U.S. Supreme Court Orders Reconsideration of “Vindictive Prosecution” in Virginia Capital Case

The U.S. Supreme Court has ordered the Virginia Supreme Court to address a claim brought by former death-row prisoner Justin Wolfe (pictured) that prosecutors had engaged in unconstitutional vindictive prosecution against him after federal courts had found that his conviction and death sentence had been obtained through egregious prosecutorial misconduct. The Virginia Supreme Court had ruled that Wolfe’s guilty plea to the enhanced charges brought against him after his first conviction was overturned barred him from challenging the prosecutors’ conduct. In a two-sentence order on January 7, 2019, the Supreme Court granted Wolfe’s petition to review his case, summarily reversed the state court decision, and directed the Virginia Supreme Court to consider Wolfe’s vindictive prosecution claim.

Wolfe was convicted and sentenced to death in 2002 on charges that he had hired Owen Barber to kill Daniel Petrole, Jr. His conviction was overturned in 2011 when U.S. District Court Judge Raymond A. Jackson found that the prosecution had intentionally withheld exculpatory evidence, threatened a witness with the death penalty if he did not testify against Wolfe, and presented false testimony to the jury. Judge Jackson described the prosecutorial and police misconduct in the case as “abhorrent to the judicial process.” Barber, the admitted triggerman and the state’s key witness against Wolfe, had recanted his testimony in 2005. He said, “The prosecution and my own defense attorney placed me in a position in which I felt that I had to choose between falsely testifying against Justin or dying.” Prosecutors had in their possession, but withheld from the defense, a police report documenting that a detective had suggested to Barber that he implicate Wolfe in the murder or face execution, as well as information that Barber had confessed to his roommate that he had acted alone in committing the murder. The prosecution attempted to justify its conduct by saying it had withheld the evidence to avoid providing Wolfe with information that could be used “to fabricate a defense.”

In 2012, Judge Jackson ordered Virginia to release Wolfe and barred a retrial, saying that a prosecution visit to Barber in 2012 in which it again threatened him with the death penalty if he did not cooperate showed "the same subtle but unmistakable coercion" as earlier efforts to induce his testimony. Six months later, the U.S. Court of Appeals for the Fourth Circuit reversed the District Court’s ruling and allowed the state to retry Wolfe. Prosecutors not only sought to retry Wolfe, but added six new charges. Rather than face the possibility of another death sentence, Wolfe agreed to a plea deal. He pled guilty and was sentenced to 83 years in prison, with 42 years suspended. He attempted to appeal the validity of the plea “in light of the Commonwealth’s vindictive prosecution,” but the Virginia Supreme Court on February 5, 2018 refused his petition for appeal. He sought review in the U.S. Supreme Court, arguing that his appeal should be allowed under its 2018 decision in Class v. United States, which held that “‘a plea of guilty to a charge does not waive a claim that—judged on its face—the charge is one which the State may not constitutionally prosecute.’” The Supreme Court reversed the Virginia Supreme Court’s ruling and sent the case back for further consideration in light of Class.

(Order List, U.S. Supreme Court, January 7, 2019; Wolfe v. Virginia, Petition for a Writ of Certiorari, August 20, 2018.) See Innocence.