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Friday, July 29, 2011

A Washington Post editorial of July 28, 2011, on the Justin Wolfe case:

A deserved rebuke in Prince William murder case

By Editorial, Published: July 28

PAUL B. EBERT has earned a reputation as a tough but fair prosecutor over his four- decade career as Prince William County commonwealth’s attorney. But something apparently went terribly wrong with Mr. Ebert’s handling of the case of Justin Michael Wolfe.
Mr. Wolfe is an admitted marijuana dealer in Northern Virginia who was sentenced to death in 2002 for ordering the murder of a drug associate. In a detailed, 57-page opinion handed down on July 12, Judge Raymond A. Jackson of the U.S. District Court for the Eastern District of Virginia excoriated Mr. Ebert and his office for multiple infractions that he says prevented Mr. Wolfe from refuting the murder charges.
Judge Jackson noted that Mr. Ebert and his office withheld from the defense information about others who may have had motive to target the victim. Mr. Ebert and his colleagues also brought together prosecution witnesses and allowed them to smooth over inconsistencies in their testimony. The prosecutors failed on multiple occasions to live up to their obligations to disclose to the defense that government witnesses had contradicted each other or had changed their stories.
These failures were discovered only after Mr. Wolfe’s lawyers from King & Spalding, the University of Virginia’s Innocence Project Clinic and the Virginia Capital Representation Resources Center persuaded a court to force Mr. Ebert and his office to turn over all of their files.
The actions by Mr. Ebert and his office were so egregious that Judge Jackson threw out the murder conviction and death sentence against Mr. Wolfe. And he concluded that Mr. Ebert and a top deputy, Richard A. Conway, violated Virginia legal ethics rules that require prosecutors to “make timely disclosure” of evidence “that tends to negate the guilt of the accused, mitigate the degree of the offense, or reduce the punishment.”
During a hearing before Judge Jackson, Mr. Ebert was asked why his office did not have open-file discovery, which requires prosecutors to turn over to the defense all of the evidence gathered during an investigation. “I have found in the past when you have information that is given to certain counsel and certain defendants, they are able to fabricate a defense around what is provided,” Mr. Ebert responded.
Fabricate? The judge in this instance rightly took Mr. Ebert to task. “Essentially, in an effort to ensure that no defense would be ‘fabricated,’ [Mr. Ebert and Mr. Conway’s] actions served to deprive [Mr. Wolfe] of any substantive defense in a case where his life would rest on the jury’s verdict,” Judge Jackson wrote. “The Court finds these actions not only unconstitutional in regards to due process, but abhorrent to the judicial process.” The Virginia State Bar, which polices lawyers in the state, should determine whether Mr. Ebert and Mr. Conway committed violations that require disciplinary action.
Virginia plans to appeal Judge Jackson’s ruling. But rather than merely fight an adverse decision, Attorney General Ken Cuccinelli II should assess whether there is a problem with how Mr. Ebert and his office apply the legally mandated requirement to turn over exculpatory material.

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