Atty. Gen. Cuccinelli: What now qualifies as a rising star in the Virginia GOP.
Jonathan Montgomery was recently pardoned by Virginia Governor Bob McDonald for a rape he never committed. This inherent contradiction—“We know you’re innocent, and we forgive you” —was made necessary by a sequence of events that could have been devised by Kafka, Stephen King or Mel Brooks, but unfortunately really happened. They happened because of two individuals who were absent the day basic ethics were handed out.
First and foremost in this wing of the Hall of Ethics Shame was Elizabeth Paige Coast, from the Tawana Brawley school of sociopathy. When she was a teenager in 2007, her parents caught her surfing internet porn. To deflect their anger and avoid punishment, she concocted a story about how her sex drive had been addled as a result of being sexually molested when she was ten by a neighbor hood 14-year-old, Montgomery. She thought, since his family had moved away, that nothing would happen to him. Wrong. He was arrested and she testified against him to avoid telling the truth to her parents, putting him in jail for four years before she finally decided to recant her accusation. We are told that she has been charged with one count of perjury, and was fired from her job with the police department. Not enough, not by a long shot.
Then Virginia Attorney General Ken Cuccinelli decided to pick up where Coast left off. He is, by the way, the presumptive Republican candidate for Governor in that state, turning the next election into something of an IQ test for voters. Cuccinelli blocked Montgomery’s release, even though he acknowledged that the man was innocent, and had already rotted in stir for four years, thanks to the idiot Coast. He said that the judge who had ordered Montgomery’s release lacked the jurisdiction to do so, and that absent a pardon from the Governor, Montgomery would have to serve the last two years of his sentence. The law is the law.
Let’s assume that Cuccinelli is correct on the law, since that’s his job. I don’t care, and more to the point, nobody else does. When an innocent citizen is caught in a legal Catch 22, legal officials with common sense, courage and compassion have an obligation to do the right thing, which in this case would be to allow the judge’s order releasing Montgomery to be implemented without challenge. A law that works to create undeniable injustice is no longer a valid law, and a responsible public servant will not enforce such a law. Whom or what did Cuccinelli’s officious and technical position serve? No one. Not the state, not the citizens, not respect for the law, and certainly not its victim, Montgomery. In the Attorney General’s mind, perhaps, it served Cuccinelli, who wants to be seen as an official who obeys the letter of the law, even when it is objectively stupid and wrong to do so. Take note, Virginians. What makes Cuccinelli’s stance especially bizarre is that he has advocated changes in Virginia’s laws to make it easier for wrongfully convicted prisoners to prove their innocence. What he is telling the citizens of his state is that he will aggressively enforce inexcusable laws and confounding technicalities, no matter how much damage results.
Once again, we are confronted with the system’s outrageous inadequacy in compensating the victims of unjust conviction and imprisonment, and failure to proportionately punish those responsible. Coast will get a rap on the wrist and unemployment benefits; Cuccinelli may get elected Governor of Virginia. Meanwhile, a young man whose only crime was being acquainted with a heartless fool must try to rebuild his life.
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Sources: Examiner 1, Examiner 2
Graphic: Major Convictions Blog
Ethics Alarms attempts to give proper attribution and credit to all sources of facts, analysis and other assistance that go into its blog posts. If you are aware of one I missed, or believe your own work was used in any way without proper attribution, please contact me, Jack Marshall, at jamproethics@verizon.net.
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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.
I can’t be impartial here. I consider the Virginian AG to be ambulatory offal for other reasons. Let’s just say that the only thing that surprises me is that he’s not blocked the release, nor put the victim back in jail – yet.
I don’t think it’s a case of inflexible adherence to rules, as he’s shown remarkable flexibiity in the past when it suits him.
Jack, you and the other posters have addressed the issue of the officious attorney general, and I am in full agreement. However, in regard to the vicious teenager, while I fully agree with your characterization of her in every regard and then some, I have serious questions as to whether wreaking serious consequences upon her is the way to go. Granted, that is what justice and our outrage demands, but looking at a broader picture gives a different perspective. There is no way of knowing how many men are in prison now and will be in the future based on false accusations by children, girls, and women. A heart-wrenching case was aired on Katie Couric yesterday. I personally feel there are more than most people would believe. If these girls and women, the ones who do eventually grow a conscience, come forward and recant and then are arrested and charged with a crime, the consequences for the future would be almost a foregone conclusion. Regardless of her depraved indifference at the time of the false accusation, it takes a great deal of courage for a false accuser to admit she lied. If she also knew she would likely be arrested and charged, the women willing to do this would surely be cut to a fraction with the end result being continued punishment, including a lifetime as a registered sex offender when released, for the innocent men.
The flipside of that is that by not charging the people who admit their lies, we remove any other bar on lying in the first place. Why do you believe the few of the currently improperly convicted that would be freed would outweigh the additions to the improperly convicted that we could expect?
One reason is because so many false accusations are made by children, some coerced by a parent to lie, some truly convinced an incident occurred when it in fact did not, and regardless of why they do it, they are children, and even though they may recant after they are older, even adults, they were still children. I admit I have difficulty extending total amnesty to grown women who fabricate sexual accusations against men for spite or to influence a child custody situation.
I believe there will be additions to the improperly convicted regardless. It is the easiest thing in the world to do, to accuse another person of a sexual impropriety, and since with sexual charges the attitudes are overwhelmingly guilty until proven innocent, and proving innocence when there is no evidence but the word of the accused is virtually impossible, so many falsely accused take a plea on the advice of counsel in the face of the strong possibility of what will happen if it goes to trial.
Cuccinelli isn’t much more than a partisan hack. I’ve known this since BEFORE he was elected Attorney General.
I first met Cuccinelli at a reception for Gneral Assembly members in Richmond right after he had sworn into office as AG. When I told him what I did (“public defender”), his response at first impressed me: “Oh, you’re the guys that defend the Constitution.” Upon further reflection, however, I guess I should responded, “Yes, and it’s a good thing, because you sure won’t.”