Reader John Robins provides additional, and depressing, perspective on the Montgomery case, discussed in today’s post, Jonathan Montgomery: Victimized By An Unethical Tag Team Of A Vicious Teenager And An Officious Attorney General. Here is his Comment of the Day:

“It gets worse than this, actually. Although everybody acknowledges that Montgomery is innocent, he must still report to a probation officer and must register as a sex offender until the Virginia Court of Appeals grinds its way through the Petition for Writ of Actual Innocence, which may take several months, and is being handled by the Innocence Project out of D.C. I know what went on in this case and what happened because my office was involved in the defense.

“Part of the technical issues: Virginia’s quaint 21 day rule that says that a judge no longer has jurisdiction to amend a court order past 21 days from its entry (a judge can modify a sentence within 21 days or a defendant’s entry into the Department of Corections, whichever is later, but he can’t go back and find someone not guiolty after 21 days). There is a provision in the civil code that says that a judge can modify a judgment at any time if it was procured by fraud. The attorney general’s office adopts the position that subsection d of that code section does not apply to criminal cases, although there are some cases that suggest that subsection b does. It’s all very complicated. The prosecutor, by the way, agreed that the conviction should be set aside, so that this falls squarely on the shoulders of the attorney general.

“I don’t know this to be the case, but I am speculating as to how this went down. Hearing was on a Friday; judge entered the order immediately. Order is delivered Friday afternoon–prison is in the western part of the state. Conviction was in hampton, in the Tidewater area. Warden calls AG. “Do we have honor this order?” “Is it more than 21 days after the conviction?” “Oh, yes. 4 years ago.” “Then you don’t have to honor it.” Advice given without the AG even seeing the order and then refusing to consider the civil code section. This scenario is pure speculation on my part, but is based in part on one of my favorite books–”The Kidner Report: A Guide to Creative Bureaucracy”, which (as we lawyers like to talk in high-falutin’ Latin), inter alia, suggests that there is an organization known as the Sons of Bureaucracy, but more frequently known by the initials, and whose motto seems to be “There’s no point in working in a bureaucracy if you can’t be a bureaucrat.”

“I, for one, wanted to pursue the comtempt proceedings against the warden, but the conditional pardon was a faster way to get him out of the prison, so we caved on that issue. And God knows how we are going to get him out of the Sex Offender Registry once his Actual Innocence Writ goes through, but at least he’s out of jail, if not exactly free quite yet.”