A Christmas Eve ruling by a federal judge could make the re-trial of Justin Michael Wolfe in the March 2001 murder of Daniel Robert Petrole Jr. very difficult if not impossible. U.S. District Court Judge Raymond A. Jackson, who previously vacated Wolfe’s 2002 conviction, has ordered Wolfe’s release and barred the state from using any testimony, past or present, from the man who admittedly killed Petrole.
Jackson ruled that Wolfe must be released within 10 days, but the state is able to appeal the decision.
Owen Merton Barber IV testified at Wolfe’s 2002 trial that he killed Petrole at Wolfe's request. Prince William County Commonwealth’s Attorney Paul B. Ebert told Barber’s sentencing judge that if not for his testimony Wolfe would not have been prosecuted.
Barber later recanted his trial testimony, which he affirmed directly to Jackson in November 2010, saying prosecutors and his own attorney convinced him he had to testify against Wolfe to avoid the death penalty. Barber received a 60-year sentence, with 22 years suspended.
Jackson wrote that the state had failed to comply with his order to re-try or release Wolfe in what he called a “bungled prosecution.” By attempting to re-try Wolfe, Jackson wrote, the state had subjected the new prosecution to the federal court’s jurisdiction. And, Jackson wrote, the time to re-try Wolfe had expired.
The judge notes that typically the federal court would not have the authority bar additional prosecution of a defendant unless “extraordinary circumstances” exist.
“However, the reality of this case is very different than that of the ordinary case which constrains the Court to extraordinary circumstances,” Jackson wrote, referring specifically to a meeting the original prosecutors in the case had with Barber in September of this year, before handing the case over to a special prosecutor.
“At the heart of this Court’s habeas relief was a desire to correct the pervasive Brady and Giglio violations this Court identified, which were affirmed on Appeal,” Jackson wrote, referring to instances where exculpatory information was not turned over and where prosecutors presented evidence they should have known was false. “However the Commonwealth has done the exact opposite and as a result, has incurably frustrated the entire purpose of the Court’s writ. Instead of curing the constitutional defects in Petitioners original convictions, the Original Prosecuting Team permanently crystallized them.”
Now, Jackson wrote, Barber is invoking his Fifth Amendment privilege out of fear of further prosecution from the state, denying Wolfe his ability call the triggerman as a witness in a re-trial.
“What is clear is that through the actions of the Original Prosecuting Team, Petitioner has been denied the very remedy that would have repaired the numerous constitutional violations this Court found: the ability to call Owen Barber in Petitioner’s defense and to use him to rebut other testimony the Commonwealth will put forward,” Jackson wrote. “It is further ordered that the Commonwealth of Virginia is hereby BARRED from reprosecuting the Petitioner on the charges originally tried herein in state court or any other charges stemming from the death of Danny Petrole which requires the testimony of Owen Barber in any form.”
The order does not completely shut the window on prosecuting Wolfe in the case, but it prevents the use of any testimony from Barber by the state. Prosecutors had hoped to use Barber's 2002 trial testimony in the re-trial if Barber would not testify again, despite the fact that he has recanted that testimony in federal court.