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4th Circuit allows capital retrial of alleged drug kingpin

McLEAN, Va. — A federal appeals court ruled Wednesday that Virginia should be allowed to pursue a capital murder case against an alleged drug kingpin from northern Virginia, overruling a lower court that had sought to put an end to the 12-year legal saga by ordering his unconditional release.

In a 2-1 ruling, the 4th U.S. Circuit Court of Appeals in Richmond overturned a federal judge in Norfolk who had ordered a halt to the prosecution of Justin Wolfe, who faces death penalty charges in Prince William County, Va., for the 2001 slaying of a large-scale marijuana supplier, Daniel Petrole.

The case exposed the workings of a major drug ring in affluent northern Virginia. Wolfe has admitted that he dealt drugs but has consistently denied any role in Petrole’s death.

U.S. District Judge Raymond Jackson said misconduct by prosecutors in Prince William County made it impossible for Wolfe to get a fair trial.

But a majority on the appellate court disagreed. Judges Robert Bruce King and Allyson Kay Duncan ruled that a new trial can be done fairly. They wrote that Jackson “fashioned an overbroad remedy and thereby abused (his) discretion by precluding the Commonwealth from retrying Wolfe.”

A dissenting judge, Stephanie Thacker, said the misconduct was so bad that freeing Wolfe was the only proper outcome. She reeled off a long list of examples of misconduct, including failures by Prince William County Commonwealth’s Attorney Paul Ebert to disclose evidence that would have undermined the credibility of the state’s star witness — Owen Barber, the triggerman in Petrole’s death who initially testified that Wolfe hired him to do the killing.

Barber subsequently changed his story several times, and Thacker said prosecutors compounded their misconducting by visiting Barber in jail last year and pressuring him to go back to his original story implicating Wolfe.

“The Commonwealth’s misconduct has continued far too long, and the cumulative misconduct permeating this case has tainted it in such a way that it is doubtful Wolfe will receive a fair and just trial. Enough is enough,” Thacker wrote.

King and Duncan are appointees of Presidents Bill Clinton and George W. Bush, respectively. Thacker is an appointee of President Barack Obama.

Ebert has since recused himself from the case, and the retrial is being handled by Fairfax County Commonwealth’s Attorney Ray Morrogh, who did not return a phone call Wednesday.

Wolfe’s trial attorney, Edward MacMahon, and appellate attorney, Michele Brace, said Thursday they are studying the ruling and had no comment on whether Wolfe would seek an appeal to either the U.S. Supreme Court or the full complement of 4th Circuit judges. MacMahon said he was “pleased that the court recognized the gravity of the misconduct,” especially in the dissenting ruling.

Wolfe’s case has now been in front of the appeals court three separate times. He was sentenced to death after his 2002 conviction in Manassas, and spent a nearly a decade on death row. In 2011, Jackson overturned Wolfe’s conviction and the appeals court upheld his action.

While Wednesday’s ruling allows the state to prosecute Wolfe, the majority judges said Wolfe’s allegations of prosecutorial misconduct may be grounds for an appeal if he is convicted in a retrial.