A federal judge Wednesday ordered the release within 10 days of former death row inmate Justin Wolfe who was convicted of the 2001 murder-for-hire of Daniel Petrole Jr.
In addition, U.S. District Judge Raymond A. Jackson barred any retrial of Wolfe for Petrole’s death that would require the testimony of Owen Barber IV, the triggerman and key witness in Wolfe’s 2002 Prince William County trial.
A spokesman for the Virginia Attorney General’s office could not be reached for comment Wednesday but Kimberly Irving, one of Wolfe’s lawyers, said she expects the state to appeal Jackson’s ruling.
Last year Jackson tossed out Wolfe’s conviction and death sentence citing prosecutorial misconduct and gave the state 120 days to retry him. On Wednesday, Jackson found the state had exceeded the deadline.
Jackson’s order also held that a Sept. 11 visit to Barber in prison by Prince William County authorities has rendered a new trial involving Barber unfair to Wolfe.
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Irving said she believes Jackson’s ruling means that even if authorities decide they could retry Wolfe in Petrole’s slaying without Barber’s testimony, they would still be barred because Wolfe could not use Barber as a defense witness.
“This is the best Christmas present my family could have asked for,” said Wolfe’s mother, Terri Steinberg. “I pray that this nightmare for our family will end soon. It is time for Justin to come home,” she said.
Steinberg also said, “Our hearts go out to the Petrole family whose pain has only been greater due to the lies this case has brought.”
Wolfe, 31, was convicted in 2002 of hiring Barber to kill Petrole, Wolfe’s marijuana supplier, and was sentenced to death. Wolfe also was convicted of a firearms charge and conspiracy to distribute marijuana.
Barber pleaded guilty to first-degree murder and was sentenced to life in prison.
In overturning Wolfe’s convictions last year, Jackson found that prosecutors failed to provide exculpatory information to Wolfe’s trial attorneys and allowed Barber to give false testimony.
The exculpatory information included a police report showing that a detective told Barber he could avoid the death penalty by implicating Wolfe before Barber ever said Wolfe hired him to kill Petrole.
After Wolfe was convicted, Barber recanted his testimony and in 2010 he testified before Jackson that he lied about Wolfe’s involvement in order to avoid the death penalty. In August, the 4th U.S. Circuit Court of Appeals upheld Jackson’s ruling.
In September, Prince William County Commonwealth’s Attorney Paul Ebert, an assistant and a police detective visited Barber in prison.
Two days later, Ebert stepped out of the case in favor of a special prosecutor. Shortly after Fairfax County Commonwealth’s Attorney Raymond Morrogh was appointed special prosecutor, he announced he would retry Wolfe.
On Nov. 16, Wolfe’s appeal lawyers went back to Jackson asking him to enforce his ruling last year concerning the 120-day deadline.
The state argued that even if the 120-day period had expired, Wolfe had been re-indicted and was being held on new charges, not as a result of any constitutional violation.
Jackson disagreed. In his ruling Wednesday, Jackson also held that a transcript of the September prison meeting shows Prince William prosecutors told Barber his earlier plea agreement could be invalidated and he could be charged with capital murder.
And Jackson noted that after the September meeting, on the advice of his lawyer, Barber said he would be invoking his Fifth Amendment right not to testify in future proceedings.
Jackson wrote that his intent in ordering a new trial for Wolfe last year was to fix any constitutional violations suffered by Wolfe by giving the state the option of retrying him.
But instead of curing the problems, the original prosecutors, in their September visit with Barber, “permanently crystallized them,” wrote Jackson.
Wolfe cannot use Barber to help exonerate him, because the original prosecutors have “scared Barber into invoking his Fifth Amendment right to avoid self-incrimination.”
Any retrial under the present circumstances would result in the violation of Wolfe’s due process rights, Jackson ruled.
Morrogh could not be reached for comment Wednesday, and Ebert declined to comment, noting that the case was no longer his.
Steinberg said, “Though this is great news, I realize this is not over yet.”