Wolfe to be Retried, Despite Prosecutors' Post-Habeas Misconduct

By William Peacock, Esq. on May 29, 2013 | Last updated on March 21, 2019

“Woe is the state of justice in the Commonwealth if this behavior is not extremely rare.”

Judge Stephanie Thacker, in dissent.

Justin Michael Wolfe, an alleged drug dealer once referred to as “Little Al Capone” due to the size of his operation, was convicted of hiring Owen Barber to kill Danny Petrole in 2002. Since then, evidence of prosecutorial misconduct and recantations by the triggerman, whose testimony was the only direct link to Wolfe, have led to years of state appeals and habeas petitions.

In the end, the Fourth Circuit’s holding in Wolfe II was clear: release or retry, within 120 days.

Despite violating that order, and despite continuing a pattern of shocking misconduct, the Commonwealth's Attorney will get another shot, after the Fourth Circuit reversed a lower court's order to release Wolfe immediately, without retrial.

Pages of the dissent reiterate the prosecutors' pervasive misconduct, from pre-trial through pre-retrial. They coached witnesses, failed to disclose Brady material that would've impeached multiple witnesses, and put Barber on the stand despite inconsistencies in his story.

Barber got 28 years for pulling the trigger. Wolfe received a death sentence.

One of the prosecutors explained the failure to disclose by stating that he has "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." (Protip: that's their job.)

After the recantation and the Fourth Circuit's release or retry order, which itself was a scathing criticism of the Commonwealth attorneys' actions, prosecutors Richard Conway and Paul Ebert (the "Original Prosecuting Team"), along with a police detective, visited Barber in jail and attempted to persuade him, via threats of perjury charges and a retrial on the murder charge, plus the wrath of God and Barber's dead mother, to change his story once again.

Instead of recanting, Barber invoked his Fifth Amendment rights. His services will be unavailable to either party, absent a grant of immunity from the Commonwealth. 

Both the lower court, and majority and the dissent here, agree that Wolfe was not retried within the 120 day period proscribed by the prior order. Where they differ, however, is the remedy. The lower court and the dissent feel that this is an extreme case of misconduct worthy of the ultimate remedy: a ban on retrial in state court.

The majority, mindful of stepping on state courts' toes, deferred much of the decision-making to the state court, but held that the remedy of a retrial ban is only available in "extremely rare circumstances" when there is no way to remedy the misconduct, such as a double jeopardy violation. Here, there are possibilities, such an a grant of immunity (in a footnote, the majority notes that the Commonwealth has already agreed to such a grant), compelled testimony, or even another change of heart by Barber.

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