A federal judge has ordered Virginia prosecutors to appear in court Thursday to discuss the re-trial of Justin Michael Wolfe and to explain why the original prosecutors are alleged to have pressured the triggerman in the case to testify on their behalf.
Wolfe spent nearly a decade on death row before murder of Daniel Robert Petrole Jr. After the U.S. Court of Appeals for the 4th Circuit upheld the decision, the state was given 120 days to re-try or release Wolfe.
A trial is set for January in Prince William County Circuit Court, so it’s unclear if the progress toward the trial concerned Jackson, who appeared more concerned about a visit paid by Prince William Commonwealth’s Attorney Paul Ebert, Assistant Commonwealth’s Attorney Richard Conway and Prince William Det. Sam Newsome to triggerman Owen Merton Barber IV just before handing the case over to a special prosecutor from Fairfax County. During that visit, it is alleged that prosecutors threatened Barber with additional prosecution for capital murder if he did not testify against Wolfe in a new trial.
“This resulted in Mr. Barber invoking his Fifth Amendment privilege,” Jackson wrote in his order. “Given the serious nature of the allegations, the Court DIRECTS the Commonwealth of Virginia at the December 13, 2012 hearing to SHOW CAUSE why the above conduct, if proven, does not constitute extraordinary circumstances warranting the Court to order Petitioner’s immediate release and bar current and future prosecutions of Wolfe on all charges related to the death of Danny Petrole and drug conspiracy crimes.”
The meeting, which Newsome confirmed in a Prince William County Circuit hearing Tuesday, was apparently recorded.
Barber testified against Wolfe in 2002, but later recanted the testimony in an affidavit. In subsequent notes written by Barber he changed his story again, but during a November 2010 hearing in the U.S. District Court for Eastern Virginia, Barber said Wolfe had nothing to do with Petrole’s murder. Prosecutors and his own attorney convinced him that testifying against Wolfe was the only way to escape the death penalty. Instead, at least two other people who have never faced prosecution told Barber to follow Petrole on the night of the murder, Barber most recently testified.
During Barber’s 2002 sentencing, Ebert told the judge Wolfe would likely not have been prosecuted without Barber’s testimony.
During a hearing in Prince William Circuit Court Tuesday, current prosecutor Casey Lingan, an assistant commonwealth’s attorney in Fairfax County, appeared to address part of Jackson’s concern. Currently, Wolfe resides in the Prince William jail, not a Virginia prison, and he is not currently being held on the original charges, Lingan said. Rather Wolfe is being held on new charges related to the murder.
Jackson’s order appears to include the new charges as well.