“Virginia law will not allow the immediate release of Mr. Montgomery, and the attorney general is obligated to follow the law. Our research shows that the order from the trial court to vacate the three and a half year-old conviction appears void on its face, as the trial court does not have jurisdiction to enter the order according to Virginia’s 21-day rule. Authority to get around the rule — to pardon or commute the sentence — does not rest with the attorney general.
“Neither the commonwealth’s attorney nor the public defender gave the attorney general’s office any advanced notice of the court proceeding that occurred in Hampton on Friday or any details of the circumstances surrounding the victim’s recantation.
“When the order was brought to our attention on Friday by the Department of Corrections, this office immediately tried to contact the Hampton commonwealth’s attorney’s office and continued to try to make contact throughout the weekend to get an understanding of the recantation, but we were not able to make contact until today. We are currently investigating the recantation and the circumstances surrounding it as quickly as we can. Without those facts in hand, we could not advise anyone that relief be granted.
“In situations like this, the law prescribes that Mr. Montgomery petition the Virginia Court of Appeals for a writ of actual innocence to be released. The attorney general is investigating how he can help expedite that process.
“Attorney General Cuccinelli has a record of working to vindicate those who are innocent by joining in helping them secure writs of actual innocence. In three previous actual innocence cases in Virginia, he has worked vigorously to expedite their release.”
