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.

Death penalty. Click image to expand.
Should the death penalty be imposed when the strongest evidence to convict is a co-conspirator's testimony?

Almost 10 years ago, Justin Wolfe was convicted of murder in the killing of his drug supplier, Daniel Petrole Jr., who was gunned down near his home in Manassas, Va., in 2001. The murder and trial exposed a massive Northern Virginia drug ring, featuring a made-for-TV array of strippers, night-clubbers, and champagne-sippers, with Wolfe—described by the prosecutor as "a Little Al Capone"—at the epicenter.

Dahlia Lithwick Dahlia Lithwick

Dahlia Lithwick writes about the courts and the law for Slate. Follow her on Twitter.

Except that the entire case seems to have been built around a lie. On Tuesday, a federal judge in Virginia vacated Wolfe's murder conviction and death sentence. And while his decision exposes serious prosecutorial misconduct in Wolfe's case, it also illustrates a deeper problem: a capital punishment system that encourages bad behavior, then magnifies the sin by allowing that behavior to go undetected.

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In 2009, Drew Lindsay did an in-depth report on the Wolfe case for Washingtonian magazine titled "An Innocent Man on Death Row?"It's worth reading in its entirety, but the critical bit of information that emerges is that the man who actually shot Wolfe's drug supplier—Owen Barber IV—was the main witness against Wolfe in the murder-for-hire case. Even the prosecutors agreed at the time of conviction that without Barber's testimony, "Wolfe never would have been prosecuted." But Barber recanted his testimony in a 2005 affidavit, swearing that Wolfe had never hired him to kill the Petrole, and that he had lied on the stand after the police threatened him with the death penalty if he didn't implicate Wolfe. Barber told a roommate and a prison cellmate the same things. He recanted once again—returning to his story that Wolfe ordered the killing.

Because Virginia is Virginia, and thus second only to Texas in the number of executions it carries out, the fact that the star witness in a death penalty case recanted his testimony didn't seem to impress the courts all that much. Until this week, that is, when Judge Raymond A. Jackson of the U.S. District Court in Norfolk granted Wolfe's petition for habeas corpus relief because—as he explained—the state had violated Wolfe's due process rights by using Barber's false testimony and withholding information it was obligated to turn over under Brady v. Maryland,informationthat could be used to impeach the witnesses against him.

A few months ago, the Supreme Court decided, in Connick v. Thompson, that a man who had been on death row for 14 years as a result of breathtaking prosecutorial misconduct—including a failure to turn over exculpatory Brady material—could not collect damages from the supervisor who failed to train his prosecutors in their Brady obligations. That case was striking for a number of reasons, not the least of which was Justice Clarence Thomas' characterization of a whole network of prosecutorial lies and deceptions as an isolated act. But the prosecutors in the Wolfe case are not a bunch of untrained lawyers, fresh out of law school and lacking in supervision. As Lindsay noted in his article, Wolfe's chief prosecutor, Paul Ebert, has been the commonwealth's attorney for Prince William County since 1968.

Moreover, writes Lindsay: "Ebert is the state's ace when it comes to capital cases. He has won 13 convictions—more than twice as many as Robert Horan, the 40-year Fairfax prosecutor who retired in 2007. Four of the 16 inmates on death row—including sniper John Muhammad—were prosecuted by Ebert." That's what makes Jackson's opinion of his conduct all the more damning.

Jackson's 57-page memorandum opinion is scathing in its findings of prosecutorial misbehavior by Ebert and his assistant, Richard A. Conway. Conduct evidently included choreographing and coordinating witness testimony, withholding tapes of witness interviews from the defense, and knowingly allowing false testimony to be introduced at trial. Jackson finds that prosecutors failed to turn over a report showing that it was police detectives who first introduced the idea to Barber that Wolfe had masterminded the killing, and who gave him the option of implicating Wolfe or receiving the death penalty. He finds that they suppressed evidence that Barber confessed to his roommate that he'd acted alone.

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."

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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