By Larry ODell, Associated Press 3/31/2012
RICHMOND, Va. (AP) A Virginia death row inmate is getting some high-powered support in his bid for freedom.
Thirty-four former judges and prosecutors have filed a friend-of-the-court brief urging a federal appeals court to affirm the reversal of Justin Michael Wolfe’s murder-for-hire conviction. A three-judge panel of the 4th U.S. Circuit Court of Appeals will hear arguments in the case on May 17.
Wolfe, now 31, was sentenced to death for the 2001 slaying of his marijuana supplier, Daniel Petrole, in Prince William County. U.S. District Judge Raymond Jackson threw out Wolfe’s conviction last July, saying the prosecution suppressed evidence and knowingly used false testimony from its star witness, shooter Owen Barber.
The Virginia attorney general’s office is appealing Jackson’s ruling.
In their brief, the former judges and prosecutors say it’s clear that Prince William prosecutors withheld from the defense two key pieces of information: that Barber originally told investigators that he acted alone in killing Petrole, and that police made an informal deal with Barber to spare him a possible death sentence in exchange for testimony implicating Wolfe.
“Barber’s testimony was the only direct evidence offered to support a finding that Wolfe hired Barber an essential element of the Commonwealth’s charge of capital murder based on a murder-for-hire theory,” the former officials wrote in the brief. “If Wolfe’s attorneys had successfully impeached Barber, so as to give the jury reasonable doubts about whether Barber was telling the truth, the jury would have been required to acquit Wolfe.”
The attorney general argued in court papers filed Thursday that there was plenty of circumstantial evidence to convict Wolfe without the shooter’s testimony, and that Barber later took back his recantation, saying he had lied to try to save a friend’s life.
Attorney L. Steven Emmert of Virginia Beach, an appellate specialist who is not involved in the Wolfe case, said a friend-of-the-court brief like the one filed by the former judges and prosecutors is likely to grab the court’s attention.
“People of that level will have instantaneous respect from members of the court,” Emmert said. “That doesn’t mean the court will automatically do what they want. But it has some special meaning.”
A spokeswoman for the attorney general’s office would not say how unusual such a brief is or how much weight it might carry.
“Various groups and organizations routinely file amicus briefs in support of prisoners in death penalty cases, but we don’t keep track of who or how many,” Caroline Gibson said.
Wolfe’s mother, Terri Steinberg, said she was overwhelmed when she saw the list of former court officials supporting her son. Among those signing the brief, which was first reported by Virginia Lawyers Weekly, are former attorneys general from Tennessee, Maryland and New Jersey, two former appeals judges and a former chief justice of the Florida Supreme Court.
“I would hope the court would realize there are many experienced judges and prosecutors and officials who agree Justin has proven his innocence,” Steinberg said. “We’re hopeful, but it’s still a little scary because the system is not always equal.”
Prince William County Commonwealth’s Attorney Paul Ebert, the lead prosecutor in the case, declined to comment.
In his ruling, Jackson wrote that the actions of Prince William prosecutors “were not only unconstitutional in regards to due process, but abhorrent to the judicial process.” They have denied any wrongdoing and said that if the conviction were tossed out they may try Wolfe again.
The case exposed a drug distribution ring in the affluent northern Virginia suburbs.
According to trial testimony, Wolfe was making $10,000 to $15,000 a month selling premium marijuana he bought from Petrole. Wolfe had been friends since high school with Barber, who sold lower-grade marijuana.
At the time of Petrole’s death, Wolfe owed him about $60,000.