mailroom of the attorney general’s office.

David Montgomery said he is optimistic that his son’s case will help convince lawmakers that change is needed.

“With the amount of media attention this has gotten, I do believe there will be a change,” he said. “I don’t know how drastic a change it will be.”

He said he would like to see circuit courts have more authority over innocence claims in cases like his son’s.

“If you have the full support of the commonwealth’s attorney and/or the attorney general’s office, what’s to argue?” he said.

– By Larry O’Dell

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