Justin Wolfe case: The problem goes deeper than prosecutorial misconduct.

The law, lawyers, and the court.
July 14 2011 4:42 PM

Murder Conviction Most Foul

What Justin Wolfe's case in Virginia tells us about death row cases everywhere.

(Continued from Page 1)

Jackson rejects the contention that there was sufficient physical evidence connecting Wolfe to the murder, describing the prosecution's case without Barber as "tenuous" at best. He is scornful of "witness testimony replete with hearsay and speculation." He concludes that "Barber's testimony was the only evidence the prosecution presented to prove that the defendant hired Barber to kill Petrole," and that "had the prosecution complied with its Brady obligations, Barber's testimony would have been seriously undermined." He then blasts Ebert, by name, for admitting that turning over exculpatory information allows defense counsel to "fabricate a defense around what is provided."

Matthew L. Engle, co-director of the Innocence Project at the University of Virginia's School of Law and one of Wolfe's lawyers, explains the problem with that: "When Paul Ebert suggests that he shouldn't be required to disclose information to defense attorneys because they might use it to 'fabricate' a defense, he shows an alarming disregard for the adversarial process. Our criminal justice system is premised on the notion that the jury gets to hear all of the evidence, pro and con, to reach a reliable verdict. As Judge Jackson found, when the prosecution hides evidence that doesn't fit with its theory of the crime, the system fails."

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In Jackson's view, the array of prosecutorial actions in this case "served to deprive Wolfe of any substantive defense in a case where his life would rest on the jury's verdict." The court, he concludes, "finds these actions not only unconstitutional in regards to due process, but abhorrent to the judicial process."

But the problem is more profound than a failure to train young prosecutors in their constitutional obligations. It is the lopsided nature of the American criminal justice system itself. Last May, in the wake of the Supreme Court's Connick decision, retired Justice John Paul Stevens noted in a speech the system's "imbalanced incentives." Because prosecutors must always show themselves to be tough on crime, Stevens said, the pressure to get convictions will always outweigh the benefits of protecting the rights of the defendant. Yet after-the-fact scrutiny of a prosecutor's role in a case can be costly, time-consuming, and, in some cases, irrelevant if it comes too late to save the life of the wrongly accused.

Deirdre Enright, one of Wolfe's lawyers, is co-director at the University of Virginia's Innocence Project. (Disclosure: She is also a friend.) "It's rattling, to say the least, to have a criminal justice system that embraces the routine imposition of the death penalty, that at the same time allows very little inquiry and almost no scrutiny of the people controlling the system," she said. "Then Justin Wolfe's sizable defense team (that includes the UVA Innocence Project, the Virginia Capital Representation Resource Center, and King & Spaulding) convinces a federal judge to give us a little scrutiny, and the judge finds what he sees as 'abhorrent.' "

  The Washington Post refers to Ebert as the "dean of Virginia's prosecutors," and that is what makes this case so different from the Connick prosecution. This isn't an aberrant prosecutor. Ebert is a well-respected, bar-association-honored prosecutor who's often called in to train others. In a statement Wednesday Ebert told the Post that it "offends me to have anyone say that about me or my office." He will probably get a chance to defend his reputation on appeal, as this case may well be resolved at the Fourth Circuit or even at the Supreme Court— where, as we learned this term, there are no overzealous prosecutors, only misunderstood ones.

Justin Wolfe, meanwhile, will likely serve many more years in prison for his drug-related crimes, and an appeal of Jackson's order is likely. In a statement made through his lawyers Wednesday night, Wolfe said: "As I told everyone when I turned myself in 10 years ago, I had nothing to do with the murder of Danny Petrole. I'm lucky to have had so much help over the years trying to prove my innocence. I'm grateful that Judge Jackson has recognized that my trial was unfair—I'm just sorry it took so long, and took such a toll on my family." Maybe he can take some solace from the judicial acknowledgement that, even in a country that enthusiastically supports capital punishment, we mostly draw the line at executing people for crimes they didn't commit.

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