- Associated Press - Thursday, January 3, 2013

MANASSAS — A federal appeals court intervened Thursday to halt the release of a capital-murder defendant who had been slated to go free.

The 4th U.S. Circuit Court of Appeals in Richmond granted a stay sought by Virginia’s attorney general and local prosecutors. The appellate court’s action delays an order from a federal judge for the unconditional release of Justin Wolfe, who is facing death-penalty charges for the 2001 slaying of a Northern Virginia drug dealer.

The district judge, Raymond Jackson in Norfolk, had said the state’s prosecution of Mr. Wolfe was irreparably harmed by prosecutors’ misconduct in allegedly coercing testimony from a key witness and failing to turn over evidence that could have helped the defense. Judge Jackson ordered Mr. Wolfe released by Jan. 3 and barred prosecutors from trying Mr. Wolfe. A state judge had said she would abide by the ruling and release Mr. Wolfe at 5 p.m. Thursday unless an appellate court intervened. The appeals court’s order came barely an hour before Mr. Wolfe was to have been released.

Prosecutors say they acted properly and that Judge Jackson wildly exceeded his authority by barring Mr. Wolfe’s prosecution.

The appeals court in Richmond plans to hear the issue in full at the end of the month.

Kimberly Irving, one of Mr. Wolfe’s attorneys, said Thursday that she obviously would have preferred that her client be released, but she remains confident that the appeals court ultimately will uphold Judge Jackson’s ruling and release her client.

Thursday’s action is just the latest in a legal odyssey for Mr. Wolfe, who was first arrested in 2001 and charged with the murder of drug dealer Daniel Petrole.

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 he was the triggerman in Petrole’s death. Barber testified that Mr. Wolfe had paid him to kill Petrole so that Mr. Wolfe — himself a drug dealer — could get out of a debt he owed Petrole.

Barber’s testimony was part of a plea deal that allowed him to escape the death penalty. Since then, though, Barber has changed his story about what happened several times. His most recent version came in front of Judge Jackson, when Barber testified that he falsely implicated Mr. Wolfe to satisfy prosecutors who had predetermined that Mr. Wolfe was the mastermind.

In 2011, Judge Jackson tossed out the conviction and death sentence against Mr. Wolfe, who at one point had been just five days from execution.

Last year prosecutors filed new capital-murder charges against Mr. Wolfe, and the original prosecutor, Prince William County Commonwealth’s Attorney Paul B. Ebert, recused himself from the case. But in September, before he recused himself, Mr. Ebert and an assistant made a jailhouse visit to Barber trying to ascertain why he had changed his story. In that visit, they informed Barber that he could face the death penalty himself for renouncing his initial testimony.

Judge Jackson viewed the jailhouse visit as a thinly veiled threat that compounded the earlier misconduct by prosecutors. On Dec. 24, he ordered Mr. Wolfe freed and barred the state from pursuing its prosecution of him.

The new prosecutor, Raymond F. Morrogh, said he has reviewed all the evidence in the case and is convinced that Barber’s initial testimony was truthful. He also said he has hard evidence to prove Barber was lying when he testified on Mr. Wolfe’s behalf before Judge Jackson in Norfolk. Mr. Morrogh said Barber was badgered relentlessly by Mr. Wolfe’s appellate attorneys and opponents of the death penalty to change his story.

AP Writer Larry O’Dell contributed to this report from Richmond.

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