Hampton Circuit Court Judge Randolph West vacated the charges against Montgomery and ordered his release, but the Attorney General’s office says that court did not have jurisdiction and as a result Montgomery cannot be released.
As a result, when NewsChannel 3 and Montgomery’s family went to the Greensville Correctional Facility last Friday, Jonathan Montgomery was not released.
The Attorney General’s Office says the only way Montgomery can be released is through a writ of actual innocence or a pardon or commutation from Governor Bob McDonnell.
NewsChannel 3 wanted to know why none of that has happened and why Jonathan Montgomery, an admittedly innocent man, is still locked up.
Here are the responses we got Wednesday from the Attorney General’s Office and the Governor’s Office:
Jeff Caldwell, Press Secretary for Bob McDonnell: The governor became aware of this case only yesterday afternoon. Since that time we have been monitoring the situation closely and continuously. At this time, no official request for action has been submitted to Governor McDonnell regarding Jonathan Montgomery’s case. The governor calls on Mr. Montgomery's legal counsel to expeditiously file for a writ of actual innocence, the appropriate legal procedure for extraordinary circumstances such as those implied by the accounts of this case. He hopes to hear from Mr. Montgomery's attorneys as quickly as possible. The governor is confident that the attorney general will engage in an expedited review and will file a response in accordance with the law, and that the court will give this case foremost priority on its docket.
Governor McDonnell believes in the integrity of Virginia’s criminal justice system, which includes provisions for filing a writ of actual innocence if an innocent person has been wrongly convicted.
The governor is engaged in this matter and willing to assist in any way needed to ensure that justice is done. Again, the governor urges Mr. Montgomery's legal counsel to immediately file for a writ of actual innocence.
Following up to questions by NewsChannel 3 this additional statement was released:
The governor does not grant a pardon until he has been requested to do so by a party to the crime or by the courts, and has reviewed all of the evidence of the case. There has been no direct request made to the governor to intervene in this case. Most importantly, no evidence or pleadings has been provided to the governor at this time. He cannot responsibly act absent evidence to review. For these reasons, he believes Mr. Montgomery’s attorney should follow the process to acquire a writ of actual innocence from the court, which is the proper tool to address a case such as this. The governor's heart goes out to all those impacted by this tragic situation. He wants to see justice served as quickly as possible and for that to happen all proper procedures must be followed.
Office of the Attorney General of Virginia: The attorney general, like all members of the Bar, is required to follow the law. The law to get Mr. Montgomery relief was not followed in this instance. 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.
Regarding the attorney general’s advice to the governor on a pardon, commutation, etc., because of attorney-client privilege, I cannot discuss what we have or haven’t recommended to the governor. You might want to ask Mr. Montgomery's attorneys if they have approached the governor regarding a pardon or commutation.
We cannot speak to dismissals made in the past by the circuit court after the 21-day rule 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. 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.
Tucker Martin from the Governor's office: The Governor will expeditiously review and act upon a request for pardon as soon as it is received. We have proactively reached out today to the Attorney General's office to discuss this matter and we are aware of the fact that Mr. Montgomery's attorney and other members of the defense bar are currently working his case. We welcome that assistance on behalf of Mr. Montgomery in order to ensure his constitutional rights are protected.