Out-of-state of­fi­cials op­pose restora­tion of death penalty

Va­lid­ity of tes­ti­mony ques­tioned af­ter ver­dict

The Washington Times Daily - - Metro - BY DAVID SHERFINSKI

RICH­MOND | Thirty-four high-pro­file for­mer judges, state at­tor­neys gen­eral and law en­force­ment of­fi­cials — in­clud­ing the for­mer chief jus­tice of the Florida Supreme Court — are ar­gu­ing against Virginia’s ef­fort to re­in­state the death sen­tence of a North­ern Virginia man widely be­lieved to have been wrong­fully sen­tenced in a mur­der-for-hire scheme.

Justin Wolfe of Chan­tilly was con­victed and sen­tenced to death in 2002 in a scheme that re­sulted in Owen Bar­ber killing Mr. Wolfe’s mar­i­juana sup­plier, Danny Pet­role. The killing ex­posed the ex­is­tence of a wide­spread drug ring sup­ply­ing North­ern Virginia.

But in 2005, Bar­ber re­canted tes­ti­mony that Wolfe had hired him to kill Pet­role for $13,000 in cash and drugs and signed a sworn af­fi­davit say­ing he lied to avoid the death penalty af­ter his own con­vic­tion.

“The pros­e­cu­tion and my own de­fense at­tor­ney placed me in a po­si­tion in which I felt that I had to chose be­tween falsely tes­ti­fy­ing against Justin or dy­ing,” Bar­ber said in the sworn state­ment.

“Justin does not de­serve to die for some­thing he did not do,” Bar­ber wrote. “I am not an­gry at him any­more and I feel bad about the fact that an in­no­cent man is on death row.”

But five months af­ter that state­ment, he again changed his story and said he had tes­ti­fied truth­fully at the trial.

In Fe­bru­ary 2010, the 4th U.S. Cir­cuit Court of Ap­peals ruled that Mr. Wolfe’s claims of in­no­cence weren’t prop­erly con­sid­ered and he won an ev­i­den­tiary hear­ing in U.S. Dis­trict Court in Novem­ber 2010.

Ja­son Cole­man, Bar­ber’s room­mate, tes­ti­fied in dis­trict court that he spoke with Bar­ber af­ter the killing and that Bar­ber con­ceded he had acted alone. Mr. Cole­man also said that was what he had told prose­cu­tors.

State of­fi­cials main­tain that they were not told, or do not re­call be­ing told, about such a state­ment, and crit­i­cized the dis­trict court for “re­ject[ing] the state of­fi­cials’ tes­ti­mony in fa­vor of ad­mit­ted liars and drug deal­ers.”

In July, U.S. Dis­trict Judge Ray­mond A. Jack­son threw out Mr. Wolfe’s con­vic­tion, cit­ing prose­cu­tors’ use of Bar­ber’s false tes­ti­mony. He also said Mr. Wolfe’s right to due process had been vi­o­lated.

The judge said that re­gard­less of whether the fail­ure to dis­close such an agree­ment was in­ten­tional or un­in­ten­tional it war­ranted over­turn­ing Mr. Wolfe’s con­vic­tion.

The state has ap­pealed the rul­ing to the U.S. Court of Ap­peals for the 4th Cir­cuit to have the death sen­tence and con­vic­tion re­in­stated.

The col­lec­tion of of­fi­cials urg­ing the ap­peals court to af­firm the dis­trict court’s rul­ing in­cludes J. Joseph Cur­ran Jr., who served as at­tor­ney gen­eral of Mary­land from 1987 to 2007 and as the state’s lieu­tenant gov­er­nor from 1983 to 1987; for­mer at­tor­neys gen­eral from Ten­nessee and New Jer­sey, and Ger­ald Ko­gan, the for­mer chief jus­tice of the Supreme Court of Florida.

They re­cently filed a friend-of-the-court brief with the ap­peals court say­ing that, de­spite the fa­vor­able out­come in dis­trict court, the pros­e­cu­tion had sup­pressed key ev­i­dence — that Bar­ber changed his story. They also said that the pros­e­cu­tion failed to dis­close that the po­lice had made an in­for­mal agree­ment with Bar­ber that if he tes­ti­fied against Mr. Wolfe, he could avoid the death penalty.

“Un­der that agree­ment, Bar­ber could avoid the death penalty by im­pli­cat­ing a ‘higher up,’ ” they wrote. “Be­fore Bar­ber ever men­tioned Wolfe’s name, po­lice sug­gested to Bar­ber that Wolfe was the ‘higher up.’ ”

Oral ar­gu­ment for the case has been sched­uled for May 17.

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