Wolfe Asks SCOTUS to Bar Re-Prosecution Due to Misconduct

By William Peacock, Esq. on February 07, 2014 | Last updated on March 21, 2019

This is definitely one of the most egregious cases of prosecutorial misconduct that you'll ever see.

We last saw former death row inmate Justin Wolfe in May 2013, when the Fourth Circuit reversed the district court's order preventing the state from re-prosecuting Wolfe for a murder-for-hire. The district court's order came after Brady violations in the original trial, a defied habeas judgment that ordered the state to retry or release Wolf within 120 days, and a wee bit of witness intimidation.

The Fourth Circuit, while sympathetic, held that federal district courts lack the power to bar state courts from re-prosecuting. Wolfe is hoping that the Supreme Court feels differently.

Who is the Prosecutor?

Meet Commonwealth's Attorney Paul B. Ebert. He is the man who withheld exculpatory evidence in the original trial and who explained to the Fourth Circuit that he routinely did so because he as "found in the past when you have information that is given to certain counsel and certain defendants, they are able to fabricate a defense around what is provided."

Yeah. He said that.

According to the cert. petition, he also threatened the triggerman, Owen Barber, with the death penalty unless he testified against Wolfe. He took a plea, committed state-sanctioned perjury, and received a 28-year sentence.

Barber later recanted. Relying on his recantation, corroborating evidence, and exculpatory evidence withheld by Ebert, the district court granted the release-or-retry habeas relief that was subsequently ignored.

Gideon, of the "a public defender" blog, notes that Ebert has thrice been nominated for a "worst prosecutor of the year award" and was once challenged in an election by a Ham Sandwich, Esq.

It Gets Worse

Ebert paid a visit to Barber, after his recantation, and again threatened him with the death penalty. Wolfe argues that the threats were intended to either force him to revert to his original testimony or abstain from testifying entirely, as Virginia allows a former witness's testimony to be read to the jury if the witness is now unavailable.

No Remedy?

The Fourth Circuit held that the remedy of a trial ban is only available in "extremely rare circumstances" when there is no way to remedy the misconduct, such as a double jeopardy violation. One might argue that this is such a situation, and there is no remedy, as the state has basically made a fair trial impossible.

Wolfe is asking the Supreme Court to clarify what authority a federal court has when a state violates a habeas order and when state officials engage in egregious misconduct that make a fair trial impossible. The Supreme Court will consider his petition during its February 21 conference.

We can't help but wonder: if the courts have no power to bar re-prosecution, what weight does an easily-ignorable federal habeas grant actually have?

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