But in a 26-page ruling Wednesday, Jackson said the prosecution had failed to bring the case to trial within the 120-day limit the court had set, and he ordered Wolfe released in 10 days. Jackson also chastised the previous team of prosecutors — from the Prince William commonwealth’s attorney’s office — saying they had used some of the same tactics that led to the original conviction’s being overturned.
Fairfax County Commonwealth’s Attorney Raymond Morrogh, the special prosecutor in the case, said the state would seek a stay of Jackson’s order and appeal it to the U.S. Court of Appeals for the 4th Circuit.
Wolfe was convicted in 2002 of hiring a member of his drug ring in 2001 to kill a marijuana supplier. In 2011, after the conviction was challenged in federal court, Jackson found that Prince William prosecutors had withheld important evidence from the defense and had supported false testimony given by the case’s key witness, Owen M. Barber IV.
Barber testified that Wolfe had hired him to kill Daniel Petrole Jr. But he later recanted and said prosecutors had told him to testify falsely.
In his ruling Wednesday, Jackson said the prosecution had responded improperly to Barber’s retraction. “Instead of curing the constitutional defects . . . the original prosecuting team permanently crystallized them,” Jackson, who is based in Norfolk, wrote in his order.
Wolfe’s attorneys claim that members of the original prosecution team attempted to intimidate Barber into reverting to his original testimony during a meeting at an Augusta County prison where Barber is incarcerated for Petrole’s killing after pleading guilty to murder.
Wolfe’s attorneys said prosecutors told Barber that they could invalidate his plea agreement and bring capital charges against him in Petrole’s killing because he lied during Wolfe’s trial. Jackson wrote that Barber planned to exercise his Fifth Amendment right against self-incrimination at Wolfe’s new trial if he did not get an immunity deal.
Wolfe’s attorneys appealed to the court this month, saying the period to retry Wolfe had expired. Prosecutors disagreed.
Ashley Parrish, one of Wolfe’s attorneys, hailed Jackson’s order.
“We’re obviously very pleased with the court’s decisions and think it’s appropriate given the extraordinary circumstances of the case,” Parrish said. “It’s time for the commonwealth’s attorney to end this prosecution and allow Wolfe to return to his family.”
Morrogh, the special prosecutor, was not part of the original prosecution team. “I’m disappointed in [Jackson’s] opinion,” he said. “I hope this case can come to trial at some point.”
Wolfe’s retrial was scheduled to begin in January.