- Associated Press - Monday, November 19, 2012

A former death row inmate in Virginia whose conviction was overturned on accusations of misconduct by prosecutors is petitioning a judge for his immediate release.

Lawyers for Justin Wolfe filed the motion Friday in U.S. District Court in Norfolk. They argue that Virginia prosecutors have waited too long to retry Mr. Wolfe on charges that he orchestrated a murder for hire as part of his drug-dealing enterprise.

Mr. Wolfe was convicted in 2002 and sent to death row. But a federal judge overturned the conviction, ruling that Prince William County prosecutors hid evidence that would have undermined their case.

The judge gave state prosecutors 120 days to either retry Mr. Wolfe or grant his unconditional release. Mr. Wolfe’s lawyers say that time is up.

Mr. Wolfe’s retrial is currently scheduled to begin in January.

A spokesman for Virginia Attorney General Ken Cuccinelli, whose office defends the state in the federal proceedings, did not respond to an email seeking comment Monday.

The motion puts the case in front of U.S. District Judge Raymond Jackson for the first time since state prosecutors decided to retry it.

Paul Ebert, the Prince William County Commonwealth’s Attorney who first tried Mr. Wolfe, recused himself from the case and had himself replaced with Fairfax County Commonwealth’s Attorney Ray Morrogh, who quickly decided that Mr. Wolfe should be retried on capital murder charges. Mr. Morrogh said in open court shortly after taking the case that “Wolfe was absolutely involved in this murder and planned it and caused it to occur and he did it out of greed. … Justin Wolfe is many things but innocent is not one of them.”

Mr. Morrogh’s decision disappointed Mr. Wolfe’s supporters, who felt that Mr. Morrogh ignored the findings of Judge Jackson that cast serious doubt on the case against Mr. Wolfe. They tried unsuccessfully to get Mr. Morrogh removed from the case.

Mr. Jackson vacated Mr. Wolfe’s conviction after determining that Mr. Ebert – Virginia’s longest-serving prosecutor who has put more men on Virginia’s death row than any other commonwealth’s attorney – withheld evidence that would have discredited their key witness, triggerman Owen Barber IV. Mr. Barber recanted his testimony implicating Mr. Wolfe at a hearing held in front of Judge Jackson.

In his most recent court appearance, Mr. Barber declined to offer any testimony, invoking his Fifth Amendment right against self-incrimination.

A hearing date on Mr. Wolfe’s motion has not yet been scheduled.

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