Hampton, Va. - Everyone from the Attorney General on down to the Commonwealth's Attorney in Hampton agrees Jonathan Montgomery is innocent.
When Hampton Circuit Court opens in the morning there will be a motion waiting there for Jonathan Montgomery to be released from prison.
Hampton Chief Deputy Public Defender, Ben Pavek, faxed it today, asking that the court's order to release Montgomery be upheld.
UPDATE: Woman who accused wrongfully convicted man of sexual assault arrested
That was issued on Friday, but was blocked by the Virginia Attorney General's Office on a claim that the court didn't have jurisdiction.
Pavek says that's absurd, and he'll find out in the morning, along with NewsChannel 3, if the court will hear the new motion.
"Judge West ordered it. It's a matter of a court order being followed and it's as simple as that - it has not been followed by the Department of Corrections."
As a result Montgomery's family is angry, waiting for justice after four years of visiting their son in prison.
"There should be something in place that says this guy innocent. Let's get it done, let's get him out. Let's not make this individual spend another day behind bars because he's already spent four years."
It's all based on lies told 22-year-old Elizabeth Coast.
In 2007 she claimed Montgomery took advantage of her seven years prior when she was 10.
Then, last month, an admission that she made the whole thing up.
Now she's free on bond after being arrested for felony perjury while Jonathan Montgomery - innocent all along - is still in prison.
"There is a purely innocent man whose life was taken from him based on the word of one individual five years ago who we now know had made the entire thing up and is sitting in a Virginia prison under no legal authority whatsoever."
Statement from Attorney General:
"Virginia law will not allow the immediate release of Mr. Montgomery, and the attorney general is obligated to follow the law. 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.
"Neither the commonwealth's attorney nor the public defender gave the attorney general's office any advanced notice of the court proceeding that occurred in Hampton on Friday or any details of the circumstances surrounding the victim's recantation.
"When the order was brought to our attention on Friday by the Department of Corrections, this office immediately tried to contact the Hampton commonwealth's attorney's office and continued to try to make contact throughout the weekend to get an understanding of the recantation, but we were not able to make contact until today. We are currently investigating the recantation and the circumstances surrounding it as quickly as we can. Without those facts in hand, we could not advise anyone that relief be granted.
"In situations like this, the law prescribes that Mr. Montgomery petition the Virginia Court of Appeals for a writ of actual innocence to be released. The attorney general is investigating how he can help expedite that process.
"Attorney General Cuccinelli has a record of working to vindicate those who are innocent by joining in helping them secure writs of actual innocence. In three previous actual innocence cases in Virginia, he has worked vigorously to expedite their release."