Prince William Circuit Court to decide if special prosecutor should stay or go

November 5, 2012

Defense lawyers for a man who faces capital murder charges for the second time are seeking to remove the special prosecutor, who they say cannot be impartial because of his longtime friendships with those involved in the original prosecution.

The hearing on whether Fairfax County Commonwealth’s Attorney Raymond F. Morrogh (D) should be removed as special prosecutor in the case against Justin Michael Wolfe was lengthy and contentious Wednesday in Prince William County Circuit Court. Defense lawyers accused Morrogh of wanting to vindicate his longtime friend, Prince William Commonwealth’s Attorney Paul B. Ebert (D).

Wolfe, 31, is on trial in the 2001 killing of Daniel Petrole Jr. in Bristow.

In 2002, Wolfe was convicted of hiring Owen Merton Barber IV to kill Petrole over money and a drug-related dispute; he was sentenced to death. The conviction was recently overturned and vacated by a federal appeal’s court, which criticized Ebert’s office for failing to turn over evidence that could have helped Wolfe’s defense.

Defense lawyers sought to paint a picture of a close relationship between Ebert and Morrogh and implied they have colluded to pursue the charges against Wolfe.

Circuit Court Judge Mary Grace O’Brien said she would rule Monday on whether to remove Morrogh.

The federal court ruling also cited the troubled testimony of the prosecution’s key witness, Barber. Barber was arrested soon after Petrole’s death. He implicated Wolfe in exchange for a lighter sentence and testified that Wolfe arranged the shooting. But Barber has since changed his story several times.

Although it vacated Wolfe’s conviction, the federal court said prosecutors could still pursue charges against Wolfe. Given the federal rebuke, Ebert sought to have a special prosecutor appointed and asked for Morrogh to get the job.

Barber appeared briefly Wednesday but said he would not testify because he did not want to incriminate himself. Barber and Wolfe seemed to make no eye contact when he was called to the stand.

Defense lawyers wanted to ask Barber about a visit from Ebert, assistant prosecutor Rick Conway and Samson Newsome, a former police detective who has been retained to help prosecutors in Wolfe’s re-trial.

Ebert and Conway were called to testify but fought the subpoenas. O’Brien agreed that, as prosecutors on the case, they should not have to testify.

Defense lawyers said that it was improper for Ebert to recommend his successor and that he and Morrogh have continued to talk about the case. Having conversations “does not mean [Morrogh] has abrogated his responsibility,” O’Brien said.

Morrogh vigorously defended himself, saying his 30-plus years as an impartial prosecutor shouldn’t be called into question because of friendships and conversations.

“There has been no evidence that I acted in any way” improper, Morrogh said.

Defense attorney Kimberly Irving said that, given the case’s past, even an appearance of impropriety should be dealt with by removing Morrogh and starting a new the process of appointing a special prosecutor.

“This case is big,” Irving said. “And it’s not the kind of case to say it’s good enough, this is the way things [usually] happen.”

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