4th Cir. Affirms Overturning Death Sentence for Prosecutorial Witholding of Evidence

Justin Wolfe has been on death row in Virginia since 2002 for killing a fellow drug dealer. He was convicted based upon testimony of the shooter, Owen Barber, that Wolfe had hired him to kill the dealer. Barber later recanted and said he made that up to avoid the death penalty. His affidavit is here.

In 2010, Barber testified at Wolfe's federal habeas hearing that he fabricated Wolfe's involvement to avoid the death penalty. (He was sentenced to 60 years.) In 2011, the federal court vacated Wolfe's conviction and sentence finding he was wrongfully convicted based on the prosecution's withholding of critical evidence. Virginia appealed.

Today the 4th Circuit Court of Appeals affirmed the District Court's order vacating Wolfe's conviction and sentence, finding no error in the district court's findings. Virginia says it is disappointed and most likely will retry Wolfe. [More...]

From the Fourth Circuit opinion (Appeal: 11-6 Doc: 80.)

Specifically, the court ruled in the Brady Order that the prosecution had withheld eight items or groups of favorable and material evidence, falling into three broader categories: (1) evidence tending to impeach triggerman Barber; (2) evidence tending to impeach other prosecution witnesses who corroborated Barber’s testimony; and (3) evidence suggesting an alternate theory of the Petrole murder. The court also deemed Wolfe to be entitled to relief on his claim that the prosecution knowingly presented false testimony by Barber, in contravention of Wolfe’s Fourteenth Amendment due process rights as well as his claim that the state trial court deprived him of his rights under the Sixth and Fourteenth Amendments to an impartial jury by striking a qualified venireman for cause. Notably, the court closed its Brady Order by specifying that Wolfe’s “conviction and sentence” — both in the singular — were vacated.

....[The district court ruled ]“[i]n light of [its] finding that [Wolfe] was denied the right to due process during his state criminal trial, [he] is entitled to a new trial on all charges previously considered by the state court.”

The Fourth Circuit says:

As explained below, we need look no further than one item of the first category of evidence withheld from Wolfe’s defense by the prosecution — the evidence tending to impeach Barber — to agree with the district court that Wolfe deserves habeas corpus relief on his Brady claim and affirm the Judgment.

The Court explains:

The single, plainly momentous item of suppressed Barber impeachment evidence on which we rest today’s decision is a written police report reflecting that — before Barber ever asserted that Wolfe hired him to murder Petrole — Prince William County Detective Newsome advised Barber that he could avoid the death penalty by implicating Wolfe. See J.A. 4825-27 (the “Newsome report”). The Newsome report documents Newsome’s and fellow Detective Walburn’s conversations with Barber during an April 14, 2001 cross-country flight, returning Barber to Virginia upon his arrest in California three weeks after the
Petrole murder.

The 4th Circuit quotes Newsome's statement:

I told Barber that we knew he had killed Petrole and had a very strong case against him. But that as far as we knew he had no personal problem with Daniel Petrole but that he had killed him for someone else and we believed that person was Justin Wolfe. I explained to him that we needed the information that he had in order to arrest Wolfe. I explained again that we had a very strong case against him (Barber) and that we could stop there but that would not be right since we knew it was someone else [sic] idea. I told him that he was potentially facing a capitol [sic] murder charge in this case and that he needed to help himself. He asked me, “What do I get out of it if I tell you who the other person, the higher up, is”. I told him I could not make any promises to him, but that the Commonwealth might entertain the idea of not charging him with Capitol [sic] Murder, or that they may be willing to make a recommendation as to his sentence.

Again Barber asked about discovery and I again explained it to him. He then said, What do I get out it [sic] if I name the “higher up”. I told him that was one of his problems; that his case was so tight he really had very little to offer us. I told him it could simply be the difference between Capitol [sic] murder or First Degree, execution or life in prison, or that the Commonwealth may be willing to make a recommendation in sentencing after speaking to his attorney. I told him again that the Commonwealth’s Attorney would make these decisions and that I could not promise him anything. I pointed out that at this point he would do more good than harm for himself by cooperating with us.

The 4th Circuit says the state "inexplicably" withheld this statement from the defense, not only during trial but during Wolfe's appeal, and until the federal habeas action in 2010.

From the transcript of the habeas hearing, when Barber was being questioned:

Q. You related that several times they had said if you don’t tell us what we want, you will get capital murder?
A. Yeah.
Q. Who is they?
A. [Commonwealth’s Attorney] Ebert, [Assistant Commonwealth’s Attorney] Conway, [Barber’s attorney] Pickett, [Detective] Newsome, [and Detective] Walburn.
Q. But if my notes are correct, they never told you exactly what to say. They didn’t give you a script for the events of that night, did they?
A. A specific script for the events, no.
Q. They in fact told you what they wanted was the truth, didn’t they?
A. They said that they know Justin [Wolfe] is involved and that we know that he hired you to kill Danny [Petrole].
Q. Well, what they told you they wanted you to tell them was the truth. Wasn’t that their statement?
* * *
Wasn’t that their statement to you, that they wanted the truth?
A. Yeah. I mean, they said they wanted the truth, but at the same time they said that this is what you have got to say or you are getting the chair.

The district court ruled:

This information is favorable to Wolfe because it documents the fact that detectives first mentioned Wolfe in connection to the murder and presented Barber with the option of execution or life imprisonment in exchange for implicating someone else, well before Barber began cooperating with the Commonwealth or implicating Wolfe in the murder. Prosecutors do not dispute the fact that the report was not provided to [Wolfe]. Furthermore, the report is material because it reflects that Barber had a motive to misrepresent the facts regarding Petrole’s death.

Even though the issue of whether the withholding of the exculpatory evidence was intentional or inadvertent was not material to the decision, the 4th Circuit goes out of its way to state:

We feel compelled to acknowledge that the Commonwealth’s suppression of the Newsome report, as well as other apparent Brady materials, was entirely intentional.

The 4th Circuit agrees the withholding of the Brady material was prejudicial to Wolfe.

The prejudice inquiry requires us to determine if the Newsome report is “material” to Wolfe’s guilt, i.e., whether “there is a reasonable probability that, had the [Newsome report] been disclosed, the result of the [trial] would have been different.”

...In these circumstances, where “the jury had to believe that Barber was credible and that his version of events was in fact truthful and accurate in order to support [Wolfe’s] conviction,” the materiality of the Newsome report is manifest.

The 4th Circuit goes on to the next issue:

[T]he only remaining issue before us is whether the district court properly vacated all three of Wolfe’s convictions, including his conviction for conspiring to distribute marijuana, for which he received the statutory maximum sentence of thirty years.

It does:

We are entirely convinced by Wolfe’s contentions. Because the Commonwealth concedes that Wolfe’s trial testimony was central to his drug conspiracy conviction and sentence, and because the Commonwealth cannot prove that Wolfe would have testified if the Newsome report had not been suppressed, we agree with the district court that Wolfe is entitled to vacatur of all three of his state convictions.

One other point: Wolfe's attorney, who had never tried a capital case, made many mistakes during the trial. He was later disbarred over his handling of other cases.

Hopefully Justin Wolfe, after ten years on death row, will be released from prison pending a decision of whether to retry him.

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  • Display: Sort:
    I just wish (5.00 / 3) (#6)
    by Slayersrezo on Thu Aug 16, 2012 at 04:07:46 PM EST
    They would and could put the Prosecutor, and anyone who helped hide this evidence on trial as well.

    Want my respect, Mr. Law & Order?
    Follow the law yourself, and try to be fair.

    Rezo, Buddy! (5.00 / 2) (#7)
    by NYShooter on Thu Aug 16, 2012 at 04:31:40 PM EST
    You see, there is a God. I couldn't agree with you more.

    I never understood:

    Lives destroyed, sometimes, literally. Bankers illegally foreclose on homeowners, launder money for drug dealers & enemies of the U.S.A, and they get off with a fine. (Which the bank, not individuals, pay) They don't even have to admit to wrongdoing.


    Prosecutors, illegally, cause innocent people to be imprisoned, or worse, and what happens? They get a scolding.

    What's wrong with this picture? Whatever happened to the punishment fitting the crime?


    i wouldn't bet the rent money on it. (1.00 / 1) (#3)
    by cpinva on Thu Aug 16, 2012 at 03:08:05 PM EST
    Hopefully Justin Wolfe, after ten years on death row, will be released from prison pending a decision of whether to retry him.

    in va, prosecutors and juries never make mistakes, the most recent former republican gov. told us this. paul ebert, PWC's commonwealth's atty. doesn't like to lose, and he especially takes it personally when one of his big time cases gets overturned on appeal, which admittedly doesn't happen very often.

    my bet (and i'm born and mostly raised in va, and used to live in PWC, a heavy republican, lawnorder county), mr. wolfe shouldn't start packing anytime soon. mr. ebert will do everything he can to keep mr. wolfe behind bars, vacated jury findings or no.

    notice i expressed no particular surprise at the illegal withholding of potentially exculpatory evidence? there's a reason for this. rumors have floated about the courthouse, for years, regarding both the county police, and the commonwealth's attorney's office, regarding their "handling" of evidence.

    when the county only had a sheriff (way back in the mid-60's, when i was but a young sprout), it was not uncommon for critical evidence to be "lost", or just never entered into the official record. when the police replaced the sheriff, as the primary law enforcement group in the county, the expected rise in the level of professionalism, for one of the fastest growing counties in the country, was a big reason for the change. unfortunately, the same good ol' boys who ran the sheriff's dept. simply switched over to the police dept. they got new uniforms and cars, but the mentality remained the same.

    Of course (none / 0) (#4)
    by jbindc on Thu Aug 16, 2012 at 03:19:48 PM EST
    Mr. Wolfe's attorney deserves some of the blame here too.

    Spelling alert, Jeralyn: the post title (none / 0) (#1)
    by Anne on Thu Aug 16, 2012 at 02:34:54 PM EST
    There's an extra "t" in "Overturning," which you've written as "Ovetrturning."

    As to the case at hand, why would the Commonwealth think they could successfully try Wolfe again, given the Brady material which I assume the defense would be able to bring in at trial?

    thanks, corrected now (5.00 / 1) (#2)
    by Jeralyn on Thu Aug 16, 2012 at 02:37:37 PM EST
    and no idea why they think they could win at a new trial. Hopefully, they'll abandon that idea.

    as i said, mr. ebert hates to lose. (none / 0) (#12)
    by cpinva on Fri Aug 17, 2012 at 05:08:33 PM EST
    and no idea why they think they could win at a new trial. Hopefully, they'll abandon that idea.

    since it isn't his personal money that would pay for the re-trial, he really has little incentive to not go after mr. wolfe again.


    You (none / 0) (#8)
    by lentinel on Thu Aug 16, 2012 at 06:27:26 PM EST
    gotta love it.

    Virginia is "disappointed".

    I wish it were possible to put Virginia behind bars for 60 years.

    Reagan? (none / 0) (#11)
    by unitron on Fri Aug 17, 2012 at 05:12:03 AM EST
    Kinda forgot all about Nixon's Southern Strategy, didn't you?