ACLU encourages AG, gov to seek reform of 21-day rule

The American Civil Liberties Union of Virginia sent a letter to Governor Bob McDonnell and Attorney General Ken Cuccinelli encouraging them to take action to assist an innocent Hampton man in gaining his freedom and to reform the state’s 21-day rule.

“No person in Virginia should be deprived of liberty for crimes he or she did not commit nor held any longer than necessary once known to be innocent,” said ACLU of Virginia Executive Director Claire Gastañaga. “This is another unfortunate example of the problems stemming from Virginia’s 21-day rule. Wrongfully convicted individuals need a quicker process to have their convictions overturned and gain their freedom.”

Despite the recantation of the victim, and agreement by all involved parties – defense counsel, prosecutors and the court-that Jonathan Montgomery is an innocent man, Montgomery remains in prison. Montgomery is sitting in prison for a crime he did not commit because evidence of his innocence was not discovered until more than 21 days after his conviction. Under Virginia law, a convicted person has just 21 days to return to the circuit court to have the conviction vacated. After 21 days, the individual must appeal to the higher courts for a “writ of actual innocence.” The only other course of action is to appeal to the Governor for a pardon.

According to media reports, both the Governor and Attorney General have said they intend to help Mr. Montgomery win his freedom by using their authority to either expedite the filing of and decision on a “writ of actual innocence” or granting a pardon. The ACLU is encouraged by the Governor and Attorney General’s willingness to take action to quickly grant Mr. Montgomery his freedom.

“We are pleased to hear that the Attorney General is drafting legislation to reform 21-day rule,” added Gastañaga. “We welcome the opportunity to partner with the Governor and Attorney General to draft legislation for the upcoming session that will prevent future injustices by allowing circuit courts to consider evidence of actual innocence and set aside unjust verdicts at any time regardless of whether such evidence is discovered within 21 days after conviction.”

“Because of DNA evidence, we are seeing more and more cases of wrongful convictions,” said Gastañaga. “If we are to trust our criminal justice system, then innocent people need to have a better system for having their convictions set aside so they can more swiftly obtain their freedom for crimes they never committed.”