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Gather round the campfire, children, for one of the scariest prosecutorial misconduct stories in the land. Thanks to a remand from the U.S. Supreme Court yesterday, this terrifying tale may yet have a just ending. We hope so.

We’ve written several times before about Justin Wolfe, who was sent to Virginia’s death row after a very, very unfair criminal justice process and prosecution led by notorious (and not in the good, RBG, way) Prince William County prosecutor Paul Ebert.

Wolfe was capitally sentenced in 2002 for being the mastermind behind a murder-for-hire plot. The state’s only direct evidence was the word of the shooter, Owen Barber, who prosecutors promised they would spare from death if he testified against Wolfe. When Barber recanted, prosecutor Paul Ebert paid him a visit in prison to threaten him with capital charges.  Under Ebert, Prince William County ranked in the top two percent of counties generating death sentences in all of the U.S.

A decade after Wolfe’s conviction and death sentence, he successfully obtained federal habeas relief due to prosecutorial misconduct. The State’s misconduct included withholding material, exculpatory information and allowing witnesses to present false testimony. The undisclosed evidence included, importantly, information that greatly damaged the credibility of the original investigation into the crime. The evidence showed that it was police who first suggested to Barber that Wolfe was involved, and that police failed to act on undisclosed other leads in the case, among other issues. See p 6. of Wolfe’s cert petition for more details.

Yet, when Wolfe won relief based on misconduct, the State doubled down on bad practices. Unlike in most Brady busts, Ebert freely admitted he regularly withheld exculpatory evidence as part of his strategy. Still, the Fourth Circuit irrationally believed his office would self-police:

“Describing the prosecutor’s rationale for withholding information— that he purposefully avoided providing information that could be used “to fabricate a defense”—as a “flabbergasting explanation,” the court of appeals noted that the district court had “rightly lambasted” the Commonwealth. Id. The court pointed out that, in an earlier case arising out of Prince William County, it had similarly “refuse[d] to condone the suppression of evidence by the [same] prosecutors, and advised them to ‘err on the side of disclosure, especially when a defendant is facing the specter of execution.’” Id. at 424 (quoting Muhammad v. Kelly, 575 F.3d 359, 370 (4th Cir. 2009)). “We sincerely hope,” the court concluded, “that the Commonwealth’s Attorney and his assistants have finally taken heed of those rebukes.” (Cert petitionp. 8) 

Days later, the prosecutor’s office filed an ex parte motion to be recused, asking the court to appoint a new prosecutor they had selected. The court obliged. Publicly declaring his certainty of Wolfe’s guilt the next day, that prosecutor proceeded to bring six new indictments in addition to the three original charges. The new charges carried even more severe penalties than had the original three. The case was entirely based on the original investigation – in other words, after its fabricated case collapsed, the State failed to undertake a new investigation into the facts of the murder of Daniel Petrole.

After losing an appeal charging vindictive prosecution, Wolfe took a plea deal. If there’s one theme here, through Wolfe’s and Barber’s story, it’s pretty simple. It’s very, very, frightening when a prosecutor threatens you with a possible death sentence. That’s a lot of power. And Prince William County prosecutors know it and use it.

So Wolfe turned to the U.S. Supreme Court, seeking relief based on a 2018 decision, Class v. United States, in which the Court held that a defendant who pleads guilty to criminal charges is not barred from raising on appeal whether the government had the constitutional authority to prosecute the charges against him.

As Wolfe’s Reply brief puts it:

“The prosecutors’ egregious misconduct in obtaining Wolfe’s pre-habeas convictions—including their failure to disclose material exculpatory evidence and their pressuring of witnesses to present perjured testimony—was “abhorrent to the judicial process.” Wolfe v. Clark, 691 F.3d 410, 424 (4th Cir. 2012), see also Pet. 8–9. When Wolfe successfully obtained habeas relief, he was entitled to a fair trial purged of the constitutional violations that contaminated the earlier proceedings. Wolfe had consistently maintained his innocence and the prosecution’s central witness at his first trial had credibly recanted his testimony, which is one reason the federal courts granted habeas relief. In preparing for retrial, the Commonwealth should have respected the federal courts’ decisions and carefully evaluated whether there was any part of their case not irreparably tainted by perjured testimony and unethical prosecutorial misconduct. Instead, the prosecutors rendered the habeas process a meaningless exercise by threatening the recanting witness in an effort to change his testimony and, when that tactic proved unsuccessful, by vindictively adding six new and more severe charges against Wolfe without conducting any further investigation. When the state court refused on retrial to rebuke this obvious misconduct, and facing yet another unfair trial, Wolfe pleaded guilty to avoid the risk of an even longer sentence and another death sentence. Id.at 11. This is surely the type of situation where Class’s rationale is at its strongest: when a defendant’s guilty plea occurs in the face of ongoing prosecutorial misconduct and the state trial court takes no steps to check the conduct of local prosecutors.” (p. 7)

On Monday, January 7, 2018, the U.S. Supreme Court vacated the lower court’s judgment and remanded to the Supreme Court of Virginia for further consideration in light ofClass.As the reply brief notes, Wolfe isn’t asking for much here: just for the Virginia courts to hear his vindictive prosecution claim despite his guilty plea. We’ll let you know when they do.







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