Virginia prosecutors will do just about anything to execute Justin Wolfe (updated)

While everyone is enjoying that ridiculous lawyer ad, Justin Wolfe spent 10 years on death row, convicted of a murder-for-hire and sentenced to death. After the state courts upheld his conviction and dismissed his claims, he filed a petition for writ of habeas corpus in federal court. A federal judge reversed his conviction and found that he was actually innocent of the crime [PDF]1:

The prosecution’s case rested on the testimony of a single key witness, Owen Barber, who   admitted that he shot and killed the victim but told the jury that he had done so at petitioner’s behest. It was later discovered that prosecutors intentionally withheld exculpatory evidence that could have been used to impeach that testimony and prove   petitioner’s innocence.

In federal habeas proceedings, Barber fully recanted his trial testimony and the district court found that petitioner is actually innocent under Schlup v. Delo, 513 U.S. 298 (1995). It based that determination on an affidavit Barber had executed, swearing that petitioner had nothing to do with the murder; corroborating declarations from other witnesses to whom Barber had admitted his perjury at various times; and other significant evidence.

The intentionally withheld evidence was a police report about a meeting with Barber,

which show[ed] that before Barber said anything to the police about the crime,   Commonwealth officials threatened Barber with the death penalty if he did not testify that petitioner had hired him to commit the murder. Pet. App. 147a. The district court then held an evidentiary hearing at which Barber made clear that he testified falsely at trial because of the prosecutors’ threats. He also testified that petitioner had no involvement in the murder.

The biggest problem with Brady, as has been repeatedly stated, is the lack of any enforcement mechanism. Prosecutors are left to their own good will to determine what, if anything, is “exculpatory” and constitutionally required to be turned over.

But the wretched scum who prosecuted Wolfe are quite another breed:

Commonwealth officials also intentionally suppressed other crucial evidence that contradicted their theory of the crime. For example, the prosecutors “withheld evidence of Barber’s personal dealings with the victim, including a claim that Barber owed Petrole money, a claim that Petrole had a hit out on Barber, and a claim that Barber and Petrole had recently associated with each other socially.” Pet. App. 135a. They also failed to disclose   that Barber’s roommate, Jason Coleman, had told the prosecutors “that Barber said he acted alone.” Pet. App. 134a–135a n.9.

And why, exactly, would a prosecutor suppress this? Besides the obvious bloodlust to put a person on death row, it’s because of a blatant disregard and dislike of the Constitution and individual rights. It’s because they believe the lies they sell. It’s because their job isn’t justice, it’s vengeance. It’s because they think they’re better than you and they are the arbiters of your morality.

Indeed, one of the prosecutors later admitted that he routinely declines to turn over exculpatory material because defendants can use it “to fabricate a defense.” Pet. App. 38a.

The lead prosecutor, Paul Ebert, also testified. In a remarkable exchange, Ebert confessed that he has made it a practice to withhold exculpatory evidence, based on his own credibility and relevancy determinations, to ensure that defendants cannot “fabricate” a defense. Pet. App. 38a, 82a, 115a, 175a n.24. Ebert also acknowledged that the prosecutors had “choreographed and coordinated witness testimony through a series of joint meetings”   between Barber and other key witnesses to resolve inconsistencies in the witnesses’ stories. Pet. App. 38a, 131a–132a. The suppression of critical exculpatory evidence at petitioner’s trial was thus “entirely intentional.” Pet. App. 38a, 84a, 115a.

The Fourth Circuit, in upholding the finding of innocence, calls Ebert’s explanation “flabbergasting”.

That’s putting it mildly. Let me break down just what Ebert does: his police officers make an arrest. He is presented with evidence that then shows that the man who was arrested may not be guilty. He doesn’t follow that evidence to let the man go, but rather contrary to it doubles down, despite knowing that the man may be innocent. He then hides that evidence, because he believes that a defense centered around the evidence that shows the man is innocent may be used to “fabricate” a defense that the man is innocent.

In other words, he don’t give a fuck. If you’re arrested, you’re gonna get convicted goddammit, or his sister ain’t his wife.

This case is now pending before the United States Supreme Court, which will decide this month whether to hear the appeal.

Oh. The appeal isn’t whether the district court did the right thing in ordering his conviction vacated and making Virginia try him again. The appeal is about what the district court judge can do when it orders Virginia to try him within 120 days or release him and Virginia lets the 120 days go by and says “fuck off” to the judge.

You see, Wolfe is still sitting in jail. He was just recently denied bond. And he was indicted again for this same crime.

But, Barber, you remind us! Barber! He’s the guy! He said Wolfe had nothing to do with. Yeah, that was before Virginia prosecutors got to him. Again. Threatening him with the death penalty. Again. So now he’s recanted the recantation, because seriously, who doesn’t want ot live? And now he’s claiming his Fifth Amendment privilege against self-incrimination, so he can’t testify at Wolfe’s re-trial to prove Wolfe’s innocence. This latest misconduct is so outrageous that I’m going to throw a wall of text at you – read it:

Despite having been chastised by two federal courts, the Commonwealth neither released   petitioner from custody nor even attempted to retry him within the required 120 days. Instead, the prosecutors devised a strategy that was deliberately calculated to deprive petitioner of a fair retrial. Recognizing that they could not prevail at retrial without Barber’s testimony implicating petitioner and if petitioner could use the previously withheld exculpatory evidence, the Commonwealth’s original prosecutors, joined by Detective Newsome (who came out of retirement for the sole purpose of participating in petitioner’s re-prosecution), arranged to visit Barber at Augusta Correctional Center just days after the Fourth Circuit issued its mandate. Pet. App. 8a, 74a. Over the course of an hour-long   interrogation, which the Commonwealth secretly recorded, the prosecutors pressured Barber to revert to the same perjured trial testimony that the federal court determined had been “fed” to Barber by Detective Newsome. Pet. App. 8a, 41a; cf. Wolfe v. Clarke, 691 F.3d 410, 423 (4th Cir. 2009).

Significantly, at “no point did Barber relent”— instead, he continued to insist that petitioner had no involvement in Petrole’s murder. Pet. App. 42a (Thacker, J., dissenting). Barber thus told the prosecutors that his testimony at any retrial would be the truth, just as he had told the truth in federal court—that petitioner was not involved in Petrole’s murder. Pet. App. 47a.

In response, the prosecutors made the same threats they had made in 2002. In particular, they showed Barber a highlighted copy of Ricketts v. Adamson, 483 U.S. 1 (1987), which they had brought with them, and told Barber that under Ricketts his previous plea deal could be undone if he did not cooperate. They made clear to Barber that if he did not revert to his original trial testimony, he could face new capital murder charges. Pet. App. 8a, 74a–75a. The prosecutors also made repeated references to Barber’s “prison privileges and responsibilities in a manner that create[d] the impression that they were either under threat or could be subject to enhancement if Barber testified in a manner favorable to the Commonwealth.” Pet. App. 75a–76a   (Thacker, J., dissenting). These threats were designed either to force Barber to revert to his perjured testimony or to put him in the position of   having no choice but to invoke his Fifth Amendment right, thus making him “unavailable” for any second trial. The prosecutors knew that under Virginia’s rules of evidence, a witness’s former testimony can be read to the jury if that witness is unavailable.

This is why the death penalty is dangerous and should be abolished. This is why prosecutors should not have immunity. This is why you should question everything the government does.

Update: Thanks to Popehat, we learn that Paul Ebert got an award a few years ago and the article is full of lulz:

Over the decades, he has prosecuted drug, murder and child-abuse cases. He has incarcerated numerous criminals and sent more than a dozen people to death row. He is perhaps most well-known as the prosecutor in the death penalty case of Washington area sniper John Allen Muhammad. But he has also been a supporter of programs that provide alternatives to jail for some nonviolent felons.

“He’s very fair,” said Ebert’s son, Pete. “He’s always said the law shouldn’t be so stringent that you don’t give somebody a second chance. He’s also never lost his belief in humanity, even though he’s seen the darker side of it.”

A second chance at ensuring that a likely innocent man gets executed, is more like it.

A number of readers have wondered whether Ebert has gotten sanctioned in any way for the behavior highlighted by the Fourth Circuit.

A short, dismissive laugh will have to suffice as response.

Update 2: Thanks to Radley Balko, I see that Paul Ebert is quite famous in these parts for being the worst prosecutor ever. Three time nominee for Balko’s “worst prosecutor of the year award“, Ebert was also challenged in an election by a Ham Sandwich, Esq.


  1. Most of the factual recitations are taken from his petition for writ of certiorari to the United States Supreme Court.

10 thoughts on “Virginia prosecutors will do just about anything to execute Justin Wolfe (updated)

  1. Nathan

    Ebert sounds like an example of the prosecutor who isn’t bright enough to realize he’s out of his depth. Sadly a common breed.

    Prosecutors are often taught that you don’t give your evidence to the defense before you absolutely have to. You tell them what you intend to prove, but not how you’re going to prove it. Otherwise, you’re giving the defendant time and tools to concoct a false story (and maybe prep some lying alibi witnesses).

    But this only applies to incriminating evidence. You withhold the GOOD stuff, so the other side can’t weaken it. The bad stuff, the exculpatory stuff, is the stuff you’re supposed to turn over.

    My guess is that Ebert had only a half-assed understanding of this practice and why it exists. He seems to have thought the practice was not to turn over ANYTHING that could be used to concoct an alibi. Sounds like common sense, if you haven’t thought it through. So he made it his practice.

    This kind of unthinking, unexamined adherence to a practice is typical of prosecutors who are in over their heads. In my experience, this kind of prosecutor reacts to challenge by digging in his heels, and remaining ever more firm in his adherence.

    Which goes hand in hand with the stubborn belief that Wolfe was guilty. Or worse (but also sadly common) a misguided belief that a prosecutor’s job is to do what it takes to get a conviction. Because zealous advocacy or something. Either way it just augments the stubbornness, the doubling down, the disregard of anything contradicting one’s conclusions.

    I’m not sure I agree that ending prosecutorial immunity would solve this kind of problem. Liability for doing something wrong only works if you realize you’re doing something wrong in the first place. Maybe if the liability weren’t personal, but to the county, there might be some financial incentive to hire people with better judgment and train them better, but probably not much.

    1. Pat

      Paul Elbert is well over 70 years old and has been the elected Commonwealth Attorney as long as I can remember — at least 35 years. He’s been verbally sanctioned before by at least one federal court. He refuses to change. It has nothing to do with his training. Another problem in the Wolfe case is that the local judge on the neck argues is his protege, having worked for him for almost 20 years as an assistant.

  2. that anonymous coward

    If only there was some sort of system to deal with these sorts of things.
    People being denied due process and their rights by the State.
    There ought to be a law….. and it should be enforced swiftly.

    Fear of the people losing “faith” in the office drives this type of insanity when someone is wrongly convicted. The victim often is wronged over and over for the sake of saving face.
    Perhaps it is time that the Feds start looking at every single case this “wonderful” person was involved in and start the retrials. If he was willing to violate the law, his duty, and the rights of the accused in this case one can not simply assume that he played fair every other time.

    Perhaps this could be the moment when the people of Virginia, and elsewhere, learn that just because they want to believe what they were told that sometimes it isn’t true. That supporting someone willing to violate peoples rights against ‘the bad man’ threatens their own rights if that same system decides they are now ‘the bad man’.

    How screwed up of a system do we have when someone who is innocent can sit in jail, and the people who conspired to put him there are still free? That the system is more concerned about the rights of the state before it MIGHT get around to correcting the horrific abuse of the rights of an innocent man.

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