Cuccinelli’s Office Considers Legislation to Loosen 21-day Rule

FRANK GREEN

Nov. 15, 2012

Virginia Attorney General Ken Cuccinelli is drafting legislation that could widen a narrow road to exoneration for wrongly convicted people.

His office started looking at possible changes to Virginia law after Richmond’s Thomas Haynesworth — even with the backing of Cuccinelli and two commonwealth’s attorneys — barely won writs of actual innocence in the Virginia Court of Appeals.

Now, the case in Hampton of a prisoner who cannot be freed, even by order from the judge who convicted him, might give impetus to changes in the General Assembly as public attention is drawn again to Virginia’s tough 21-day rule.

The purpose of the 21-day rule is to provide finality to convictions, which is crucial to the justice system and to victims. But the rule is arguably the toughest in the country, making it difficult — if not impossible — to prove innocence after conviction in a Virginia court without DNA.

At this point, Cuccinelli is considering seeking to have the writ changed so that it is clear the attorney general can offer evidence of innocence in appropriate cases and changing the word “could” to “would” in a key spot.

Critics say the changes under consideration by Cuccinelli are modest but welcome.

“That he’s doing anything is a big step forward because the law is close to useless,” said Betty Layne DesPortes, an area criminal defense lawyer.

In some other states, wrongly convicted people can bring new evidence of innocence back to their original trial courts years later. But in Virginia, people wrongly convicted have just 21 days after the case is finalized.

One exception, enacted in 2001, is the writ of actual innocence based on new DNA evidence handled by the Virginia Supreme Court; another, enacted in 2004, is the writ of actual innocence for non-DNA evidence in the Virginia Court of Appeals.

The laws were written after DNA proved that an innocent man, Earl Washington, had been sentenced to death for a rape and murder he did not commit. Washington was exonerated and released from prison.

Critics say that the hurdles are so high for winning a non-DNA writ of actual innocence that the law is of little value. Only four writs have been granted by the Virginia Court of Appeals — two concerned legal issues, and Haynesworth’s two, which were granted without explanation in a 6-4 vote.

In many sexual assault cases, the primary, if not sole, evidence is the accuser’s testimony.

And no writ has been granted in cases in which accusers recanted their trial testimony and said they lied against the accused. The Court of Appeals has ruled that in such cases, it must be proved the recantation is true and the trial testimony false.

That does not bode well for Jonathan C. Montgomery, 26, convicted of sexual assault in Hampton in 2009 on the now-recanted testimony of a woman who admits she lied on the stand and is facing perjury charges.

Montgomery’s lawyer, Ben Pavek, supported by Hampton Commonwealth’s Attorney Anton Bell, won an order from a Hampton circuit judge to vacate his convictions and free Montgomery last Friday — only to run into the 21-day brick wall.

The Attorney General’s Office told the Department of Corrections that the judge’s order was not valid because of the rule, and Montgomery remains in custody.

Brian Gottstein, a Cuccinelli spokesman, said that under Virginia law, the appropriate remedy for Montgomery is to petition for a writ of actual innocence based on non-DNA evidence.

“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,” Gottstein said. Montgomery’s options are to apply for the writ of actual innocence or seek a pardon from the governor.

Gov. Bob McDonnell’s office said Wednesday that, “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.”

Pavek said Wednesday evening that he will file for a writ as quickly as possible and thanked McDonnell for his interest. Pavek said he has contacted a lawyer who has filed such writs in the past for assistance.

Tucker Martin, spokesman for McDonnell, said later Wednesday that “the governor will expeditiously review and act upon a request for pardon as soon as it is received.”

“We have … 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,” Martin said.

Meanwhile, Gottstein said that his office is drafting legislation to amend the actual innocence statutes.

“We are working with advocates, including the Innocence Project, and will be working with legislators to further craft the language,” he said. “Although the wording changes … seem small, they would conceivably have a large impact.”

One change under consideration would clarify that the attorney general could offer evidence of innocence in addition to the petitioner’s lawyers.

Cuccinelli did so for Haynesworth, who was wrongly convicted in a series of assaults on area women that were committed by a serial rapist.

However, in Haynesworth’s case, the dissenting judges complained the majority that sided with Haynesworth was giving the attorney general de facto clemency powers reserved for the governor.

One judge wrote that the 2004 law could have been written to provide that the opinions of the attorney general or commonwealth’s attorneys receive weight beyond that of an accuser’s identification, or even be binding on the court, but it was not.

Among other things, the non-DNA writ requires that a petitioner show “that no rational trier of fact could have found proof of guilt beyond a reasonable doubt.”

Gottstein said his office is considering endorsing a proposal to change the word “could” to “would.” More changes are also under consideration, he said.

DesPortes said that if the attorney general has additional evidence of innocence, he already can share that with the defense. But, she said, “It is nice to have a statutory recognition that the attorney general’s position should not be assumed to be pro-guilt.”

“The second change is more interesting, but I am not sure of the impact,” she said, of changing the words “could” and “would.” DesPortes said the law should have a provision for a new trial to actually see the effect that new evidence would have on a jury.

Others also see a need for changes, including state Del. Joseph D. Morrissey, D-Henrico, a former Richmond commonwealth’s attorney who cited the Haynesworth case as an example.

“The attorney general and the commonwealth’s attorneys are all saying, ‘We got it wrong,’ and still the Court of Appeals (almost) had its hands tied 6-4. It’s not that they didn’t want to do the right thing but they’re going to follow the law,” Morrissey said.

“We’ve got to change the dealing with writ of actual innocence to a language that’s more workable,” he said. “We’ve got to change this silly 21-day rule.”

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