Prosecutors on Tuesday said they never threatened the key witness against Justin Michael Wolfe and argued separately that Wolfe should be re-tried on capital murder charges.
The battle over whether Wolfe should be freed or face another trial in the slaying of Daniel Petrole proceeded Tuesday in two separate courts.
A federal judge in Norfolk wants to know why Prince William County Commonwealth’s Attorney Paul B. Ebert and his assistants visited their key witness in prison in September.
Defense attorneys alleged in papers in U.S. District Court that Ebert threatened Owen Merton Barber IV during their visit, saying that Ebert warned him that he was in violation of his plea agreement. If the agreement were revoked, Barber could face the death penalty, the defense lawyers alleged Ebert told Barber.
Barber was the key witness against Wolfe in 2002, telling a jury that he killed Petrole in a murder-for-hire plot masterminded by Wolfe. Barber said Wolfe owed Petrole money for drugs as part of a massive suburban marijuana ring.
Wolfe was convicted on capital murder charges and sentenced to death.
But Barber recanted his testimony and changed his story several times. Based on Barber’s recantation and what he called “abhorrent” behavior by Ebert, the federal judge in Norfolk eventually overturned Wolfe’s conviction and death sentence, and sent the case back to Prince William for a retrial.
Defense attorneys now allege that Barber was “threatened” by Ebert and other officials during the September jailhouse meeting.
During the meeting, Barber told prosecutors to “forget the murder and go for the drugs” in the Wolfe case, court documents say.
Prosecutors argued that allegations of coercion are overblown, and that they urged Barber to tell the truth.
The case is now being led by a special prosecutor, Raymond Morrogh, the commonwealth’s attorney in Fairfax County.
The allegations have prompted U.S. District Judge Raymond Jackson to ask for a hearing Thursday in Norfolk, he wrote in a court order. Prosecutors’ failure to explain their actions could mean Wolfe’s “immediate release and bar current and future prosecutions of Wolfe on all charges related to the death of Danny Petrole and drug conspiracy crimes,” he wrote.
Separately, Judge Mary Grace O’Brien said in Circuit Court on Tuesday it was too soon to decide whether to bar Barber’s past testimony at Wolfe’s retrial.. Defense attorneys argue that the “taint” of impropriety from Wolfe’s first trial should ban any testimony from that trial from being played and entered into evidence now.
Whether prosecutors can use Barber as a witness or introduce his old testimony as evidence will likely be key. In 2002, when Wolfe was originally convicted, Ebert said that Barber’s testimony was pivotal. “But for his testimony, Justin Wolfe never would have been prosecuted,” Ebert said at the time.