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.

Citation Guide