Triggerman: Death Row Inmate is Innocent
New information revealed from 2001 investigation of the murder of a Centreville man
Owen M. Barber IV, the admitted triggerman in the 2001 murder of Daniel Robert Petrole Jr. of Centreville, testified in federal court last week that the man who was convicted of ordering Petrole's killing and sentenced to death had nothing to do with the crime.
Justin Michael Wolfe was convicted of ordering Barber to kill Petrole in a 2002 trial in which Barber's testimony was the only direct evidence that Wolfe was involved in the murder.
Barber's testimony came during an evidentiary hearing that was being held as part of Wolfe's ongoing appeals process. The hearing, which has been continued to Nov. 16 and 17 in Norfolk, could result in Wolfe getting a new trial or in his conviction being upheld.
During Wolfe's 2002 trial, Barber described a roughly one-hour pursuit of Petrole from an apartment complex in Centreville to a house in Fairfax City and then out to Gainesville and south to Bristow. Once there, Barber said he quickly approached Petrole's car and panicked when he thought he saw Petrole reaching toward the glove compartment, presumably for a gun. At that point, Barber said, he emptied the clip of his 9mm Smith & Wesson into Petrole's car. Nine bullets hit Petrole, killing him.
Barber rushed home, changed clothes and, accompanied by Robert Martin Jr., met Wolfe and several other people at a bar in Fairfax City for a toast. Wolfe's birthday was the following weekend.
Despite testifying in 2002 that Wolfe ordered the murder to escape a drug debt, Barber on Nov. 2 reaffirmed a December 2005 affidavit, which included the following statements:
"Justin had nothing to do with the killing of Daniel Petrole … There was no agreement between Justin and me to kill Danny Petrole."
In April 2006 and several more times until the Nov. 2 hearing, Barber signed affidavits affirming his 2002 trial testimony that Wolfe ordered the murder.
Wolfe—a Chantilly High School graduate who was living back and forth between his mother's home in Chantilly and his girlfriend's apartment in Centreville around the time of the murder—has always claimed innocence in the murder. He admits guilt in a marijuana conspiracy in which he purchased multiple pounds of marijuana from Petrole on a regular basis. Wolfe and Barber were friends and also exchanged marijuana, often buying different types from each other.
Prosecutors centered their case on Barber's testimony in Wolfe's 2002 trial. Phone records and testimony from Barber's girlfriend and Martin were used to corroborate Barber's story.
In Barber's testimony in court Nov. 2, he said he lied at Wolfe's preliminary hearing, at Wolfe's trial, in several affidavits and as recently as a few weeks ago to attorneys for the state, because he felt prosecutors had left him with no other choice.
"They said they know Justin was involved and 'We know he hired you,'" Barber said last week, adding that he was told he could avoid the death penalty by talking first.
A report by Prince William police detective Sam Newsome seemingly corroborates Barber's story that Newsome first told him that prosecutors believed Wolfe ordered the murder. Then, in the days and weeks after his arrest, Barber said, prosecutors or detectives visited him in jail and pressured him to say Wolfe ordered the murder.
"They said they wanted the truth, but at the same time, they said this is what we want you to say to avoid the chair," Barber said. "It was basically, 'you're going to testify against Justin or you're going to get the death penalty.'"
Barber said his attorney, William Pickett, resisted any other version of events. In terms of telling what he now calls the truth, he said, "I tried to, but they didn't want to hear it. They kept pushing the same deal over and over." He said his attorney told him he needed to take the deal or face the death penalty.
Barber's 2005 affidavit, in which he absolves Wolfe of the murder, came after Wolfe completed his state appeal process and after the deadline for filing his federal habeas corpus petition. When the case previously landed in the Eastern District Court of Virginia, the court denied Wolfe's claims, resulting in an appeal at the 4th Circuit Court of Appeals in Richmond. There, a judge ordered the district court to hold an evidentiary hearing.
Tuesday's proceeding marked the first half of that evidentiary hearing. Regardless of the decision in the hearing—the judge could uphold Wolfe's conviction, order a new trial or acknowledge a legal violation that was not substantial enough to reverse the conviction—it likely will be appealed again to the 4th Circuit by the losing side.
The corporate law firm King & Spalding has taken Wolfe's case pro bono. The firm's legal team of about a dozen people dwarfed the two attorneys representing the state. Daniel J. King, Alan R. Dial and Brian Meiners presented evidence and questioned witnesses. The Virginia Capital Representation Resource Center worked with King & Spalding on the case. And the Innocence Project has been monitoring the proceedings.
The Prince William County prosecutors who tried Wolfe—Commonwealth's Attorney Paul B. Ebert and Assistant Commonwealth's Attorney Richard Conway—were called to testify. Senior assistant attorneys general Matthew P. Dullaghan and Katherine Baldwin Burnett represented the state at the hearing.
The hearing gave Wolfe his first opportunity since his 2002 trial to introduce new evidence in court, including Barber's testimony. While Wolfe's defense declined to comment about the hearing, Daniel King shared with the court the team's pleasure with Barber's words. "The testimony of Mr. Barber is exactly what we'd hoped for," King told Judge Raymond A. Jackson.
Barber testified Nov. 2 he was tired of the issue dragging on and on, leading him to tell prosecutors that he stuck to the trial story simply to get the chance to tell his story in open court. He said he signed affidavits recanting his December 2005 affidavit because he felt pressure from law enforcement. Prosecutors questioned that claim, showing him records that indicate he appears to have written at least one of those statements two days before a visit from the state police.
Wolfe's defense team also argued that they did not receive all the evidence compiled by police before Wolfe's 2002 trial. In interviews with Paul Gunning, Petrole's roommate at the time of the murder, police records presented Nov. 2 show Gunning told investigators that Petrole had numerous drug suppliers and expressed concerns about one connection. When asked if he thought that connection killed Petrole, according to the police report, Gunning responded, "It was."
Wolfe's defense argued that such information should have been supplied prior to the trial, particularly information Gunning gave police about an attempt by one of Petrole's suppliers to cut another conspirator out of the drug profits. "There are things not included in the Gunning proffer that we think are exculpatory," said Alan R. Dial, one of Wolfe's attorneys.
Ebert said he was aware that Petrole had multiple dealers but said it was not information deemed credible enough to be exculpatory—meaning that it could not have helped the defense prove Wolfe's innocence.
"There was never a rift between Mr. Petrole and anyone else to my knowledge," Ebert said at first. Then, when pressed further about the disagreement, he said, "I do remember there was some talk about that. I don't see anything exculpatory about it. Danny did not want to be part of any cutting out. That's why I did not think it was exculpatory."
Conway agreed with Ebert that the information was either not credible or not exculpatory. "I don't believe a person's belief is exculpatory. I did not see anything that would have supported that belief," he said. "I normally don't find any rumors to be exculpatory. We often find red herrings."
Conway said he did not personally review all police notes about the drug investigation, relying on detectives to provide such information, because he was focused on the homicide.
Robert F. Horan III, the attorney for Robert Martin Jr. and former Prince William prosecutor under Ebert, testified that he voluntarily gave investigators information that was protected by attorney-client privilege. Martin allowed Barber to use his car the night of the murder, testified against Wolfe at trial and called Crime Solvers several days after the murder.
Conway said prosecutors offered Martin no deal to escape charges for his testimony, but investigators with the Prince William County Police Department appear to have intimated such an offer would be extended if he cooperated, based on a recorded conversation played in court during the Nov. 2 hearing. Police investigators made the recording.
Conway said certain witnesses, including Martin and Barber, met together with prosecutors prior to trial to see if there were conflicts in their testimony. He said that on at least one issue critical to whether Martin could be charged with accessory to the crime they relied more on Martin's memory of the night than Barber's. However, Conway also said he made Wolfe's trial attorney aware of the meeting with Barber and Martin.
Conway denied coaching the witnesses or any intent to change testimony. "We certainly went over testimony with witnesses," he said. "As far as changing their story, I'm not aware of that."
He said the meeting occurred because Barber had just arrived at jail from San Diego while Martin was being questioned nearby. Martin's attorney was present. Barber's was not.
"Mr. Ebert said bring him on in," Conway explained, adding that the two witnesses disagreed about whether Barber told Martin he was going to shoot someone on the night of the murder. He described his feelings as he questioned the two that night: "I think [Martin's] a credible witness and Barber's doing his best. We believe [Martin]'s recollection is the more accurate one."
Wolfe's defense team then played a recording of an interview with Barber, in which Newsome, the detective on the case, asks whether money was discussed following the murder. After Barber initially can't recall specifics, the detective sounds pleased to hear Barber say Martin's recollection was correct, telling Barber, "That's what I'm looking for."
Conway said Nov. 2 that investigators found Martin more credible on certain points.
"We believed Mr. Martin was being truthful. He was very helpful in solving this homicide," Conway said, adding that they lacked evidence to charge him as an accessory or with selling marijuana. "It was not what we deemed sufficient to charge."
Police investigators appear to promise Martin plea agreements they had no authority to approve.
"There's such a thing as a plea agreement," one investigator can be heard saying during a recorded interview with Martin, adding that Barber was facing accessory to murder. "That means you do the crime for the time. That's what we're trying to avoid."
Conway explained that such a deal with police wouldn't be legally binding. "I do not know what the investigator was thinking when he said that," Conway said, adding that several scenarios were discussed on the recording. "This has nothing to do with a plea agreement with the commonwealth."
Judge Jackson agreed, but also kept the tapes as potential evidence of some pattern of police conduct.
Prosecutors said they made sure Barber was aware that he faces years more time in jail for perjury because he now has conflicting stories on the court record. Barber said he understood, but that he wanted to finally do the right thing.
As Dullaghan, one of the state's attorneys, peppered him with questions about whether he lied to prosecutors, Barber uttered a steady series of answers of "Yes," Yeah" and "Yep" until Jackson stepped in.
"What he said was he changed his story today to tell the truth," Jackson said, at times growing impatient with both sides in the case.
Martin, Newsome and several others are expected to testify when the hearing continues Nov. 16 and 17 and the state presents its rebuttal.
The defense called Jason Coleman, but he did not appear at the courthouse Tuesday. Jackson agreed to issue a bench warrant to have U.S. Marshals escort Coleman to court Wednesday, but he was not located.
Coleman, who did not testify at Wolfe's 2002 trial, has told varying stories over the years. Barber lived with Coleman at the time of the murder, and Barber obtained the mobile phone he regularly used and the weapon he used from Coleman in the months before the murder. Barber also signed a car over to Coleman as he fled town. Coleman bartended at the bar where Barber said Wolfe concocted the scheme and helped Barber get into a crowded club the night of the murder.