The court’s opinion called such evidence “crucial” and, like the federal district court before it, criticized Commonwealth’s Attorney Paul B. Ebert’s office for not turning over “Brady” material, or evidence that a defendant could use to prove his innocence. The court said the concealing of the detective’s report “undermines confidence in the fairness and propriety of the entire trial.”
“While we look no further than the [detective’s] report today, we do not condone the prosecution’s apparent suppression of other Brady material and the pattern of conduct that it reveals,” the court wrote, later referencing a similar warning the court issued in 2009 in the case of D.C. sniper John Allen Muhammad, urging prosecutors to err on the side of disclosure in cases for which the death penalty is a possibility. “We sincerely hope that the Commonwealth’s Attorney and his assistants have finally taken heed of those rebukes.”
Ebert said Thursday that he is “disappointed” in the decision but also that it wasn’t totally unexpected. The Virginia attorney general’s office must decide whether to seek a rehearing at the federal circuit level or to appeal the case to the U.S. Supreme Court.
But Ebert also said it appears clear that the 4th Circuit is sending a message that prosecutors should move in the direction of “open-file discovery” in capital cases, which would have prosecutors turn over everything they gather during their investigations. Ebert has said the practice could allow defendants to “fabricate” a defense based on irrelevant material, and the courts in turn have blasted him for not sharing everything.
“Based on these decisions that are coming down, what used to be not discoverable has become discoverable,” Ebert said Thursday.
All of Wolfe’s convictions have been vacated, but the court has left the door open for Ebert’s office to start the case anew, writing that “the Commonwealth is free to retry Wolfe on the murder, firearm and drug conspiracy charges.” Ebert has said previously that he would probably retry the case if it were overturned; on Thursday he said he hasn’t decided.
Terri Steinberg, Wolfe’s mother, said she is grateful to the courts for “doing justice in Justin’s case” and again proclaimed his innocence. Steinberg said it is time for prosecutors to stop pursuing her son’s “wrongful conviction and for Justin to come home to his family.”
“The commonwealth should not appeal the court’s ruling,” Steinberg said. “This case has already gone on too long, wasted too much taxpayer money and destroyed too many lives.”
Wolfe, 31, has spent the past 11 years in prison, most of them on death row, after he was convicted in the murder-for-hire of Daniel Petrole Jr. Petrole, who was dealing marijuana across Northern Virginia, was gunned down in front of his Bristow townhouse shortly after making a delivery to Wolfe.
Prosecutors argued at trial that Wolfe had hired Owen Merton Barber IV to kill Petrole. Wolfe at the time owed Petrole tens of thousands of dollars. Barber was arrested soon after the slaying and implicated Wolfe, testifying at trial that Wolfe arranged the shooting.
Barber has since changed his story several times, most recently telling a federal district court judge that law enforcement officials told him he needed to point the finger at Wolfe, so he did.
Wolfe’s appeals lawyers argued that prosecutors kept key pieces of evidence from the defense and unilaterally decided what was important and credible, perhaps preventing defense strategies.
In the example the court used, the detective reported that he brought up Wolfe’s name to Barber on a cross-country flight after Barber’s arrest and said he could avoid the death penalty by implicating Wolfe. The court wrote that the report establishes a motive for Barber to link Wolfe to the killing and suggests that the detective “fed Barber the crux of his testimony.”
“What the habeas process revealed, and what the evidence clearly shows, is that this case should never have been brought in the first place,” said Ashley Parrish, a Washington lawyer who led Wolfe’s appeal. “Although the commonwealth technically could retry Wolfe, it should just walk away.”