Something We Can All Agree On: Rules

A mechanism that usually helps to reach consensus is to start out with things upon which "we can all agree."  There aren't many of them, and even what we perceived as being wholly uncontroversial can give rise to disputes. They may be minor, even trivial, but still, it's hard to find real common ground.

But one would have to think that this proposition is shared by all: A person who everyone (and by that, I mean everyone) agrees is innocent and committed no crime, but was wrongfully convicted and imprisoned, should be immediately released.  Whether he should be given a deep apology and a subway token can be the subject of vicious argument, but release?  No argument there.

And yet, there is. 

Disagreement didn't come from some crazy outlier hate group. It didn't come from some fringe pundit. It didn't come from some man-hating absolutist advocacy group. No, it came from the Attorney General of the State of Virginia, Ken Cuccinelli.  From the Washington Post:

The man is Jonathan Montgomery, age 26. In 2007, a then-teenage girl named Elizabeth Paige Coast accused Mr. Montgomery of having molested her six years earlier, when she was 10 and he was 14. It wasn’t true.

Despite the flagrant miscarriage of justice in Mr. Montgomery’s case — a stain on Virginia’s criminal justice system — no one in a position of authority has moved to set him free. The trial judge who convicted Mr. Montgomery vacated the verdict and the sentence and ordered him released. But the release was blocked over the weekend by Virginia Attorney General Ken Cuccinelli II’s office, which said the state’s Court of Appeals must first declare him innocent. That could take weeks, even months.

Jeff Gamso explains the rules that Cuccinelli found so compelling that he had to, he just had to, step in to stop this grave miscarriage of justice refusal to follow the rules:

The problem is that it's been more than 21 days since Montgomery was convicted.  Which means he has to stay in prison even though he's innocent, even though there was no crime.

"Virginia law will not allow the immediate release of Mr. Montgomery, and the attorney general is obligated to follow the law," said Brian Gottstein, the attorney general's director of communication. "Our research shows that the order from the trial court to vacate the three and a half year-old conviction appears void on its face, as the trial court does not have jurisdiction to enter the order according to Virginia's 21-day rule. Authority to get around the rule -- to pardon or commute the sentence -- does not rest with the attorney general."

Rules, after all, are rules. I mean, think what might happen if Virginia started letting innocent people out of prison right and left just because they're innocent? 

Divestiture of jurisdiction after a conviction is final is certainly a rule. So too are rules about trial readiness, about disclosure of exculpatory information, being forthright with the court.  We are system filled with rules, drowning in rules, each of which exists to serve a purpose. And on occasion, a rule exists which applies even when it serves no purpose, or serves to undermine a greater purpose.

There is a little game we play in the courtroom. We play it all the time. We agree to waive rules.  We stipulate. We rid ourselves of the yoke of a rule that serves neither party's interest and move forward to the things that matter, the issues in dispute. 

Sometimes we do this as a courtesy to our adversary. Sometimes we use it as a bargaining chip. Sometimes we do it just to avoid a waste of time that the rule would impose when neither side feels any compulsion to let the formalities swallow our lives.  In fact, some rules exist and are never used. There is a rule that at the time of arraignment, the charges must be read publicly so that the defendant is assured of knowing the allegations against him. In 30 years, I remember this being one a grand total of once. Everybody waives the reading.

So what makes this rule, the one keeping an innocent 26-year-old Jonathan Montgomery imprisoned, so much more important than any other rule in the legal system? 

The chief prosecutor in the city of Hampton, Anton Bell, agreed with Mr. Montgomery’s request that his conviction and sentence be thrown out. Hampton Circuit Court Judge Randolph T. West, who presided over Mr. Montgomery’s trial in 2008, said he was mortified to learn of Ms. Coast’s deception. “You will never forget this, and God knows, I will never forget it,” the judge told Mr. Montgomery in a hearing last week.

Clearly, the prosecutor on the case didn't demand adherence to the rule.  The judge ignored the rule and did what he had to do to right this unquestionable wrong.  Both did precisely what one would hope they would do upon learning that there was no crime, never a crime, committed by a young man in prison. Both did what any human being would do, would want to do, upon learning of this terrible wrong.

But Cuccinelli would hear nothing of it.

There has been no statement by the Attorney General explaining why, why, this had to be done. In some cases, prosecutors who learned of exoneration by DNA persisted in their belief that the defendant was guilty, despite scientific evidence to the contrary.  In other cases, they argued that despite his not having committed this crime, he was a bad and evil man who deserved to be in prison, if not for this crime then for something else.

In this case, however, the only rationale offered is the rule.  One can almost hear Cuccinelli saying, "well, I would sure like to let him free, and he sure deserves to be free, but I just can't let it happen because, well, we got rules, and without rules, it would just be an awful rule-free society. We can't let that happen. Rules are all the distinguish us from the beasts, and we must honor our rules."  Rules.

Weird how the adoration of rules pops up its ugly head only when they serve to work against the individual, even when, as here, they don't do a damn thing to serve the state.  Had Cuccinelli turned his head the other way, let Montgomery walk free as was agreed by the prosecutor, judge and defense attorney, no one would have thought ill of him for letting this violation of the rules slide. 

No state interest would have been jeopardized, nor any precedent set that would come back later to bite him in the butt.  Nothing bad would have happened at all.  And yet, some sick compulsion made him step forward to stop the freeing of an innocent man. Because of a rule?

H/T Radley Balko

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