Judge: Wolfe Trial Filled With Hearsay, Speculation

In a sweeping decision that scolded Prince William County prosecutors, U.S. District Court Judge Raymond A. Jackson has vacated the sentence and conviction of Justin Michael Wolfe, who has been on Virginia’s death row for nearly a decade.

Wolfe was convicted and sentenced in 2002 for ordering the murder of his marijuana dealer, Daniel Robert Petrole Jr. in neighboring Bristow. The triggerman in the case, Owen Merton Barber IV testified against Wolfe at trial, but told the Eastern District Court of Virginia in November 2010 that Wolfe was not involved.

Jackson found “Barber’s demeanor and candor persuasive” at the November evidentiary hearing, according to his decision.

“The Commonwealth’s capital murder case against Wolfe can best be described as tenuous,” Jackson wrote in his order. “A review of the trial proceedings unveiled witness testimony replete with hearsay and speculation.”

After so many years, Wolfe’s family was excited about the possibility of Wolfe one day walking free.

“We’re ecstatic,” said Terri Steinberg, Wolfe’s mother. “I’m just so grateful this information has come out and they might free my son.”

Brian Meiners, a King & Spalding attorney who worked on the case, said he hopes the state will see the difficulty of pursuing the case without Barber’s testimony.

A group of corporate and environmental attorneys from King & Spalding took the case on a pro bono basis and have worked with the Innocence Project’s chapter at the University of Virginia.

“We are certainly very pleased and gratified by the district court’s thorough and thoughtful opinion, and we’re hopeful that the state will accept this determination and move on,” Meiners said.

But that appears unlikely for a pair of prosecutors – Prince William
Commonwealth’s Attorney Paul Ebert and Richard Conway, an assistant commonwealth’s attorney – who have consistently reiterated their belief in Wolfe’s guilt.

Ebert did not respond to an inquiry from Patch Tuesday, but told the Washington Post and ABC New 7 that he believed the state would likely appeal the decision or retry Wolfe if Jackson’s decision stands.

Judge Jackson dismantled every argument made by prosecutors in his decision. In his order, Jackson assailed Ebert for saying he resisted giving too much information to defendants because they “are able to fabricate a defense around what it provided.

“Essentially, in an effort to ensure that no defense would be ‘fabricated,’ Ebert and Conway’s actions served to deprive Wolfe of any substantive defense in a case where is his life would rest on the jury’s verdict,” Jackson wrote.

During November’s hearing, prosecutors, who found themselves on the witness stand, said they did not turn over information the could be considered exculpatory unless they were able to validate the information, but Jackson wrote that “the Court finds no legal authority that indicates exculpatory statements must be corroborated.”

Of Conway’s testimony, Jackson said he “considers with extreme skepticism” statements by Conway that he verbally transmitted exculpatory information to Wolfe’s defense, calling such statements “self-serving.”

He also criticized Conway for not reviewing information related to the drug investigation for exculpatory information. Conway focused on the homicide investigation only.

“The individual prosecutor has a duty to learn of any favorable evidence known to the others acting on the government’s behalf in the case, including police,” Jackson wrote, citing a previous Supreme Court ruling. “Conway’s evidentiary hearing testimony reveals a failure to uphold his duty as a prosecutor to learn of the favorable evidence known by government actors."

The key figure in the case, even according to prosecutors’ past statements, was Barber, who said he gave varying stories to investigators before agreement to testify against Wolfe, which he said he did to avoid the death penalty.

During Barber’s sentencing in 2002, Ebert told a Circuit Court judge, that “Wolfe probably would not have been prosecuted” without Barber’s testimony. “As the court has repeatedly mentioned, the only direct evidence linking [Wolfe] to the capital murder was the testimony of Owen Barber,” Jackson wrote, adding that the defense was deprived of evidence that could have been used at trial to show
Barber’s inconsistencies. “The post-conviction evidentiary hearing uncovered the fact that the prosecution withheld exculpatory evidence from [Wolfe] that could have assisted the trial counsel in impeaching Barber’s testimony. In light of the commonwealth’s conduct, the commonwealth cannot be entitled to benefit from their deliberate ignorance of and/or reckless disregard for the falsities in Barber’s
testimony.”

The information prosecutors did not turn over to the defense regarding Barber alone would warrant relief in the case, Jackson said. But information related to an array of evidence against Wolfe was withheld, according to Jackson’s ruling.

“In addition to casting doubt on the prosecution’s theory of the case, the suppressed evidence points to other named individuals with motive to kill Petrole,” Jackson wrote in the order.

The following are key concerns Jackson found with the case:

1) Barber’s relationship with Petrole – defendants were denied the ability to question witnesses who told prosecutors they had been with Barber and Petrole together, that Barber owed Petrole money and that Petrole had a “hit” out on Barber.

2) Barber’s ulterior motive for testifying – Detective Sam Newsome confirms in his notes that he first told Barber that prosecutors believed Wolfe ordered the murder and whoever talked first would escape the death penalty.

3) Barber told his roommate, Jason Coleman, that he acted alone.

4) JR Martin, who testified against Wolfe and who’s care was used the night of the murder, had a verbal agreement with prosecutors indicating he would not be charged with drug crimes if he cooperated. He faced 30 years.

5) The inconsistent statements of witness Chad Hough, who testified in exchange for a lenient drug sentence from federal prosecutors.

6) Drug investigation reports indicate there was a conflict in Petrole’s drug enterprise. Specifically, he and his roommate cut a friend out of drug deal, angering him, according to reports from investigators.

7) There was a rumor that Petrole was an informant. The lead investigator regarding narcotics in the case, Greg Pass, acknowledged that whether true or not, “the fact that the rumors existed at all would be enough to create an ulterior motive for Petrole’s death,” according to the judge’s order.

8) Several witness reported seeing a second car near the scene on the night of the murder, which matched the description of two other potential suspects in the case.

Jackson also ruled that one juror was improperly excluded from the trial “These facts, combined with the prosecution’s failure to conduct a proper examination into the drug investigation further exhibit the ways in which the Commonwealth stifled a vigorous truth-seeking process in this criminal case,” Jackson wrote.

Wolfe still faces the rest of a 30-year marijuana distribution sentence imposed by the same Prince William County jury. Defense has argued that if Wolfe’s trial attorney had persuaded Wolfe to plead guilty to those charges he may have received as few as 5 years.