- Associated Press - Tuesday, January 1, 2013

RICHMOND — Virginia lawmakers returning to Richmond this month are expected to consider relaxing the stiff legal challenges faced by wrongly convicted inmates seeking exoneration.

The state’s “21-day rule” has received heightened scrutiny in the wake of the high-profile case of Johnathan Montgomery. The law says only an appellate court can consider new evidence of innocence presented three weeks after sentencing.

Mr. Montgomery, 26, had already served four years of a 71/2-year sentence for a sexual-assault conviction when his accuser admitted she had lied. Everyone, including prosecutors, agreed the conviction was a gross miscarriage of justice. A circuit judge exonerated Mr. Montgomery and ordered his release.

Not so fast, Attorney General Kenneth T. Cuccinelli II said. The judge lacked authority under the 21-day rule, Mr. Cuccinelli declared, and Mr. Montgomery would have to file for a “writ of actual innocence” from the Virginia Court of Appeals or ask the governor for clemency. Mr. Cuccinelli’s move upset Montgomery’s supporters but was legally correct, according to legal analysts.

Mr. Montgomery spent 12 more days in prison before Gov. Bob McDonnell, acting less than 24 hours after receiving a petition, granted a conditional pardon. Montgomery still has a criminal record and must register as a sex offender because he hasn’t been officially exonerated by the appeals court.

Cuccinelli spokesman Brian Gottstein said the attorney general was working on draft legislation to amend the innocence statute in the upcoming General Assembly session. Mr. Gottstein said one possible change would allow the attorney general to provide evidence of a petitioner’s innocence. Current law permits the attorney general only to offer evidence of guilt.

Another idea is to make one simple, but significant, word change. Current law says an inmate can be exonerated based on new evidence “upon a finding that no rational trier of fact could have found sufficient evidence beyond a reasonable doubt” supporting a conviction. The statute may be amended to change “could” to the less-stringent “would,” Mr. Gottstein said.

“Although the wording changes seem small, they would conceivably have a large impact,” Mr. Gottstein said.

Other ideas are in play, Mr. Gottstein said, “but we have several people we are working with on this, and it would be inappropriate to disclose when not all has been hashed out.”

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