Fourth Circuit scolds Virginia over handling of 2001 murder-for-hire case 

RICHMOND, Va. (CN) — A Fourth Circuit panel made clear Monday its thoughts on Virginia’s continued prosecution of a potentially innocent inmate linked to a murder-for-hire case from decades ago.

The panel vacated a lower court’s dismissal of Justin Wolfe’s latest petition for freedom after spending the last 24 years imprisoned for the supposed hiring of Owen Barber to kill Wolfe’s cannabis supplier, Daniel Petrole. Wolfe eventually pleaded guilty to the charges, making it difficult for him to challenge his conviction.

“Twenty-four years ago, the commonwealth decided that appellant was a guilty man,” U.S. Circuit Judge Stephanie Thacker, a Barack Obama appointee, said. “From that moment, the commonwealth has done everything in its power to ensure appellant dies in prison, eschewing the Constitution, ethical strictures, and appellant’s own repeated and consistent assertions of actual innocence.”

The Supreme Court established a pathway in Schlup v. Delo for those who have pleaded guilty to present procedurally defaulted federal constitutional claims through new, reliable evidence.

The Fourth Circuit ruled that a 2023 declaration from the triggerman exonerating Wolfe counts as new evidence worthy of a rehearing. The ruling defies the government’s argument that only newly discovered, rather than freshly available, evidence is worth a rehearing.

Wolfe sold high-grade cannabis as a teenager in Northern Virginia, a wealthy suburb of Washington, for prices between $4,200 and $5,000 per pound. What’s undisputed is that Wolfe’s friend and fellow dealer, Barber, shot and killed Petrole in 2001. A jury sentenced Wolfe to death in 2002 after Barber testified that Wolfe hired him to kill Petrole.

A federal judge halted Wolfe’s execution in 2011 and dismissed all charges against him after finding that prosecutors did not conduct a proper investigation and ignored evidence that contradicted their case theory.

The day after the Fourth Circuit affirmed the lower court’s decision in 2012, the commonwealth’s attorney, his assistant and the lead investigator paid a visit to Barber in prison. In an audio recording of the conversation, the prosecutors threaten Barber with the death penalty if he provides testimony exonerating Wolfe during a retrial.

“The facts of this case span decades and deal with conduct by the commonwealth of Virginia that we and lower courts have recognized as ‘abhorrent to the judicial process,’” Thacker said.

Supposedly in fear of death, Barber twice invoked his Fifth Amendment protection against self-incrimination, but has since indicated a willingness to testify on Wolfe’s behalf.

“This context renders the Barber declaration ’new’ because the Barber declaration upset that status quo,” Thacker said. “It converted Barber from an unavailable witness, pursuant to his decision to invoke his Fifth Amendment privilege, into a witness who, even if not called at trial, was willing to provide a contemporaneous declaration exculpating appellant.”

The lower court sentenced Wolfe to 41 years’ imprisonment in 2016 after he pleaded guilty to the new charges. Wolfe appealed his conviction, unsuccessfully arguing that he made the plea involuntarily because he was the target of vindictive prosecution that subjected him to increased mandatory minimum sentences after successful post-conviction proceedings.

Wolfe’s most recent attempt at freedom relied on the Barber declaration as new proof of innocence. The government questioned Barber’s credibility, citing the changes in his story over the years. Thacker disagreed.

“He is an imprisoned man who has struggled for decades between telling the truth and preserving his own life,” Thacker said. “We cannot condone the commonwealth’s conduct in creating this dichotomy.”

U.S. Circuit Court judges Robert King, a Bill Clinton appointee, and Nicole Berner, a Joe Biden appointee, completed the panel. Attorneys representing Wolfe did not respond to comment, while the state attorney general’s office declined to comment.

“The commonwealth’s conduct in this case is a textbook example of the conduct we have recognized renders a plea involuntary,” Thacker said before asserting that a reasonable jury would have doubts about Wolfe’s guilt. “Barber’s multiple ‘credible’ recantations, his assertions that appellant had nothing at all to do with the crime, the weakness of the commonwealth’s case, the history of the commonwealth’s egregious misconduct and the strength of appellant’s claims challenging the voluntariness of his plea together support that conclusion.”