- Associated Press - Thursday, December 13, 2012

NORFOLK | A federal judge is deciding whether to bar Virginia prosecutors from retrying an alleged drug dealer whose original murder-for-hire conviction was overturned.

Justin Wolfe was convicted in 2002 and sent to death row. But U.S. District Judge Raymond Jackson overturned the conviction, ruling that Prince William County prosecutors hid evidence that would have undermined their case.

The triggerman in the case – Owen Barber IV – also later recanted his testimony implicating Mr. Wolfe at a hearing held in front of Judge Jackson.

Last year, Judge Jackson ordered that Wolfe be retried within 120 days or unconditionally released from prison. Mr. Wolfe’s attorneys said during a hearing Thursday that time has run out and that Judge Jackson’s order lacked teeth.

A state attorney argued that prosecutors are in compliance because the clock didn’t start until September after the 4th U.S. Circuit Court of Appeals issued its mandate sending the case back to state court.

Mr. Wolfe’s retrial is currently scheduled to begin in January. Circuit Court Judge Mary Grace O’Brien set the Jan. 2 trial date at the request of special prosecutor Ray Morrogh, who sought additional time to put his case together.

Among other things, Judge Jackson questioned whether prosecutors were in compliance with his order because they released him from his previous conviction only to immediately charge him again. Judge Jackson questioned whether that is unconditionally releasing someone from prison or not. He also questioned whether prosecutors were seeking retribution against Mr. Wolfe because of Judge Jackson’s order by giving him additional charges he didn’t originally face.

Judge Jackson is also considering whether to bar a retrial on the basis of prosecutors’ interactions with Mr. Barber, who defense attorneys contend was threatened with the possibility of a death sentence in a jailhouse meeting with prosecutors in September if he didn’t change his testimony.

Judge Jackson did not specify when he would make his ruling.