Attorneys for Justin Michael Wolfe argued during a hearing in federal court Thursday that a Sept. 11, 2012, confrontation between the original Prince William prosecutors and a key witness has so tainted the case that Wolfe cannot get a fair trial related to the March 15, 2001, murder of Daniel Robert Petrole Jr.
The same federal court previously vacated Wolfe’s conviction for ordering Petrole’s murder, based in part on admitted triggerman Owen Merton Barber IV’s testimony in November 2010 that Wolfe was not involved. The case was remanded back to Prince William prosecutors, who withdrew from the case a day after hauling Barber into the assistant warden’s office and explaining he could still face capital punishment during a meeting recorded without Barber’s knowledge.
During that meeting—according to excerpts of transcripts read by defense attorney Ashley Parrish and to which the state and the judge did not object—prosecutors and one of the original detectives recently rehired to work the case told Barber he had “ruined our reputations.” They are said to have asked Barber whether God was a forgiving God and reminded him several times that he still faced prosecution for capital murder and perjury.
“The power dynamics of that meeting are really extraordinary,” Parrish said. “This is as clear a threat without being specific about it of what they wanted Barber to do.”
Since that meeting, Barber obtained a lawyer and has begun to plead his Fifth Amendment privilege in court when asked about the case. When Judge Raymond A. Jackson asked Barber’s attorney whether that meeting, at least in part, caused Barber to plead the Fifth, he said it did. He also acknowledged it was it partly out of concern for perjury charges.
“Barber had no trouble testifying here at the evidentiary hearing,” Parrish said, referring to Barber’s 2010 appearance in that court. But now he appears to be unwilling to give the same testimony at Wolfe new trial. “They made him unavailable.”
Senior assistant attorney general Matthew P. Dullaghan said there was not threat at the meeting.
“The meeting was very cordial,” Dullaghan said. “Mr. Barber thanked them for coming.”
But Jackson, pointing out that he had read the transcripts of the meeting, said sarcastically, “I don’t know if we read the same transcripts.”
The meeting also made it appear that prosecutors were urging Barber to testify in a manner beneficial to the state and contrary to his 2010 testimony to Jackson, which Jackson found credible.
Barber testified against Wolfe in 2002, but has since recanted that testimony, saying he was forced to take the stand against Wolfe to escape capital charges in the murder. Wolfe, who has always denied involvement in the case, spent nearly a decade on death row before Jackson vacated the conviction last year, a decision an appeals court upheld.
Barber and his current attorney both appeared Thursday. Barber acknowledged he was unaware that the meeting with prosecutors was being recorded, while his attorney explained he would continue to recommend Barber plead the Fifth unless he is given transactional immunity from further charges. Barber appears likely to face additional charges only if he testifies on Wolfe’s behalf.
If Barber does not testify at the new trial, prosecutors may try to introduce his 2002 testimony against Wolfe, which he recanted in his most recent statement on the record, a notion that prompted Jackson to ask if the use of 2002 testimony would circumvent his previous ruling. Dullaghan said the current special prosecutors assigned to the case do not consider Barber’s testimony at Wolfe’s trial tainted.
“Their view of Mr. Barber’s 2002 testimony is it was truthful,” Dullaghan said.
To which Jackson responded, “The court has serious problems with your answer.”
Since Barber appeared willing as recently 2010 to testify on Wolfe's behalf, the effect is to “disqualify … the one witness that is most powerful for Mr. Wolfe,” Parrish said. “Part of their efforts to taint the new trial has already occurred.”
Dullaghan said the multiple incidents of violations during the previous trial—which Jackson called “unconstitutional” and “abhorrent” to the judicial process—“have been remedied.”
Jackson appeared a little irked when Dullaghan said he did not know why Prince William Commonwealth’s Attorney Paul Ebert and assistant commonwealth’s attorney Richard A. Conway recused themselves from the case.
“So you don’t know the basis for them recusing?” Jackson asked. “You don’t believe it’s necessary to find out why they recused themselves or what happened?”
Before Jackson can consider whether that Sept. 11 meeting constitutes “extraordinary circumstances” worthy of ending Wolfe’s further prosecution, he must first decide whether the state has complied with his orders in the case to either re-try or release Wolfe in 120 days. The state and Wolfe’s attorneys disagree about the required timeline for doing one or the other.
A new trial in Prince William Circuit Court is set for January, and Jackson made clear at the beginning of the hearing that “this court by no means has concluded that re-prosecution is banned.”
Since the trial is set for January, Jackson’s answer appears likely to come within the next few weeks.
Read more about the Justin Wolfe case:
Dead Man to 'Testify' at Wolfe Retrial
Wolfe Trial Pushed to January
Raymond Morrogh Appointed Special Prosecutor in Justin Wolfe Case
Triggerman: Death Row Inmate is Innocent