By Dusty Smith
Attorneys and the presiding judge will gather Wednesday morning to nail down a trial date for Justin Michael Wolfe, who faces a second round of murder and drug charges. [UPDATE: The Dec. 4 hearing has been rescheduled for Jan. 15.]
Wolfe spent nearly a decade on Virginia’s death row until a federal judge vacated his murder-for-hire and marijuana distribution sentences in a scathing rebuke of prosecutors in the case. Virginia declined to appeal the case to the U.S. Supreme Court, instead choosing to re-try Wolfe not only on the murder charges, but also on much more serious drug charges than he faced before.
When initially convicted in 2002, the jury imposed a maximum 30-year sentence on Wolfe for drug distribution in addition to a death sentence for Petrole’s murder. The murder conviction was based primarily on the testimony of admitted triggerman Owen Merton Barber IV, who has since on multiple occasions recanted his testimony that Wolfe ordered Petrole’s murder to escape a large drug debt.
Under the new charges, Wolfe faces a life sentence for drug distribution alone, including for drugs he did not distribute.
The new prosecutors on the case have identified dozens of people allegedly involved in a drug conspiracy with Wolfe, many of whom were above Wolfe in the drug distribution chain. Several received sentences of about three years in federal court. None were charged with the conspiracy now Wolfe faces.
Kimberly Irving, one of Wolfe’s attorneys, asked Prince William Circuit Court Judge Mary Grace O’Brien to have prosecutors provide more information about the charges against Wolfe because they do not believe the evidence supports the conspiracy charge relating to Virginia’s “continuing criminal enterprise” statute. Under the statue, the state would need to prove more than 100 pounds of marijuana was distributed or more than $100,000 exchanged.
“There’s no evidence that comes anywhere close to that,” Irving said.
But Casey Lingan, a special prosecutor from Fairfax County, said Wolfe could be held accountable for the actions of the entire enterprise, not just actions he took alone.
“It does not require the defendant to have committed the series of violations alone,” Lingan said. “It’s punishing the aggregate amount.”
In other words, despite Wolfe’s position in the conspiracy, all the drugs distributed by those above him, regardless of his knowledge of the activity, could apply to his charges.
Irving argued that it’s unfair for Wolfe to face a life sentence when those above him are not charged in the crime, or already faced much lower federal charges.
O’Brien said it would be up to prosecutors to support their case in trial.
As the defense team pressed for more details about the specific charges, Lingan said the “defense wants a road map to the commonwealth’s case.” He said the defense has received all of the information to which it’s entitled.
“The commonwealth has been 100 percent fair to this defendant and the defense in this case,” he said.
One federal judge called the original prosecutors’ practices in Wolfe’s 2002 trial “unconstitutional” and “abhorrent” to our judicial system.
It was after such criticism that the original prosecutors confronted Barber in jail. During that Sept. 11, 2012, meeting, prosecutors explained to Barber that if his testimony against Wolfe in 2002 was not truthful, then he could still face the death penalty Petrole’s murder, according to a transcript. The next day, they handed the case over to special prosecutors in Fairfax County. Barber has since asserted his Fifth Amendment privilege not to testify on behalf of the commonwealth or Wolfe.
Wolfe’s defense has sought to have Prince William Commonwealth’s Attorney Paul Ebert and assistant commonwealth attorney Richard A. Conway – the original prosecutors in the case – testify about the meeting with Barber. However, Judge O’Brien has denied those requests, saying she could not compel them to testify.
“The purpose of the meeting is critical,” said Ed MacMahon, one of Wolfe attorneys, in court a month ago. “Why did they go down there?”
And while prosecutors were blasted by federal judges for failing to provide Wolfe with evidence that could have helped him at trial, evidence continues to be an issue. Not only did one box of information suddenly appear in the prosecution’s file during this past summer, much of the drug distribution evidence shared with federal prosecutors was destroyed.