- Associated Press - Wednesday, January 2, 2013

MANASSAS, Va. — A Virginia judge has ordered the defendant in a capital murder case to be released unconditionally from custody as of Thursday at 5 p.m. unless a federal appeals court intervenes.

Justin Wolfe has been charged twice with capital murder in the 2001 slaying of a Northern Virginia drug dealer. And twice a federal judge has ordered the charges tossed out for alleged misconduct by Prince William County prosecutors.

The most recent order came from Judge Raymond Jackson in Norfolk on Christmas Eve and requires Mr. Wolfe’s release by Jan. 3.

At a hearing Wednesday in Manassas, Circuit Judge Mary Grace O’Brien said she will abide by that ruling and release Mr. Wolfe on Thursday unless an appellate court intervenes.

Virginia’s attorney general’s office is asking the federal appeals court in Richmond to halt Mr. Wolfe’s release.

Judge Jackson, in his Christmas Eve ruling, said the prosecution of Mr. Wolfe is irrevocably tainted by prosecutors’ misconduct. Specifically, he says prosecutors coerced false testimony from their star witness, Owen Barber, and withheld from the defense evidence that would have undermined Barber’s credibility.

Judge Jackson also said prosecutors compounded the error by making a jailhouse visit to Barber in September and making thinly veiled threats against him if he wavered from his initial testimony implicating Mr. Wolfe.

Barber testified at Mr. Wolfe’s original trial in 2002 that Mr. Wolfe had hired him to shoot and kill Daniel Petrole to get out of a debt Mr. Wolfe owed Petrole. Barber’s testimony came as part of a plea bargain that spared him the death penalty. Mr. Wolfe was convicted and sent to death row.

In recent years, though, Barber has flip-flopped on his testimony several times. His most recent testimony, in Judge Jackson’s Norfolk courtroom, was that he had falsely implicated Mr. Wolfe because prosecutors had told him that was the only way he could get a plea deal.

Special prosecutor Raymond F. Morrogh, who took over the case after Prince William County Commonwealth’s Attorney Paul B. Ebert recused himself in September, said Wednesday that he has no doubt Barber’s initial testimony implicating Mr. Wolfe was the truth. Mr. Morrogh said Barber was badgered for years by Wolfe’s appellate lawyers and opponents of the death penalty to change his story. Mr. Morrogh also said he has hard evidence showing that aspects of Barber’s testimony to the federal judge was a lie, including cellphone records that contradict Barber’s testimony about the locations of key players in the slaying.

“As someone who’s read every scrap of evidence in this case they’ve got the facts wrong over there” in Norfolk, Mr. Morrogh said Wednesday. “I’m sorry to say it, but they’re wrong.”

Mr. Wolfe’s attorney, Kimberly Irving, countered that it doesn’t matter if Mr. Morrogh disagrees with Judge Jackson — the judge’s ruling ordering Mr. Wolfe’s release and dismissal of the charges against him is still valid and binding.

Another attorney for Mr. Wolfe, Edward MacMahon, said that after a decade of legal wrangling, the state should drop its case and accept the fact that Mr. Wolfe is innocent.

“This isn’t a gift to him or some technicality,” Mr. MacMahon said.

If Mr. Wolfe is released Thursday afternoon, it isn’t clear what happens next. Mr. Wolfe’s lawyers said the order will not only release Mr. Wolfe from custody but also result in all charges being dismissed. Under the defense theory, prosecutors also would be barred from filing any new charges.

Mr. Morrogh, though, said he expected Judge O’Brien’s order to encompass only whether Mr. Wolfe should remain in custody. He argued at Wednesday’s hearing that certain charges still could be brought against Mr. Wolfe even if Judge Jackson’s order remains in effect.

Mr. Wolfe’s mother, Terri Steinberg, was hopeful after Wednesday’s hearing.

“I don’t know if it’s real yet,” she said through tears. “We’ve got to wait until tomorrow at 5 p.m.”

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