Virginia’s appeal of a federal court decision to vacate the conviction and sentence of Justin Michael Wolfe—who a Prince William County jury sent to death row in 2002 for murder-for-hire—goes before the U.S. 4th Circuit Court of Appeals in Richmond on May 17.
Owen Merton Barber IV, of Centreville, , of Chantilly, under pressure from prosecutors and his own defense attorney. Barber followed Daniel Robert Petrole Jr. for more than an hour before blocking his car along a dead-end street in front of Petrole’s Bristow home and killing him.
In his order vacating the convictions, U.S. District Court Judge Raymond A. Jackson that could have been used to prove his innocence at trial and called procedures by the prosecutors “abhorrent to the judicial process.”
Besides the murder-for-hire, , a sentence Wolfe received because the triggerman used a gun. Wolfe was not present at the murder.
“The Commonwealth deprived Wolfe of a fair trial by improperly withholding material exculpatory evidence and committing other violations of his constitutional rights,” Wolfe’s attorneys wrote in his brief to the appeals court, adding that prosecutors had a “conviction-at-all costs mentality that infected Wolfe’s trial.”
Thirty-four attorneys, judges and law professors have urged the 4th Circuit to uphold Jackson’s ruling in the case. They said the evidence prosecutors withheld posed “an unacceptable risk that an innocent man may have been sentenced to death.”
The state argued it has ample evidence to convict Wolfe on circumstantial evidence, a claim disputed by the defense and even by statements made by Prince William Commonwealth’s Attorney Paul B. Ebert at Barber’s sentencing.
“But for his testimony, Mr. Wolfe probably would not have been prosecuted," Ebert said in 2002, referring to Barber’s testimony against Wolfe.
The state’s brief argues that it was not given adequate time to refute evidence presented by Wolfe during his evidentiary hearing in November 2010 before Jackson.
“No responsible prosecutor, much less the director, reasonably could have been expected to guess what Wolfe would allege, or defend against such undisclosed claims,” the brief states.
Wolfe’s appeal had centered on an inadequate correspondence of exculpatory information, Barber’s recantation and information presented at trial that Wolfe’s attorneys believe prosecutors knew to be untrue.
The state also makes puzzling conclusions. For example, the fact that Wolfe revealed the name of his drug supplier to Barber, according to the brief, is itself evidence of a murder plot.
“There was no reason to reveal Petrole’s identity to Barber except to arrange for his elimination,” the 4th Circuit brief states.
Yet evidence presented during the 2010 hearing shows that Petrole knew not only the person directly above him in the drug conspiracy hierarchy, but also that person’s supplier.
The state brief says “Wolfe does nothing to improve the district court’s pure speculation that someone, somewhere, other than Wolfe, might have wanted Petrole dead.”
In fact, evidence not disclosed to Wolfe prior to trial suggests Petrole's roommate/drug partner cut Petrole's supplier out of a deal by going directly to the next person up the chain. Other evidence presented during the evidentiary hearing indicates that Petrole was fearful of retribution for that act, despite not having approved of it.
Ebert said in the 2010 hearing that it was not information deemed credible enough to be exculpatory.
"There was never a rift between Mr. Petrole and anyone else to my knowledge," Ebert said at first. Then, when pressed further about the disagreement, he said, "I do remember there was some talk about that. I don't see anything exculpatory about it. Danny did not want to be part of any cutting out. That's why I did not think it was exculpatory."
Barber’s roommate at that time, Jason Coleman, at one point worked at the same restaurant as Petrole’s girlfriend, according to information presented during the 2010 evidentiary hearing.
Coleman also provided the weapon used to kill Petrole, received a car from Barber as he left town after the murder and was the last person to see Barber before he fled. Coleman and Barber’s close friend at the time, J.R. Martin—who loaned Barber his car the night of the murder—were the first to give Wolfe’s name to the police after the murder.
"We had pretty much established what we needed to look at in this case," Conway said in 2010. "At the time, we already had information from Mr. Martin's and Mr. Coleman's statements."
Barber claimed in the 2010 hearing and in his 2005 affidavit that Martin was in the car with him that night. Martin denies being in the car, but acknowledges being with Barber before and after the murder. Martin also knew details of Barber’s ride that night, such as items he threw out the window, that he said Barber disclosed.
The defense has hinted at , including a robbery gone wrong or a murder ordered by someone else in Petrole’s drug distribution circle. The prosecution dispels such suggestions as not credible, while the defense argues it never had a chance to pursue them adequately because of the lack of exculpatory evidence disclosed.
“Not only does the information fail to establish any prior relationship, it cannot be material where there is absolutely no evidence that Barber had any motive to kill Petrole other than for hire by Wolfe,” the state’s brief for the 4th Circuit reads.
Barber would not tell Judge Jackson why he followed Petrole that night other than to say Martin and Coleman asked him to.
Coleman and Martin have denied any involvement other than their connection to the car and the weapon used, and they both deny any knowledge of Barber’s plans. Coleman testified on Wolfe’s behalf at the 2010 hearing, while Martin testified for the state.
As to how investigators had Wolfe’s name, Det. Sam Newsome acknowledged in a police report that he gave Wolfe’s name to Barber on the plane back from San Diego where Barber had fled. However, there was a letter in Barber’s hotel room that had not been mailed asking Wolfe for money before that flight home with the detective.
“Wolfe identifies no information in the possession of prosecutors to show that Detective Newsome’s information caused Barber to fabricate his testimony and no evidence whatsoever of any coercion,” according to the state’s 4th Circuit brief.
Except for Barber’s testimony to Jackson.
"They said they wanted the truth, but at the same time, they said this is what we want you to say to avoid the chair," Barber said. "It was basically, 'you're going to testify against Justin or you're going to get the death penalty.'"
The state brief asserts that Barber had no answer for why he killed Petrole at the 2010 hearing, but
The state brief questions Wolfe’s alternate theories because he has not proven any of them, putting the onus on Wolfe, not only to disprove his guilt, but also to find the actual guilty party.
The state argues that prosecutors turned over all exculpatory information, but Ebert testified that he resists giving too much information to defendants because they “are able to fabricate a defense around what is provided."
Wolfe’s attorney had a harsh assessment of the state’s brief.
“Rather than explain why it is constitutional to imprison and execute a man whose conviction is known to rest on material perjury, the Commonwealth seeks to distract the Court with a series of manifestly erroneous procedural objections and half-arguments,” the brief states.
“That is unworthy of the responsibility to administer justice entrusted to the Commonwealth by the People. More importantly, it should be fatal to the Commonwealth’s appeal."