RICHMOND, Virginia — A man who spent four years in prison for a sexual assault he didn't commit listened in a packed courtroom Tuesday as his lawyer and Attorney General Ken Cuccinelli urged a three-judge panel to exonerate him.
Johnathan Montgomery is asking the Virginia Court of Appeals for a writ of actual innocence. A decision could take weeks or even months.
Gov. Bob McDonnell granted Montgomery a conditional pardon last year, freeing him from prison but leaving the conviction on his record while he seeks relief from the court. McDonnell had authority to grant a full pardon, but Cuccinelli said the governor's policy is to require petitioners to first exhaust their judicial remedies — and that was the "conditional" aspect of Montgomery's pardon.
Montgomery's accuser, Elizabeth Paige Coast, admitted she lied and was sentenced in August to two months in jail for committing perjury. Coast originally claimed Montgomery molested her in Hampton in 2000 when she was 10 and he was 14. She later said she made up the story when she was 17 to explain her behavior after her parents caught her looking at adult material on the Internet. She said she blamed Montgomery because he had moved out of state and she didn't think anything would happen to him.
Montgomery's attorney, Jon Talotta, said there was no evidence other than Coast's now-recanted trial testimony to support his client's conviction. That and Coast's perjury conviction separate Montgomery's case from other petitions based on recanted testimony, he said.
"Ms. Coast and Mr. Montgomery cannot both be guilty," he said. "The case has been a tragedy for everyone. But there's only one crime and that's perjury, and there's only one victim and that's Mr. Montgomery."
Cuccinelli said "there's no shade of gray in this case." He added: "It's a clear case where justice demands granting of the writ."
Judge Robert J. Humphreys expressed concern that linking the pardon to the judicial process might have created a constitutional separation of powers issue.
"I'm not sure you can pursue both simultaneously as you've done here," he said.
Cuccinelli and Talotta urged the court to set those concerns aside, citing the unique circumstances of Montgomery's case.
"How the petition got here shouldn't matter," Talotta said. "The court should look at the petition and rule on the merits."
Under state law, a petitioner gets only one opportunity to seek an innocence writ.
Montgomery, 27, and family members did not talk to reporters after the hearing.
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