A Northern Virginia man sentenced to death a decade ago in a high-stakes murder-for-hire scheme could be a step closer to freedom.
The office of Attorney General Kenneth T. Cuccinelli II declined to seek further review from the 4th U.S. Circuit Court of Appeals after a three-judge panel said last month that Justin Wolfe of Chantilly, who was convicted and sentenced to death in 2002, should be exonerated because the prosecution improperly sat on evidence discrediting a key witness. Mr. Wolfe was convicted for his role in a scheme that resulted in Owen Barber killing Mr. Wolfe's marijuana supplier, Danny Petrole.
"In our opinion, further litigation would not change the result," Cuccinelli spokeswoman Caroline Gibson said in an email. "Accordingly, we did not oppose the mandate issued by the Fourth Circuit."
The ruling, or mandate from the court, took effect Friday.
The state could now let Mr. Wolfe go free, appeal to the U.S. Supreme Court or retry him. Ms. Gibson directed inquiries on those options to the Prince William County Commonwealth's Attorney's Office. Commonwealth's Attorney Paul B. Ebert did not return a phone message seeking comment.
"I think it's a small step forward to Wolfe's potential release," said Richard Dieter, executive director of the Death Penalty Information Center. "There's still some decisions to be made, but this was a strong criticism of the prosecutors."
In 2005, Barber recanted testimony that Mr. Wolfe had hired him to kill Petrole for $13,000 in cash and drugs. He also signed a sworn affidavit saying he had lied to avoid the death penalty after his own conviction.
"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," Barber said in the sworn statement.
"Justin does not deserve to die for something he did not do," Barber wrote. "I am not angry at him anymore and I feel bad about the fact that an innocent man is on death row."
But five months after that statement, he again changed his story and said he had testified truthfully at the trial.
In February 2010, the 4th Circuit ruled that Mr. Wolfe's claims of innocence weren't properly considered and he won an evidentiary hearing in U.S. District Court later that year.
Jason Coleman, Barber's roommate, testified in District Court that he spoke with Barber after the killing and Barber conceded he had acted alone. Coleman also said he told prosecutors about that conversation.
State officials maintain they were not told about or do not recall such a statement. They criticized the District Court for "reject[ing] the state officials' testimony in favor of admitted liars and drug dealers."
In July 2011, U.S. District Judge Raymond A. Jackson threw out Mr. Wolfe's conviction, citing prosecutors' use of Barber's false testimony. He also said Mr. Wolfe's right to due process had been violated.
The judge said that regardless of whether the failure to disclose such an agreement was intentional or unintentional, it warranted overturning Mr. Wolfe's conviction.
Since 1973, 140 people on death row have been exonerated and released, according to the Death Penalty Information Center. Virginia has had the second-most executions since the death penalty was re-instated 1976 with 109, behind only Texas' 484.
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