A year after his office blocked Montgomery’s release from prison, Virginia Attorney General Ken Cuccinelli now says he’ll personally be involved in arguing for his innocence before the Court of Appeals of Virginia.
Montgomery was accused of sexually assaulting Elizabeth Coast when she was 10 and he was 14. She didn’t come forward with the allegations until 7 years later and it was her testimony alone that convicted Montgomery and sent him to prison.
In October 2012, Coast recanted and admitted the entire story was made up. Court documents later revealed that she made up the lie after her parents caught her looking at pornography and she used Montgomery’s name because she knew his family had moved away from Hampton.
Following her recantation, a Hampton Circuit Court Judge ordered the charges against Montgomery vacated and for him to be released from prison.
That was November 9, 2012. Late in the afternoon, as NewsChannel 3 waited with the Montgomery family outside the Greensville Correctional Facility for Johnathan to be released, the Attorney General’s Office told the Department of Corrections that the order was invalid and not to release Montgomery.
Attorney General Ken Cuccinelli says the order violated Virginia’s 21-day rule, prohibiting courts from overturning rulings three weeks after they are finalized.
“We gave our client at the beginning- the Department of Corrections – correct legal advice, which we needed to do,” Cuccinelli explained.
NewsChannel 3 then went to Richmond and asked Governor Bob McDonnell to Take Action and grant Montgomery a pardon.
Just two days before Thanksgiving, Montgomery was given a conditional pardon. That meant he was able to leave prison, but still needed to obtain a Writ of Actual Innocence in order to fully clear his name.
Montgomery had to register as a sex offender and had restrictions placed on his ability to travel.
“Certainly I watched the governor say in his press releases this man is innocent. If I’m the governor and I believe this man is innocent, I pardon him,” Cuccinelli explained. “His position has been to our office: ‘look, this process exists. I want you to go through the process.’ He wants the judicial determination if he can get it.”
Cuccinelli says he’ll now help Montgomery obtain the Writ of Actual Innocence when arguments are heard before the Court of Appeals of Virginia on November 19.
“We in the Attorney General’s office normally oppose those but we are joining his side to try and help him prove that he was innocent and try to get his conviction wiped out,” Cuccinelli stated.
In a sit-down interview with NewsChannel 3’s Todd Corillo, Cuccinelli responded to those who say the timing of his involvement appears political.
Cuccinelli, a Republican, is currently running for Governor.
“I argued the last one of these is my response to that. I am arguably the most experienced lawyer in this office,” Cuccinelli explained. “When this is argued it’s going to be November 19. It’s going to be two weeks after the election is over. I don’t think this is going to have any impact.”
Cuccinelli also says there’s nothing he could have done to help Montgomery earlier.
“Our office has done everything it could at every step,” Cuccinelli explained.
Montgomery’s Writ of Actual Innocence Petition was put on hold during the court proceedings for Elizabeth Coast’s perjury charge.
She was convicted and sentenced in August to 2 months of jail time and restitution.
“We asked the court to expedite after the perjury conviction was completed; they chose not to do that,” Cuccinelli says.
After the oral arguments on November 19, Cuccinelli says it could still be 6-8 weeks before a ruling is made.
For their part, Johnathan Montgomery and his family have chosen not to comment during the Writ of Actual Innocence process.