Justin Wolfe and mom Terri Steinberg during a July 2017 prison visit.
“Twenty-four years ago, the Commonwealth decided [Wolfe] was a guilty man. From that moment, [it’s] done everything in its power to ensure [he] dies in prison.”
— U.S. Circuit Court Judge Stephanie Thacker
Chantilly High grad Justin Wolfe has spent the past 24 years in prison – 13 of them on death row – for a crime he always said he didn’t do. Now, three judges with the U.S. Court of Appeals for the Fourth Circuit say his prosecution was biased, vengeful and tainted with misconduct.
Toward that end, they’ve vacated a lower court’s denial of Wolfe’s most recent legal challenge to his imprisonment and ordered he receive a new hearing based on his claims of innocence. The July 7 decision came from Judges Robert King, Stephanie Thacker and Nicole Berner, with Thacker writing the opinion.
“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,’” wrote Thacker. “Twenty-four years ago, the Commonwealth decided [Wolfe] was a guilty man. From that moment, [it’s] done everything in its power to ensure [he] dies in prison, eschewing the Constitution, ethical strictures and [Wolfe’s] own repeated and consistent assertions of actual innocence.”
In May, the U.S. District Court for the Eastern District of Virginia denied Wolfe’s petition for a “writ of habeas corpus” challenging the validity of his conviction and stating that his detention was unlawful. It declared he hadn’t provided “new, reliable evidence” in support of his Schlup claim of actual innocence. But, wrote Thacker, “We conclude otherwise.”
The 1995 Supreme Court decision in Schlup v. Delo made it possible for convicted prisoners to have their cases reheard if they later allege an adequate claim of real innocence. Wolfe had been convicted of hiring Owen Barber to kill Centreville’s Danny Petrole in 2001 (see background sidebar).
From the start, Barber – who indeed killed Petrole – was threatened with the death penalty by police and prosecutors in Prince William County, where the murder occurred, if he didn’t say Wolfe hired him. And at Wolfe’s 2002 trial, Barber testified accordingly.
Then during a 2010 hearing in federal court in Norfolk, Barber recanted that testimony under oath. Yet, again coerced prior to Wolfe’s 2016 retrial, Barber agreed to plead the Fifth. Then in 2023, he wrote a statement saying Wolfe had nothing to do with Petrole’s murder.
Now, the Fourth Circuit has ruled that Barber’s latest declaration “constitutes new evidence because it rendered Barber available” to Wolfe as a witness who could testify to Wolfe’s innocence, “when Barber had previously been unavailable, pursuant to his invocation of his Fifth Amendment privilege.
“And Barber's declaration is reliable evidence because it was consistent with Barber’s prior credible testimony [exonerating Wolfe]. Therefore, as detailed below, we vacate the district court’s judgment and remand for adjudication of [Wolfe’s] substantive claims.”
Presenting the background of Wolfe’s case, Thacker said a January 2002 jury convicted him of murder for hire, dealing drugs and using a firearm. Wolfe was sentenced to death, plus 33 years in prison. That July, he requested a stay of execution and, that November, he filed a habeas petition. He then obtained an affidavit from Barber repudiating his trial testimony and exonerating Wolfe from the murder-for-hire scheme.
Wolfe also secured affidavits from two of Barber’s former roommates. Centreville’s Jason Coleman stated he’d “told prosecutors Barber had confessed to [him] that [he’d] acted alone in Petrole’s murder,” wrote Thacker. And a former cellmate, Carl Huff, stated that Barber “had admitted [to him] that [Wolfe] was in no way involved in Petrole’s shooting and that Barber had testified falsely at [Wolfe’s] trial.”
According to Barber’s affidavit, wrote Thacker, “The officers who initially interviewed Barber [after his arrest] threatened him with the death penalty if he didn’t cooperate in [Wolfe’s] prosecution. Per Barber, ‘On the flight back to Virginia from California, the officers accompanying Barber told [him] they already knew [Wolfe] had hired [Barber] to kill Petrole and that one of [them] would tell the story and the other would end up with capital murder.’
“[Then] in jail, Det. Sam Newsome and Det. Brenda Walburn repeatedly told [Barber] they and the prosecutors had linked [his] gun to the killing and would pursue capital murder against either [Wolfe] or [him]. According to Barber, they were entirely focused on [Wolfe] as a suspect. And Barber’s attorney warned him, if he didn’t implicate [Wolfe], prosecutors would [make sure Barber received] the death penalty.”
Barber said he testified against Wolfe because the officers had had ‘made it clear it was either do this or die,’” wrote Thacker. “Accordingly, he ‘made up a story with lies woven in [about] a murder for hire [because it was what] the prosecutors wanted to hear.’” In his affidavit, Barber said he was now telling the truth because Wolfe “did not deserve to die for something he did not do.”
Based on these affidavits, in December 2005, Wolfe made a Schlup claim of innocence. And he contended that the commonwealth also colluded with another witness, J.R. Matin, to present false evidence to the jury.
Thacker explained that Martin was a close friend of Barber and “provided him with a car to use on the night of [Petrole’s] murder. At [Wolfe’s] trial, Martin corroborated Barber's testimony that Barber and [Wolfe] had private conversations before and after the murder. Martin also said it was ‘obvious’ that [Barber] killed Petrole at [Wolfe’s] instruction.”
But, wrote Thacker, “The commonwealth had coordinated Martin’s testimony in a joint meeting with Barber, Martin and the prosecutors, without disclosing that meeting to [Wolfe’s] trial counsel. Further, [his] counsel was unable to effectively impeach Martin’s testimony [at trial] because the [commonwealth] withheld an off-the-record agreement not to prosecute Martin [for his involvement in Petrole's murder] if he cooperated with the commonwealth.”
Still, in February 2008, the district court dismissed Wolfe’s petition. He appealed that decision, and the Fourth Circuit Court vacated that court’s judgment for failing to consider Wolfe’s claim of innocence. It also instructed the district court to determine whether Wolfe was entitled to an evidentiary hearing and other evidentiary discovery.
That led to the commonwealth producing “a plethora of previously undisclosed material evidence,” wrote Thacker. “It included the fact that Barber possessed [his own] potential motives for murdering Petrole, plus evidence which could have allowed Wolfe to present possible alternate motives for Petrole’s murder [by others. For example], reports and witness statements relating to a parallel drug investigation indicating conflict in Petrole’s drug business, evidence that Petrole was rumored to be a government informant, and the statements of three witnesses that they saw a second car at the crime scene shortly after [the shooting].”
“This listing represents only a snapshot of the commonwealth's decades long misconduct in its prosecution of [Wolfe],” continued Thacker. “The court subsequently held an evidentiary hearing, wherein Barber credibly recanted his trial testimony and indicated that [Wolfe] wasn’t involved in Petrole’s murder. On Sept. 7, 2012, the court then ordered the commonwealth to retry him within 120 days or release him unconditionally.”
However, wrote Thacker, “Incredibly, just four days later, on Sept. 11, Det. Newsome and [Prince William] prosecutors Richard Conway and Paul Ebert
visited Barber in prison,” and again threatened him with the death penalty if he changed his original testimony in a new trial and said Wolfe was innocent. “Ebert directly threatened Barber, ‘We would bring the charge against you, capital murder.’” Accordingly, Barber’s attorney advised him to plead the Fifth, thus rendering him useless to Wolfe’s defense.
Conway and Ebert then recused themselves from the case, and Fairfax County Commonwealth’s Attorney Ray Morrogh prosecuted Wolfe in Prince William as relentlessly as his predecessors. He levied additional charges against Wolfe, including felony murder and engaging in a continuous criminal enterprise. And once again, Wolfe faced the death penalty – all the while proclaiming his innocence.
However, justice moved slowly. With a slew of pre-trial motions, several changes in defense attorneys and a failed attempt at a Supreme Court hearing, the case dragged on for years with no end in sight – until, on March 19, 2016, Wolfe wrote a letter seemingly “confessing” to the murder for hire.
His attorneys made a plea deal with the prosecution, taking the death penalty off the table. Wolfe then pleaded guilty to first-degree murder, use of a firearm in the commission of a felony and conspiracy to distribute marijuana. And that July 20, he was sentenced to 41 years in prison. But his friends and relatives always maintained that, after all his legal setbacks, he only wrote that letter so he’d someday be released from prison.
Then on April 12, 2023, Barber signed a new declaration stating Wolfe had nothing to do with Petrole’s murder. He said he knew his statement wouldn’t benefit him in any way, but that Wolfe had “served a lot of time for a crime he did not commit” and if he’d been able to freely testify in Wolfe’s favor at his retrial, he would have.
Wolfe again legally asserted a claim of innocence, but the district court rejected it, considering Barber unreliable and saying his statement didn’t contain new information about Petrole’s murder. However, Thacker disagreed, explaining that it “converted Barber from a [previously] unavailable witness” who’d invoked the Fifth Amendment, into one who was now willing to declare Wolfe innocent.
“[Barber] is an imprisoned man who has struggled for decades between telling the truth and preserving his own life,” wrote Thacker. “We cannot condone the commonwealth’s conduct in creating this dichotomy. We must take [its] coercive acts, which were abhorrent to the judicial process, into account when considering Barber’s reliability.”
Thacker further noted the commonwealth’s “vindictive prosecution” during Wolfe’s re-trial, with six new charges, plus capital murder, and Newsome, Conway, and Ebert’s threats to Barber that effectively silenced him from testifying to Wolfe’s innocence. If all these things had been brought to light, said Thacker, “No reasonable juror would have found [Wolfe] guilty beyond a reasonable doubt.
“For the foregoing reasons, we hold that Appellant (Wolfe) has alleged a meritorious Schlup claim for actual innocence. Therefore, we vacate the district court’s judgment and remand for adjudication of Appellant’s substantive claims.” This decision now paves the way for either Wolfe’s retrial or his release from prison.
“We’re profoundly grateful for this important ruling in Justin’s case, which recognizes what we’ve known all along – Justin is innocent,” said Wolfe’s mother, Terri Steinberg. “We’re hopeful and cautiously optimistic that Justin is one step closer to finally coming home to us.”
Meanwhile, in a Facebook post, family friend Bob Lessemun placed the blame for Wolfe’s long incarceration squarely on those who colluded against him. “Shame on those prosecutors for their deal making and their suppressing the evidence,” he said. “It’s time for the truth to be told.”