Innocence case stemmed from perjury, not error
Monday, November 26, 2012
Tasked with finding the truth in Montgomery's June 23, 2008, trial in Hampton Circuit Court was Randolph T. West, a retired judge with decades of experience.
West could not be reached for comment, but the trial transcript shows he was troubled: "It's a day that I wish wasn't here, to be honest with you. I retired four years ago and I wish I was still retired, but they need judges down here and I'm helping."
"I have been doing this for 35 years, and this is probably the most difficult type of case the court has. It is a word-against-word situation," West said.
Elizabeth Paige Coast, then 18, testified that when she was 10, she was in her grandmother's yard when a 14-year-old boy from across the street named "John" pinned her against a garage, fondled her and forced her to perform a sex act.
Asked why she did not tell anyone, she said: "I didn't know what had happened. I didn't understand it, but I knew it was wrong so I thought they would get mad at me. And, plus, I was just really, really embarrassed and I didn't want to tell anybody."
Coast testified that she first told her parents in 2006. Later, she and her parents met with a counselor who recommended she report her account to police.
Her testimony was detailed, graphic and apparently convincing. Montgomery recalls she even cried. A cousin of Coast testified she once saw Montgomery hold Coast to the garage grabbing her stomach, but that nothing sexual was involved.
Montgomery, who had no prior record, was blindsided in October 2007 when police carrying handcuffs and warrants from Hampton showed up at the home in Lynn Haven, Fla., where he lived with his mother.
Montgomery's parents are divorced, and he lived in Hampton with his father from Sept. 5, 2000, to Dec. 15, 2000, when he moved to live with his mother in Iowa. They later moved to Florida.
He testified that he never engaged in any inappropriate conduct with Coast. He said he recalled an incident at the garage, but, he said, it was "grabbing her stomach and tickling her and stuff. I mean just childish stuff."
"She was a funny girl. Always laughing and smiling, running around playing with her cousin. She was nice. I mean everybody was nice at that house," Montgomery said.
In her closing argument, Leslie Siman-Tov, then the assistant commonwealth's attorney who prosecuted the case, said: "Judge, she has no ax to grind. There's no reason for her to make this up."
"She is simply telling the court what happened; if there was some kind of motive to get him in trouble, maybe that is something that I could understand, but she comes in here with no motive," Siman-Tov said.
Montgomery's lawyer, James D. Garrett, argued there was ample reason to doubt Coast.
"What do we have here? We have no physical evidence. We have no ability to go back and try to develop an alibi. And why (is) that? Because Ms. Coast waits six or seven years after the fact to come out with these allegations," Garrett argued.
Garrett complained about the prosecutor saying Coast had no reason to lie. "Well, that's not evidence, your honor. The evidence is what was presented to you from the witness stand, not whether she had a reason to lie."
"It's a he said, she said case," Garrett said. Without something to impeach Montgomery's credibility, there no reason to believe her over him, he said.
After listening to the evidence and the argument, West said: "I must say today that both the defendant and the alleged victim have made good witnesses. Both of them."
Nevertheless, said the judge, "what did the alleged victim at this point, in this case Elizabeth Coast, have to gain by coming in here six years later and saying to the court that this man did the acts that he's been charged with? I see no motive whatsoever."
"She at the time was 10 years old, and too many times I've heard over and over, even in cases of admission, where the child (said) I was afraid. I didn't want to tell. I was scared. I was embarrassed. I was afraid of what would happen to me if I reported this."
"I think the defendant is guilty, and I find him guilty as charged," the judge said.
Montgomery was convicted of forcible sodomy, aggravated sexual battery and object sexual penetration. On April 10, 2009, West gave him a 20-year sentence with 12 years and six months suspended.
Before sentencing him, West said: "I hope some day, if I'm not wrong - and God forbid that I'm wrong - that Mr. Montgomery will tell the truth to his parents as to what occurred."
Unfortunately for Montgomery and his family, West was wrong. Montgomery was telling the truth, and Coast was lying - to her parents, the police, the prosecutors and the judge.
She is now facing a perjury charge in Hampton, and Hopewell Commonwealth's Attorney Richard Newman has been appointed the special prosecutor.
Montgomery was freed from prison Tuesday night on a conditional pardon from Gov. Bob McDonnell. His lawyer, Ben Pavek, with the assistance of the Mid-Atlantic Innocence Project and others, are drafting a petition for a writ of actual innocence from the Virginia Court of Appeals.
Northwestern's Drizin said that while reading the trial transcript is not a substitute for seeing a witness testify live, there appears to be ample reasonable doubt in the case.
Coast waited six or seven years before she came forward, Drizin said. "She did not tell anyone in the intervening time frame - not a parent, a teacher, a friend.
She first claimed that the event occurred in early 2001 near her January birthday and then changed the story to say it was between Thanksgiving and Christmas after it was learned that Montgomery left Virginia in December 2000.
Drizin said he believes many prosecutors would have dropped this case once the evidence about the wrong date came out, especially in a case where the defendant has no criminal history.
"To me, however, the most disturbing thing about the case is the judge's reasoning. First, he admits that both the witnesses were credible," he said. That suggests the evidence fell "way, way short of proof beyond a reasonable doubt."
Even more disturbing, said Drizin, is the idea that the judge penalizes the defense for failing to demonstrate that the witness has a motive to lie.
"While it may be true that in the judge's experience, witnesses who fabricate testimony have a reason or motive ... it is not the defense's burden to prove anything in these cases, and the defense was punished for failing to prove a motive to lie," he said.
Drizin said that in this case the prosecutors and police officers deserve credit for doing the right thing once the victim recanted.
Anton Bell, the Hampton commonwealth's attorney, said that about a month ago Coast, who at the time worked in the records department for the Hampton police, told an officer she lied at the trial.
When police told Bell, he immediately started an investigation that included interviewing Coast on videotape, interviewing her mother, interviewing the original prosecutor and detective in the case, and contacting Montgomery's lawyer and Montgomery's parents.
He moved quickly and thoroughly, he said, for several reasons.
A prisoner convicted of sexually assaulting a child is the low man on the totem pole behind bars, Bell said. "To be in prison under those circumstances is a nightmare," he said.
And, said Bell, "your worst nightmare as a prosecutor is that you were involved in the prosecution of an innocent man."
Bell said last week that at this point he does not want to do any "Monday morning quarterbacking." But he said he wants to review what happened to be sure that if something needs fixing, that it is fixed.
Fortunately, said Bell, "it's rare that you come across a liar credible enough to go all the way to a conviction." He even tracked down the original court reporter who told him Coast was a convincing witness.
He and Pavek sought an extraordinary circuit court hearing before West on Nov. 9, where Bell told the judge that a week earlier Coast admitted to police she had lied.
"I wanted the court to understand how seriously we were taking this matter. We wanted this just as much, if not more so, than defense counsel," Bell said.
At the hearing, Bell told West that when Coast was 16, her parents confronted her when they discovered she had been performing Internet searches for sex stories. In an effort to explain what she had been doing, she claimed she had been sexually assaulted.
Asked who assaulted her, she named "John" who lived across the street from her grandmother's house and who had moved from Hampton. She did not believe police could find him since the crime had happened so many years earlier, Bell said.
According to the transcript of the Nov. 9 hearing, when West learned he erred in deciding who was telling the truth in 2008, he told Montgomery, who was in the courtroom, that "this is the court's worst nightmare."
"I can't ask you to accept my apologies for misreading witnesses. For 40 years, I have sat up here and do what I was trained to do," West said.
"You look at the witnesses, you listen to their testimony, you take certain things, such as conduct, the eye contact, etc., and you do what you think is right. I don't know how many thousands of cases I've heard over 40 years."
"You will never forget this experience, and God knows, I will never forget it," he told Montgomery. "I will live with this for the rest of my life."
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