The Virginia Attorney General’s office plans to appeal after a judge threw out the conviction of a Virginia death row inmate and chastised the prosecution for using a witness who lied on the stand.
The office filed notice Monday with the 4th Circuit U.S. Court of Appeals to challenge a federal judge’s ruling last month that threw out 30-year-old Justin Michael Wolfe’s murder-for-hire conviction.
Wolfe has been on death row for nearly a decade for the 2001 slaying of his marijuana supplier, Daniel Petrole, in Prince William County.
In a scathing ruling, U.S. District Judge Raymond Jackson said the prosecution erred in using testimony from shooter Owen Barber, who said Wolfe paid him to kill Petrole but later recanted. He rejected prosecutors’ claims that they did not know Barber’s testimony was false at the time.
“They had prior knowledge of falsities in Barber’s testimony, yet never pursued or investigated the information,” Jackson wrote. “In light of the Commonwealth’s conduct, the Commonwealth cannot be entitled to benefit from their deliberate ignorance and/or reckless disregard for the falsities in Barber’s testimony.”
Jackson also ruled that Wolfe’s due process rights were violated when prosecutors withheld information from his attorneys.
Attorney General spokesman Brian Gottstein said the attorneys who handled the case were out of the office and not available for comment. Wolfe’s attorneys did not immediately respond to messages seeking comment.
The judge wrote that the actions of Prince William prosecutors were “not only unconstitutional in regards to due process, but abhorrent to the judicial process.” They have denied any wrongdoing and said that if the conviction were tossed out they may try Wolfe again.
The state must await a procedural step in U.S. District Court before filing the appeal with the federal appellate court.
The case exposed a drug distribution ring in the wealthy northern Virginia suburbs.
According to trial testimony, Wolfe was making $10,000 to $15,000 a month selling high-end marijuana he bought from Petrole, 21. Wolfe had been friends since high school with Barber, who sold lower-grade marijuana.
At the time of Petrole’s death, Wolfe owed Petrole about $60,000.
On March 15, 2001, after Petrole delivered the pot to Wolfe, Barber followed Petrole to his home and shot him 10 times as he sat in his car. Barber testified that in exchange for the slaying, Wolfe forgave a $3,000 debt, gave him more than five pounds of marijuana and promised an additional $10,000.
In his affidavit recanting the testimony, Barber said he had intended to confront Petrole but thought he saw him reach for a gun, so he fired. He said he implicated Wolfe to avoid the death penalty.
Barber, who was the key prosecution witness in Wolfe’s 2002 trial, pleaded guilty to first-degree murder and testified against Wolfe in exchange for a life sentence.
While the death sentence was thrown out, Wolfe still faced several more years in prison for drug and weapons convictions that accompanied his death sentence.