When Robert McDonnel, the current governor of Virginia was the state attorney general, in order to score points with the public in a planned bid to run for governor, like most other politicians of his ilk, he wrongfully used his office to pave the way with a "tough on criminals" approach. It was not that the criminal laws in Virginia not tough enough on crime, it was just that McDonnell wanted to use them to raise his profile, so he decided to focus on "Sexually Violent Predators," using a state law enacted in 2007 that allowed for any person charged with a "sexually violent offense" and deemed too mentally disturbed to stand trial, or to be released on parole at the end of the prison sentence, to then be "civilly committed."

The law, 37.2 - 900, known as the "SVP law" concerns persons charged with specific sexual crimes deemed heinous such as rape, rape-murder, kidnap-rape, rape of a minor, and so forth. there are eleven such offense specifically set forth in the statute and does not extend or allow for it to be extended beyond them. However, under McDonnell, the Commonwealth Attorneys began applying the law to anyone and everyone charged with any sexual offense. People charged with minor sexual offenses were then being subjected to illegal and indefinite detention, resulting in hundreds of people being held by the state without any lawful basis. It is unfortunate that no person or group within the legal profession has picked up on this problem, which has caused the state legislature to question the expense of detaining this rapidly swelling population.

ITJ has been working on this issue through the case of Mwando Amerson, who as a young man in 1999, was convinced by less than competent counsel to plead guilty to a charge of attempted rape of a minor. Amerson did not attempt to rape the teen-age girl he was found to have been in an argument with in the parking lot of a very busy mall, when bystanders came along to see what the disturbance was about, the girl claimed that Amerson attempted to rape her even though there was no physical evidence to support the claim (no torn clothing, marks, or bruises). In order to encourage Amerson into accepting a plea offer of five-years with all of it but nine-months suspended, the attorney put fear into Amerson that if he did not plead guilty and chose to stand trial, that he could be convicted and sentenced to a lot of time. However, based on the facts, Amerson should never have been arrested, more less faced with a prosecution. 

Amerson pled guilty, served nine-months and was released on unsupervised probation. A little over a year later he caught another minor charge, which served as the basis for the revocation of the remainder of the suspended sentence. Amerson was re-incarcerated in Virginia in 2003 to serve out the remainder, meaning his discharge date would have been 2007 at the latest. However, when Amerson's sentence expired, the Commonwealth Attorneys office filed for a "hold" to be placed on Amerson on the basis of the newly enacted SVP law. Amerson was not being released on parole, his sentence expired, and he was not charged with or convicted of any of the offenses listed in the law. This made no difference to the judge, even though Amerson's lawyer never bothered to raise any objection, the judge was duty bound to ensure that he had the authority-"jurisdiction" to hold Amerson. Since Amerson was not subject to the SVP law due to the nature of his charge, the judge acted in complete absence of lawful authority.

For years Amerson was told that just because the statute starts out with the phrase "anyone charged or convicted of a sexually violent offense," that it applied to him, being given the impression that any sexual offense was considered a "sexually violent offense." What Amerson and so many others were not being informed of is the rest of the statute that defines "sexually violent offense" by specifying what they are, attempted rape is not one of them. Surprisingly, no one within the Virginia legal profession has picked up on this grave misapplication of the law, nor has anyone in the Virginia legislature which actually formed a commission to figure out why so many people are being held under the SVP statute causing even greater prison overcrowding and draining the prison budget. (Duh?) 

This past year, ITJ assisted Amerson in understanding the real basis behind his detention and then filing to the federal court for the writ of habeas corpus to end his illegal detention. When recieved in the court the petition was assigned to federal judge Liam O'Grady, himself a former Commonwealth Attorney and compatriot of Robert McDonnell. Immediately O'Grady entered an order directing that Amerson could not seek the petition on the basis of being illegally detained, O'Grady declared that Amerson was "civilly committed" and needed to file as a state court prisoner attacking a state court judgment. However, Amerson was not attacking a state court judgment since no court in the state could civilly commit him, or had. Even if a state court had entered an order "civilly committing" Amerson, it would be void on its face since the state SVP law did not authorize such action for a person not charged with one of the specified offenses deemed "sexually violent."

A federal judge is not allowed to do what O'Grady did, even if he truly believed that the petition concerned an attack on a state court judgment and not an illegal detention, he was still required by law to proceed on the petition as such. However, it is believed that O'Grady concocted his position in order to prevent Amerson from successfully exposing and challenging a widespread practice in Virginia. Habeas corpus attacking an illegal detention follows a substantially different track than one attacking a state court conviction, in the latter case the federal courts attach "the presumption of correctness" to the state court action, placing the burden on the petitioner to overcome that presumption. No such presumption applies in the case of an illegal detention, in fact, the burden to prove the legitimacy of the detention is on the state or officer holding the petitioner.  

In order to make sure that O'Grady had not acted in "error," but had in fact acted maliciously and criminally to deny Amerson of his constitutional and Human rights, ITJ assisted him with filing for judicial notice, outlining the matter as done here, only in formal legal terms, and O'Grady denied it without ever addressing the fact that Amerson was not subject to the SVP law and only reiterated his baseless demand that he file as a person attacking a state court judgement. Amerson could not appeal from O'Grady's actions, even if appellate review were the proper remedy for blatant criminal conduct, because O'Grady never processed the petition and had not entered a judicial determination. For this reason, in addition to the fact that ITJ had already established that the federal judicial self-policing system in that circuit does not work, O'Grady was included in the recent renewed complaint to the House Judiciary Committee for the impeachment of a number of federal judges. 

To help ITJ help Mawondo and the hundreds of others wrongfully being held by the state of Virginia in this manner, please contribute and visit our page containing the complaint to Congress for more detail.