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Dahlia Lithwick’s latest piece on Slate, published earlier this evening, provides a terrific update on the Justin Wolfe case, one we’ve been following for some time here at The Open File.

For those who aren’t familiar with the case, Wolfe’s death sentence and conviction were thrown out in 2011 after a federal judge found multiple acts of misconduct on behalf of Paul Ebert, who has sent more men to death row in Virginia than any other prosecutor in the state. Last year the 4th Circuit ruled that Wolfe could be retried by Prince William County for the 2001 murder-for-hire of Daniel Petrole, Jr., but the state hasn’t been rushing to make that happen. Instead, it’s laid new drug-related charges against Wolfe that could put him in prison for life.

Lithwick’s piece “Why Is Justin Wolfe Still in Prison?” presents the argument that prosecutors are trying to strong-arm Wolfe into a plea bargain because they don’t want to admit that they don’t have the evidence to win a murder conviction at trial. She asks, “Why is the commonwealth still prosecuting a case in which the evidence is impossibly tainted, the star witness has taken the fifth, and which the federal district court has insisted must end because the whole thing collapsed under years of repeated misconduct?” and answers, “Because it can.”

Here’s Lithwick’s outline of the issues in Ebert’s office that led to the misconduct at the first trial:

As a result of that behavior and other actions, Judge Jackson accused the prosecutors of conduct that was “not only unconstitutional in regards to due process, but abhorrent to the judicial process.” Prosecutor Paul Ebert (who has now stepped back from the case) explained that his office suppressed all of this exculpatory evidence because it “does not have an ‘open-file policy,’ providing criminal defense counsel access to entire case files.” Ebert explained that he had “found in the past when you have information that is given to certain counsel and certain defendants, they are able to fabricate a defense around what is provided.” Put another way, Ebert admitted that his office hangs on to proof of innocence in order to keep criminal defendants from proving themselves innocent.

Read the article in full here.

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