Motions heard in retrial of No.Va. capital murder case

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MANASSAS, Va. — No one was more instrumental in putting then-20-year-old Justin Wolfe on death row than his one-time associate, Owen Barber IV.

And no one was more crucial a decade later in getting Justin Wolfe off death row than Barber, who eventually recanted the testimony against Wolfe that was integral to Wolfe’s capital murder conviction.

Now lawyers on both sides are trying to figure out what story Barber will tell next, and a judge must decide whether prosecutors were improperly trying to sway Barber back to their side during a jailhouse visit in September.

A Prince William County judge heard evidence Tuesday on defense lawyers’ motion to toss out the new murder charges against Wolfe. The lawyers claim prosecutors threatened Barber with the death penalty if he continued to disavow his original testimony. The judge will hear further arguments later this week.

Both Wolfe and Barber were charged in the 2001 killing of a large-scale marijuana supplier, Daniel Petrole, that exposed the workings of a drug ring in affluent northern Virginia suburbs. Prosecutors said Petrole’s death was a murder for hire so Wolfe could avoid debts he owed to Petrole. Barber testified that he killed Petrole at Wolfe’s request. Barber struck a plea deal that spared him the death penalty, and Wolfe was convicted and sentenced to death.

Last year, though, a federal judge tossed out both the conviction and sentence against Wolfe and ordered a retrial. The judge said prosecutors deliberately withheld evidence that would have discredited Barber’s testimony.

Now, with Wolfe’s retrial scheduled for Jan. 2, attention is focused on a two-hour jailhouse visit to Barber by Prince William County prosecutors Paul Ebert and Richard Conway. The judge heard a nearly two-hour recording of the visit Tuesday.

In the meeting, prosecutors make it clear to Barber that recanting his trial testimony violates the terms of his plea bargain, and they could bring capital charges against Barber. It’s also clear from the recording that Barber had no idea that his recantation could potentially put him on death row.

But prosecutors and the defense interpret the meeting differently. The defense argues the visit is a thinly veiled threat to Barber that he must either testify the way the government wants or face execution.

Prosecutors say the meeting was proper and that they were merely trying to find out why Barber, who has flip-flopped several times over the last 10 years, keeps changing his story.

On the recording, Conway, an assistant commonwealth’s attorney, repeats on several occasions that all he wants from Barber is the truth. And he chastises the lawyers for anti-death penalty groups who made repeated jailhouse visits to Barber to get him to change his story, saying they conned Barber into recanting without explaining to him that he could be exposing himself to the death penalty.

“You know what you did and you know why you did it and you know what Wolfe did,” Conway tells Barber. “And there’s nothing you can do about the truth except speak it, you know. And that’s all we ever asked of you.”

Defense lawyer Ed MacMahon said the jailhouse visit needs to be viewed in the broader context of the case, in which a federal judge and a federal appeals court accused Ebert and his team of misconduct, and that they are now trying to salvage the case against Wolfe at all costs to preserve their reputation.

“We’re not dealing with a case where some sort of halo of good intentions should be granted to prosecutors here,” MacMahon said. “Telling (Barber) he could be indicted for capital murder is not an act of grace, judge.”