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Posted at 02:05 PM ET, 10/01/2012

Attorneys for Justin Michael Wolfe seek to have new Fairfax special prosecutor dismissed in murder case

Attorneys preparing to defend a man facing the death penalty for the second time asked a Prince William County Circuit Court judge on Monday to remove a special prosecutor appointed to the case.

Fairfax County Commonwealth’s Attorney Raymond F. Morrogh (D) was appointed as special prosecutor in September in the new capital murder trial of Justin Michael Wolfe, 31. Wolfe is charged with ordering the 2001 killing of Daniel Petrole Jr., who was part of a sprawling Northern Virginia marijuana drug ring. Wolfe has been described by prosecutors as an alleged “kingpin” in selling drugs in the area, and he also allegedly owed Petrole tens of thousands of dollars when Petrole was killed.

Morrogh had been appointed after a federal appeals court overturned Wolfe’s 2002 conviction and death sentence recently. The appeals court cited the fact that the office of Prince William County Commonwealth’s Attorney Paul B. Ebert (D) had failed to turn over “crucial” evidence to lawyers defending Wolfe in his original trial.

That opinion also cited the troubled testimony of the prosecution’s key witness, the shooter, Owen M. Barber IV. Barber was arrested soon after the slaying of Petrole and he implicated Wolfe, testifying at trial that Wolfe arranged the shooting. But Barber has since changed his story several times.

The federal appeal’s court, while vacating Wolfe’s convictions, said that prosecutors could still pursue the charges if they chose to do so. Given the federal rebuke, Ebert sought to have a special prosecutor appointed and asked for Morrogh to get the job.

Circuit Court Judge Mary Grace O’Brien agreed to appoint Morrogh, despite some argument from defense attorneys at the time that Ebert shouldn’t be allowed to pick his successor.

Defense attorneys again argued that point Monday, and O’Brien said she would take up the issue in full next Tuesday. In court documents, Wolfe’s attorneys named several reasons why they believe Morrogh shouldn’t be able to take the case, citing, among them, a close relationship between Morrogh and Ebert and the fact that he “rush[ed] to judgement” in looking to retry Wolfe on the murder charges just a day after taking the case, according to the motion.

“Paul Ebert shouldn’t get to pick who replaces him — his own friend and political ally to further a wrongful and vindictive prosecution,” said Edward J. Ungvarsky, Wolfe’s attorney, in an interview.

Ebert is listed in the “endorsements” section of Morrogh’s campaign Web site.

“Ray Morrogh is a competent attorney,” Ebert said in an interview. “I think he’d do a good job on any case in which he was appointed.” He said that Wolfe’s attorneys were initially fine with the appointment of Morrogh but have changed their opinion once he decided to pursue the capital murder charge.

Morrogh said in a brief interview that he “isn’t aware of any” conflicts to being appointed as special prosecutor and that he’s “willing to serve.”

O’Brien also removed Matthew Engle and the University of Virginia Innocence Project from a lead role in the case after Engle said he did not have trial experience and had full-time duties at U-Va. Ungvarsky, from the Northern Virginia Capital Defender Office, was appointed Wolfe’s new primary attorney. Engle said he believes Wolfe is innocent and that the U-Va. Innocence Project project will assist Wolfe’s new attorneys if asked.

By  |  02:05 PM ET, 10/01/2012

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