A Virginia man convicted of hiring someone to kill his marijuana supplier should be exonerated and freed from death row because prosecutors withheld evidence that would have discredited their key witness, a federal appeals court ruled Thursday.
The ruling by a three-judge panel of the 4th U.S. Circuit Court of Appeals affirmed a judge's ruling and moved Justin Michael Wolfe one step closer to possibly becoming the first wrongfully convicted inmate freed from Virginia's death row since DNA evidence cleared Earl Washington in 2000.
For now, though, Wolfe will remain in prison while the Virginia attorney general's office ponders its next move. The state could appeal the latest ruling to the full appeals court or the U.S. Supreme Court, walk away from the case and let Wolfe go free, or accept the panel's decision but retry the Prince William County man.
Brian Gottstein, a spokesman for the attorney general's office, said no decision has been made. The state has 14 days to ask for a rehearing before the full appeals court and three months to ask the U.S. Supreme Court to review the case.
Wolfe's mother, Terri Steinberg, said in a statement that the state should stop pursuing the case and her son should be released.
“This case has already gone on too long, wasted too much taxpayer money, and destroyed too many lives,” she said.
Richard Dieter, executive director of the Death Penalty Information Center, said 140 people nationally have been exonerated and freed from death row since 1973.
“This case demonstrates that the danger of wrongful convictions in death penalty cases continues,” Dieter said.
Wolfe was convicted largely based on the testimony of the triggerman, Owen Barber IV, who in 2005 recanted his story that Wolfe hired him to kill Daniel Petrole Jr. After a four-day evidentiary hearing last year, U.S. District Judge Raymond A. Jackson found Barber's recantation credible and ruled that prosecutors improperly suppressed several pieces of evidence.
The appeals court zeroed in on just one piece of withheld evidence: a report by a detective who flew to California to bring Barber back to Virginia. The report said the officer told Barber he might avoid the death penalty if he implicated Wolfe in the slaying.
Barber later agreed to plead guilty to first-degree murder and testify against Wolfe in exchange for a life sentence.
Appeals Court Judge Robert King wrote that the report “is indubitably impeaching, in that it establishes a motive not only for Barber to implicate someone else, but to point the finger specifically at Wolfe.”
The court said the prosecution clearly suppressed the report, noting that Commonwealth's Attorney Paul Ebert testified in the lower court that his office does not have an “open-file policy” allowing defense attorneys access to entire case files.
“Asked to elaborate, he offered the flabbergasting explanation that he has `found in the past when you have information that is given to certain counsel and certain defendants, they are able to fabricate a defense around what is provided,'” King wrote in the opinion, which was joined by Judge Stephanie Dawn Thacker.
King wrote that Jackson “rightly lambasted that conduct” in his ruling last year.
Judge Allyson Duncan wrote in a partial dissent that while she agreed with the majority that Wolfe's murder-for-hire and firearms convictions should be overturned, she believed there was enough evidence to support his marijuana distribution conviction. Wolfe was sentenced to 30 years on that count.
The Wolfe and Barber cases exposed a multimillion-dollar drug ring run by young people barely out of high school in the affluent northern Virginia suburbs. According to trial testimony, Wolfe was making $10,000 to $15,000 a month selling high-grade marijuana he bought from Petrole. At the time of his death, Wolfe owed him about $60,000.