A federal appeals court heard arguments during a hearing Monday that could determine whether a former death row inmate will be released from prison.
While federal appeals judges peppered both the defense and prosecutors with questions, they appeared to focus more on the attorneys for Justin Michael Wolfe.
The Virginia Attorney General’s Office appealed an order from a lower federal court calling for Wolfe’s release. The order also barred further prosecution of the Wolfe, who spend nearly a decade on death row before the U.S. Eastern District Court vacated his conviction.
Wolfe was convicted in 2002 for ordering the murder of his drug dealer, Daniel Robert Petrole Jr., of Centreville—with the only direct evidence in the trial coming from the admitted triggerman, Owen Merton Barber IV. Barber has since changed his story, most recently telling a federal judge in 2010 that the night of the murder.
At one point during Monday’s hearing, Judge Robert B. King made clear that a previous decision by the appeals court was not intended to bar prosecutors from re-trying Wolfe.
“We gave him a new trial … You’re up here trying to sustain a stretch of that that would preclude a new trial,” King said. “That’s all we intended to give him was a fair trial.”
Wolfe’s attorneys argued, with success at the district court level, that a meeting between prosecutors and Barber on Sept. 11, 2012, caused Barber to fear additional prosecution and become unavailable to Wolfe at re-trial. In a 2005 affidavit, Barber said prosecutors and his defense attorney forced him to testify against Wolfe to escape capital murder charges.
Federal District Judge Raymond A. Jackson called the prosecutors’ practice of withholding evidence in the case “unconstitutional” and “abhorrent to the judicial process.” While such errors were to be fixed in Wolfe’s new trial, his attorneys argue that the prosecutors’ meeting with Barber has made it impossible for Wolfe to receive a fair trial.
“What they’ve done is gone ahead and crystallized the violation,” said Ashley C. Parrish, Wolfe’s attorney. Parrish said if the state disregards federal court orders it could result “circular process” with no clear resolution.
Barber and his attorney have since indicated that he would plead his Fifth Amendment privilege if called at trial. However, King said he was not convinced Barber would not testify, and that the court could not assume he would not. In addition, if Barber did assert the Fifth Amendment, whether that violates Wolfe right to a fair trial must first go through the state appeal process, King said.
When Parrish made a similar argument to Judge Allyson K. Duncan, she called that an “extraordinary” assertion and said Wolfe received the relief he requested—a new trial.
However, King also questioned state attorneys about what they expected Barber to say. When Dullaghan pointed out that Barber's plea agreement calls for him to testify truthfully, King said, “but there’s only one version of that that could come out.”
The appeals court must find that the state failed to comply with a previous court order to “provide” a new trial within 120 days, or the panel will not even consider the “extraordinary circumstance” of the Sept. 11 meeting Barber.