Wolfe, State Now Await 4th Circuit Ruling

A three-judge panel of U.S. 4th Circuit Court of Appeals in Richmond on Thursday listened to attorneys for opposing sides in a Virginia Death Row case in which a lower .

The that overturned a death sentence related to the murder of Daniel Robert Petrole Jr., of Centreville, in March 2001. Triggerman Owen Merton Barber IV testified against Wolfe during Wolfe’s 2002 trial and has since changed his story more than once—.

Estimates of when the 4th Circuit ruling may come range from a couple of weeks to several months. The court previously sent the case back to the U.S. District Court of Eastern Virginia, after that court initially declined to consider evidence withheld from the defense.

Upon second review, the district court ordered state attorneys to turn over the investigators' files in the case. Prior to that, only evidence that prosecutors deemed exculpatory had been turned over, a practice permitted in Virginia, but not followed by all counties. Some counties provide an “open file” policy, in which “they just make their files available” to defense attorneys, Appeals Court Judge Robert B. King said as he questioned the state on that issue during the hearing.

State attorney Katherine B. Burnette argued, contrary to Jackson’s 2010 order, that prosecutors complied with all disclosure requests from the Prince William County Circuit Court.

“They operate by court order,” Burnette said.

Full coverage: Justin Wolfe Death Penalty Case

For counties that do not follow an open file policy, King said, “that means what’s held back is consciously held back, knowingly and intentionally.” King said information also could be withheld negligently.

The defense in its brief pointed out that Commonwealth’s Attorney Paul B. Ebert told Jackson during a 2010 evidentiary hearing that he withholds information not deemed exculpatory because defendants “are able to fabricate a defense around what is provided.”

To that point, Judge King said, “You don’t want to give it to them because they might use it.”

Burnette also argued against the lower court’s determination that evidence withheld was material to Wolfe’s defense.

“At the end of the day, they have not proven the jury would have acquitted Wolfe given the tremendous evidence in this case,” she said.