- Associated Press - Monday, January 28, 2013

RICHMOND — A federal appeals panel seemed uncomfortable Monday with the notion of prohibiting a state court from retrying a capital murder defendant whose first conviction was overturned because of prosecutorial misconduct.

Prohibiting Justin Wolfe’s retrial for the 2001 shooting death of his marijuana supplier would be “the ultimate exercise in power” by a federal court, Judge Robert King of the 4th U.S. Circuit Court of Appeals said during a one-hour hearing.

Mr. Wolfe’s attorney argued that “extraordinary circumstances” warranted such a strong remedy.

“There’s never been a case with this type of misconduct when you look at the totality of the circumstances,” attorney Ashley Parrish told the panel.

Attorneys for the state claim the judge who barred the retrial, prompting them to ask the appeals court to intervene, overstepped his authority.

“Nothing is preventing a fair trial from proceeding in state court,” said Matthew P. Dullaghan, a senior assistant attorney general.

Mr. Wolfe was convicted of capital murder in January 2002 and sentenced to death in large part on the testimony of Owen Barber, who admitted shooting Daniel Petrole. Barber, who made a plea deal to avoid the death penalty, testified that Mr. Wolfe hired him to kill Petrole to get out of a drug debt.

Barber later recanted and said he acted alone. U.S. District Judge Raymond Jackson tossed the conviction and death sentence after discovering that Prince William County prosecutors failed to disclose to the defense a report showing that a police detective had told Barber he could avoid the death penalty by maintaining that Mr. Wolfe ordered the killing. The federal appeals court upheld Judge Jackson’s ruling, which left open a possible retrial.

Prosecutors filed new capital murder charges against Mr. Wolfe last year. Prince William County Commonwealth’s Attorney Paul B. Ebert recused himself, and a special prosecutor was appointed.

But before withdrawing, Mr. Ebert and an assistant visited Barber in prison and told him he could face the death penalty himself for renouncing his initial testimony. Judge Jackson viewed that as a thinly veiled threat compounding the earlier misconduct. He ordered Mr. Wolfe freed and barred the state from pursuing its prosecution.

Barber has since been provided a lawyer and has indicated that he would invoke his Fifth Amendment right not to testify in any retrial. Mr. Wolfe’s attorneys claim that not having Barber available as a defense witness would make any retrial unfair — an argument Judge King said is premature. He said he has seen witnesses vow in advance to invoke their Fifth Amendment right to avoid self-incrimination, but then testify for days when called to the stand.

“That bothers me about as much as anything in this case — that you think since his lawyer advised him to take the Fifth Amendment, the evidence is lost,” Judge King said.

He also admonished Mr. Parrish after the attorney said Mr. Wolfe is innocent.

“There’s been no showing of actual innocence in this case,” Judge King said. “I think you’re hurting yourself by trying to get into that.”

Also at issue is whether the state failed to meet the 120-day deadline Judge Jackson originally set for providing a new trial. The two sides disagree on exactly when in the legal process the clock started ticking on that mandate.

Mr. Wolfe, who spent most of the last decade on death row and once came within five days of being executed, is now in a Prince William County jail.

“We’re just continuing to hope,” said Mr. Wolfe’s mother, Terri Steinberg, who tearfully embraced supporters after the hearing. “It’s time for this case to end.”

The appeals court could rule at any time.

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