March 01, 2013

King & Spalding Achieves an “Extraordinary” Victory for Justin Wolfe

As reported in the year-end 2012 edition of Project Press, volunteer attorneys from King & Spalding LLP obtained a ruling last fall from the U.S. Court of Appeals for the Fourth Circuit affirming the decision of the district court to overturn the conviction and sentence of their client, Justin Wolfe. After vacating the convictions based on findings of prosecutorial misconduct, the court ordered the Commonwealth to either retry or release Mr. Wolfe within 120 days. King & Spalding attorneys filed a motion to enforce this decision after the 120 days had passed. On December 24, 2012, they achieved another major victory for Mr. Wolfe when the court granted their motion, which not only ordered his release but also barred the Commonwealth from ever re-prosecuting him for the murder of Daniel Petrole.

In his lengthy order, District Court Judge Raymond Jackson found that the 120-day window to retry or release Mr. Wolfe had expired, rejecting the Commonwealth's argument that merely re-indicting him within that timeframe was sufficient. He also found that the Commonwealth had continued to act improperly following the Fourth Circuit’s decision to overturn Mr. Wolfe's conviction. The original conviction was largely based on the testimony of the confessed shooter in the case, Owen Barber, who claimed Mr. Wolfe had paid him to commit the murder. Mr. Barber later recanted, saying that investigators threatened him with the death penalty if he did not agree to implicate Mr. Wolfe and allege that he had acted alone.

Judge Jackson found that, following the reversal of Mr. Wolfe's conviction, the original prosecuting team visited Mr. Barber in prison and told him that his plea agreement was invalid and he would again face the death penalty if he did not revert to his original story that Mr. Wolfe alone was involved in the killing. Following this conversation and on the advice of counsel, Mr. Barber invoked his Fifth Amendment right against self-incrimination and said that he would continue to do so if Mr. Wolfe was retried. Judge Jackson held that the actions of the Commonwealth "speak to a continuing pattern of violating Petitioner['s] right to use Brady and Giglio evidence [of prosecutorial misconduct] . . . ." He went on to say:

At the heart of this Court's habeas relief was a desire to correct the pervasive Brady and Giglio violations this Court identified, which were affirmed on appeal. . . . However, the Commonwealth has done the exact opposite and as a result, has incurably frustrated the entire purpose of the Court's writ. Instead of curing the constitutional defects in Petitioner's original convictions, the Original Prosecuting Team permanently crystalized them. Though Petitioner is now aware of the Brady and Giglio evidence helpful to exonerate him, he cannot use it because the Original Prosecuting Team has scared Barber into invoking his Fifth Amendment right to avoid self-incrimination.

Judge Jackson found that "any retrial under the present circumstances would result in incurable violations of the Due Process Clause of the Fourteenth Amendment" and consequently granted the "extraordinary remedy" of barring the Commonwealth from re-prosecuting Mr. Wolfe, ordering his release within 10 days.

On January 3, 2013, a Prince William County, Virginia circuit judge ordered Mr. Wolfe's release by 5 p.m. that day but, less than two hours before his scheduled release, the Fourth Circuit issued a stay pending the Commonwealth's appeal of Judge Jackson's order. In late January, the Fourth Circuit held a hearing on the appeal, but it has not yet issued a decision. While awaiting the decision, Mr. Wolfe is no longer on death row but remains in police custody.