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 T. S. Elliot on Ethics

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"Law is a Branch of Ethics."

T. S. Elliot


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Posted by Editor on Saturday, February 02 @ 17:57:40 MST (1674 reads)
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 Virginia's Governor Allows Innocent Man To Rot in Jail

Examine and Cross Examine

Stubborn Fools and A Innocent Man

'JONATHAN MONTGOMERY'

 Sits in Prison ~ The Innocent Man

There is Right and There is Wrong

And then there are Victims And

There is 

Malfeasance;

Misfeasance;

Nonfeasance;

And Dereliction of duty;

In theory nonfeasance is distinct from misfeasance and malfeasance. Malfeasance is any act that is illegal or wrongful. Misfeasance is an act that is legal but improperly performed. Nonfeasance, by contrast, is a failure to act that results in harm; by public officials as it appears to UARF that Virginia's Governor is carrying out in the instant matter by not immediately setting pen to paper and penning a pardon for Montgomery.

Is Virginia's Governor, Bob McDonnell,  to busy planning his run for

 Mark Warner's Senate or 

The Presidency in 2012

To Do the Right Thing?

This should be a simple affair of state, a simple thing for the Governor to cure but he elects to do nothing about it on his own even though he know about the situation.  It is a matter of no more than his picking up a pen and setting to paper a few words. He can set an innocent man free, but he has elected to do nothing about it;

The Governor shall have power to remit fines and penalties under such rules and regulations as may be prescribed by law; to grant reprieves and pardons after conviction except when the prosecution has been carried on by the House of Delegates; to remove political disabilities consequent upon conviction for offenses committed prior or subsequent to the adoption of this Constitution; and to commute capital punishment.

He shall communicate to the General Assembly, at each regular session, particulars of every case of fine or penalty remitted, of reprieve or pardon granted, and of punishment commuted, with his reasons for remitting, granting, or commuting the same. Va. Constitution Va. Con. Art. 5 § 12 (1971)

Powers vested in Governor. — In accordance with the provisions of Article V, Section 12 of the Constitution of Virginia, the power to commute capital punishment and to grant pardons or reprieves is vested in the Governor. (Code 1950, § 53-228; 1970, c. 648; 1982, c. 636.) Virginia Code § 53.1-229;

Virginia's Constitution sets no rules for the granting of a pardon by the Governor except those found in Art. 5, Sec. 5., and neither does Virginia's Code § 53.1-229.  Yet, we hear from Virginia's Attorney General that the reason the reason McDonnell has done nothing is that Montgomery's lawyer has not asked him to.  That seems to be a poor excuse for the Gov to do nothing to fix this wrong.

As for Montgomery's lawyer now filing papers and request that is a matter between those two and that may just be settled at a later time by Montgomery.

Its probably no more than a matter of economy, what can Montgomery afford to pay to get out of jail.  It is a certainty that he and his family have spent every dime they have to get to where they are now. They have provided evidence to a court and that court has ruled that there has been a miscarriage of justice.  Yet the Governor has not taken up his pen to set the man free.

 

 
 

  

COMMONWEALTH of VIRGINIA

Office of the Attorney General

Kenneth T. Cuccinelli, II

Attorney General 

 

900 East Main Street

Richmond, Virginia 23219

 804-786-2071

FAX 804-786-1991

FOR IMMEDIATE RELEASE

 

Contact: Brian Gottstein, Director of Communication

bgottstein@oag.state.va.us (best contact method)

804-786-5874

 

 

Update from AG's office on Jonathan Montgomery case in Hampton 

 

 

RICHMOND (November 15, 2012) -- Statement from Brian Gottstein, director of communication, updating media on the case:

 

"The attorney general is required to follow the law.  The court's November 9th order to vacate Mr. Montgomery's convictions, however well intentioned, is void under the law.  The attorney general and his staff are working to help correct a mistake not of our making and of which we were notified only after the fact.

 

"In situations like this, the law prescribes that Mr. Montgomery apply for the writ of actual innocence to the Virginia Court of Appeals or seek a pardon from the governor.

 

"We are moving everything on our end as quickly as possible, but, technically, our only official involvement in this case thus far is as counsel to the Department of Corrections because this office responds to suits on behalf of the commonwealth and state agencies. We have offered to work with Mr. Montgomery's attorney and the local commonwealth's attorney any way we can, as has been the case with the three other actual innocence cases Attorney General Cuccinelli has been involved with, to ensure the correct procedures are followed in Mr. Montgomery's case.  To do that,  we think the appropriate vehicle is for Mr. Montgomery to file a petition for a writ of actual innocence with the Court of Appeals, then we can respond and the Court of Appeals can evaluate the evidence.

 

"As of late Wednesday afternoon, we had heard reports that Mr. Montgomery's attorney did not intend to file a writ, but rather intended to pursue bringing Virginia Department of Corrections officials into court to ask a judge to order them to follow the invalid release order. The Daily Press reported today that his position seems to have changed at least regarding the writ, and he has finally decided to prepare such a writ, which will get the process moving.

 

"The Daily Press also reported that the governor's office said Wednesday night that it had not received a request for pardon from Mr. Montgomery's attorney, and the attorney told the paper he was not pursuing one.

 

"Regarding previous dismissals made by circuit courts after the 21-day rule, we cannot speak to them without knowing what those specific cases are. When we looked into the one case that was mentioned by name yesterday, we were not advised until after the fact in that instance, and it appears the person was actually pardoned by then-Governor Kaine. If the other cases involved a local jail sentence (ie. the person was not sentenced to a state facility), we would never have seen the case because our client, the state Department of Corrections, would not have been involved in the release.

 

"Whether we agree with it or not, the 21-day rule is the law in Virginia, and as the lawyer for the state, the attorney general cannot and will not recommend that any court or law enforcement agency violate the law.  The only avenues to overcome the 21-day rule are a writ of actual innocence or a pardon or commutation, and neither a pardon nor commutation are within the authority of the attorney general. Additionally, even if the attorney general takes a position that a writ should be granted, that does not ensure it. It is still up to the court whether it will grant the writ."

 

 

 

More about Attorney General Cuccinelli

 

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A copy of this news release may be found on the attorney general's web site here.

 

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Office of the Attorney General of Virginia | 900 East Main St | Richmond | VA | 23219

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Posted by david on Monday, November 19 @ 09:56:36 MST (3123 reads)
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 Is Accomack County's Administrator Living Up to the Claims He Makes on Web Page

Examine and Cross Examine

Is Accomack County's Administrator Living Up to the Claims He Makes on His Web Page?

Hardly would seem to be the answer after reading the reply he made to a Freedom of Information Act Request [FOIA] sent to him by Douglas Buckley of Virginia's Unalienable Rights Foundation [UARF]. 

Accomack County's Administrator's Web page says;

Steven B. Miner, Esq.

Accomack County Administrator

Part of our mission as defined by the Board of Supervisors is to run an open government - sharing data, knowledge, public records and information with the public and this site is one great way of doing that. It also serves as a place to get information from you on matters which are important to you.

We hope that this site helps us to partially meet that mission and that you find it of use. While visiting, if you have suggestions for improvements or wish to comment on anything, please send us your thoughts! Incidentally, we hope in the future to offer on-line transactions. Thank you.

Buckley asked Miner to allow Buckley to examine county records;

In short Buckley asked to examine documents that say;

What form of government the county operates under. Buckley exact words are found below;

I [Douglas Buckley] am here today in my capacity as a Senior Forensic Evidence Fellow / Civil Rights Division of the Unalienable Rights Foundation [UARF] to examine/ be given access to records . . . the indexes that reflect and/or the written proffers the governing body of Accomack County [AC] and/or the Accomack Board of Supervisors [BS] and/or by any other name they have been or maybe called, has proffered since 1634 to date whether it was proffered by ordinance or resolution or any other form of legislative act or executive act, by whatever name it might be called, that says what form of County government Accomack County operates under . . .  dealing with the form of Accomack County’s government and would make Accomack County and it government and acts in compliance with the Dillon Rule [DR] that Accomack County must comply with.

To Read the Full Text of Buckley's Letter

Miner's reply to the FOIA request does not say what document he relies on, or provide Buckley the opportunity to examine any documents in accordance with Virginia's Public Records Act [VPRA];

  • Custodians of archival public records shall keep them in fire-resistant, environmentally controlled, physically secure rooms designed to ensure proper preservation and in such arrangement as to be easily accessible. Current public records should be kept in the buildings in which they are ordinarily used. Virginia Code § 42.1-87;

  • . . . shall provide for preserving, classifying, arranging, and indexing essential public records so that such records are made available to the public. The program shall provide for making recovery copies or designate as recovery copies existing copies of such essential public records. Virginia Code § 42.1-86.

To read the full text of Miner's Reply

In response to Miner's letter/response  UARF's President, David M. Lindsey sent Mr. Miner an email;

So where is Accomack’s form of Government Here [in the attached] Mr. Miner? Where is it provided for that the county can have an administrator? Is it, that you hold your job illegally?

You gave Mr. Buckley a lot of words in your response to his VFOIA request asking for documents that say/ show the county in in compliance with the Dillon Rule but you gave nothing citing your authority to be a county administrator nor that of the county to operate.

Before you were contacted on the questions of what is Accomack’s form of government and where is Accomack’s county authority to operate as it is/has been research was conducted Via;

THE
Statutes at Large;
BEING
A COLLECTION
OF ALL THE
LAWS OF VIRGINIA
FROM THE
FIRST SESSION OF THE LEGISLATURE
IN THE YEAR 1619

thinline
PUBLISHED PURSUANT TO AN ACT OF THE GENERAL ASSEMBLY OF VIRGINIA,
PASSED ON THE FIFTH DAY OF FEBRUARY ONE THOU-
SAND EIGHT HUNDRED AND EIGHT.

and the acts of the legislature and Virginia’s Constitution to date and nothing was found/ has been found that says what you or the County is/are/have done is in accordance with Virginia law or in accordance with any treaty the United States holds with Great Britain [yes we’ve looked at all relevant treaties]. And just in case we overlooked something we have gone/come to you, the Attorney General and the Secretary of the Commonwealth to ask what form of government the county operates under and the authority for it to operate as it is. None of you have provided that information. The Secretary’s office, via Mr. Mayfield [via telephone call] went so far as to say the Secretary’s office would not respond in writing but in fact it appears to the Secretary's office the county was operating in violation of the Dillion Rule, which was and has always been UARF’s impression of Accomack County’s operations.

In previous correspondence with you and/or the county attorney, when UARF asked for a copies of any Library of Virginia form RM3 that deals with the destruction of county documents, UARF [its people/folks] was told by you both that the county has in its possession all of the documents, and that no documents had/has been destroyed since the beginning of time, the county had in possession all the documents. So now the time has come for you to answered the question, was I mislead then or am I being mislead now, do you or don’t you have the documents or form RM3. Its just that simple. Your letter to Mr. Buckley seems to me to say you don’t have them and don’t know where they are. You say maybe here or there or maybe they are elsewhere, but you know not where and or in your or the county’s possession.

In either case it appears to me that a false document, a reply to a request for documents made under the Virginia Freedom of Information Act by UARF and/or its officials, was uttered;

If any person forge a public record, or certificate, return, or attestation, of any public officer or public employee, in relation to any matter wherein such certificate, return, or attestation may be received as legal proof, or utter, or attempt to employ as true, such forged record, certificate, return, or attestation, knowing the same to be forged, he shall be guilty of a Class 4 felony. (Code 1950, § 18.1-92; 1960, c. 358; 1975, cc. 14, 15; 1976, c. 146.)Virginia Code § 18.2-168;

If any person forge any writing, other than such as is mentioned in §§ 18.2-168 and 18.2-170, to the prejudice of another's right, or utter, or attempt to employ as true, such forged writing, knowing it to be forged, he shall be guilty of a Class 5 felony. Any person who shall obtain, by any false pretense or token, the signature of another person, to any such writing, with intent to defraud any other person, shall be deemed guilty of the forgery thereof, and shall be subject to like punishment. (Code 1950, § 18.1-96; 1960, c. 358; 1975, cc. 14, 15.) Virginia Code § 18.2-172;

Since UARF previously sent a continuing preservation notice to the County, its officers and employees [whether legally elected/appointed/employed] there seems to be no need to send that 96 page document again.

This matter can be quick handled just by your simply showing the County’s compliance with the Dillon Rule, providing the legal framework under which the County operates under daily or your saying you have no such documents.

 

 

 

 

 

 

 

 




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Posted by david on Sunday, November 18 @ 23:42:32 MST (11398 reads)
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