Dissenting Judge: 'Doubtful' Justin Wolfe Will Receive Fair Trial

Prince William County prosecutors culminated a pattern of "continued misconduct" by threatening Owen Merton Barber IV—the triggerman in the 2001 murder of Daniel Petrole Jr.—after Barber testified that a former death row inmate was not involved in the crime, a federal judge wrote in an opinion issued Wednesday. 

Judge Stephanie D. Thacker cast the dissenting vote Wednesday, as the U.S. Court of Appeals voted 2-1 , on capital murder charges. Wolfe was previously convicted of ordering Petrole's murder, but his conviction was vacated after another federal court found that prosecutors suppressed evidence. 

The two appeals court judges wrote that they were "confident that the retrial will be properly handled," despite a scathing dissent by Thacker. 

"The Commonwealth's misconduct has continued far too long, and the cumulative misconduct permeating this case has tainted it in such a way it is doubtful Wolfe will receive a fair and just trial," Thacker wrote. "Enough is enough."

The appeals court ruled yesterday that a lower federal court had overstepped its authority by prohibiting a retrial in the case. In December, U.S. District Court Judge Raymond Jackson issued an order barring a retrial after prosecutors failed to meet a 120-day deadline to retry or release Wolfe. 

"Though we reiterate that a federal habeas court possesses substantial discretion in fashioning an appropriate remedy, preventing the retrial of a state criminal case is the strongest of medicine. And it is a measure that should be utilized with the utmost restraint, only in the most extraordinary of circumstances," U.S. Court of Appeals for the Fourth Circuit Judge Robert B. King wrote in an opinion for the majority.

"Woe is the state of justice in the Commonwealth if this behavior is not extremely rare," Thacker returned in her opinion. 

Fairfax Commonwealth's Attorney Raymond Morrogh, who has been appointed the special prosecutor in the case, did not return a call for comment Thursday.

The appeals court unanimously agreed that the Commonwealth had intentionally violated Jackson's deadline. However, the court ruled that Jackson's decision to prohibit a retrial was an "overbroad remedy."

Defending Jackson's decision, Thacker listed a long "pattern of misconduct." She pointed to a September 2012 meeting between Prince William County Commonwealth's Attorney Paul Ebert, Assistant Commonwealth's Attorney Richard Conway and Detective Sam Newsome. 

The three "attempted to coerce Barber to repeat his 2002 trial testimony upon retrial--the same testimony that the district court found 'contained falsities,'" Thacker wrote. At one point, Conway told Barber that by breaching his plea agreement, Barber could be tried again for Petrole's murder. 

During the meeting—which was recorded without Barber's knowledge and without his lawyer present—Ebert asked how Barber might testify at a retrial. Barber has changed his story several times over the last decade.

When Barber replied that he would testify Wolfe was not involved, "the questioning did not stop there. Instead, because this was not the answer the Commonwealth wanted, they proceeded to interrogate, intimidate, and threaten Barber for over an hour, but at no point did Barber relent," Thacker wrote. 

The next day, Ebert filed a motion to recuse himself from the case and the court appointed a special prosecutor. 

"The timing of this action is highly suspect, as it suggests....the Original Prosecuting Team made a last-ditch effort to intimidate Barber into implicating Wolfe once and for all, and then, when their plans failed, the prosecutors immediately filed a motion to recuse themselves," Thacker wrote. 

Barber has since pleaded the Fifth Amendment, upon the advice of his attorney. 

"Even if Barber decides to forgo the privilege, his testimony will be forever shadowed by the manipulative actions of the Original Prosecuting Team: the Commonwealth threatened Barber with capital murder for breaching his plea agreement and raised the specters of God and Barber's deceased mother in attempt to coerce him into testifying to 'the truth,' a.k.a., the Commonwealth's moniker for its version of the facts," Thacker wrote.