In a lengthy pre-trial hearing Tuesday, Judge Mary Grace O’Brien sorted through what would be admissible in the re-trial of Justin Michael Wolfe for the murder of Daniel Robert Petrole Jr.
Owen Merton Barber IV testified against Wolfe at trial, but most recently told a federal judge and prosecutors that Wolfe was not involved. That judge threw out Wolfe’s conviction for the murder as well as a drug-distribution conviction.
Now a Fairfax County prosecutor has stepped in to re-try Wolfe in the Prince William Circuit Court and the defense has balked at the notion of using testimony from Wolfe’s first trial—where the federal courts found prosecutors intentionally withheld information that could have helped Wolfe’s defense.
The more curious decision came with respect to the testimony of Ian Fitzpatrick Whiffin, a witness against Wolfe in the 2002 trial who recently died. O’Brien said she would allow Whiffin’s testimony from that first trial to be used in the second trial because she believes Wolfe’s attorney at the time adequately cross-examined Whiffin. That attorney was later forced to give up his license related to work in other cases and now waits tables.
“To claim there was effective cross-examination in this case, given what we know, is ridiculous,” said defense attorney Ed MacMahon.
Prosecutor Casey Lingan suggested live trial testimony is passé.
“I understand the defense thinks live testimony is the best thing since sliced bread,” he said, but with Whiffin unavailable, “this is admissible.”
MacMahon regularly referred to the federal court’s scathing order to vacate Wolfe’s convictions, in which Judge Raymond A. Jackson called the prosecutors’ handling of the case “not only unconstitutional with regard to due process, but abhorrent to the judicial process.”
But Lingam told O’Brien that she should make her own determinations about the evidence in the case and not simply rely on the opinion of Jackson.
“This court is the gatekeeper in this case,” he said. “This court must judge for itself those opinions.”
O’Brien said Whiffin’s testimony would be allowed.
Another significant issue addressed was whether the case involved prosecutorial vindictiveness. The defense pointed out that the current drug charges against Wolfe carry a life sentence, while the previous drug charges resulted in a maximum of 30 years in prison. Lingam said it’s not possible to enhance a death sentence, meaning the higher drug charges are irrelevant. As he put it, “Death is different.”
However, if Wolfe were acquitted of murder this time, but found guilty on the drug charges he would face life in prison, rather than the 30-year sentence that was vacated in federal court.
“There are absolutely more drug charges than there were,” Irving said. “They are absolutely punished at a higher level.”
However, O’Brien said, “I do not find the prosecutorial vindictiveness threshold has been met.”
O’Brien declined to rule whether Barber’s previous trial testimony would be admitted until it becomes clear he will not testify in the case. Barber pleaded the fifth in a recent hearing. She agreed with the defense's request to ban Wolfe’s testimony from his previous trial. O’Brien also declined to restrict expert witnesses offered by prosecutors.
The case goes back to court in Prince William next week. Meanwhile, Judge Jackson has ordered all parties back to his court for a meeting Thursday.
Read more about the Justin Wolfe case:
Wolfe Trial Pushed to January
Raymond Morrogh Appointed Special Prosecutor in Justin Wolfe Case
Triggerman: Death Row Inmate is Innocent