Another Chance for the Justices to Say No to Prosecutorial Misconduct

Virginia prosecutors hid exculpatory evidence and defied a federal judge in a death-penalty case. Will the Supreme Court let them get away with it?
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Sonia Sotomayor, one of only two current members of the Supreme Court with experience as a prosecutor, should take Wolfe v. Clarke seriously. (Jason Reed/Reuters)

Justice Sonia Sotomayor is one of only two* current members of the United States Supreme Court with experience as a prosecutor and she has often said, even as recently as a few weeks ago, that this background pushes her to expect more and better from the prosecutors whose hands are forever dirtied by the cases they handle. If she is serious about this, she will able to demonstrate it Friday morning when she meets in private conference with her colleagues to discuss a Virginia case the Court has been asked to accept for review.

Wolfe v. Clarke is about a murder conviction and death sentence that unraveled under the force of the truth. It is a case about state prosecutors getting caught hiding exculpatory evidence, and getting scolded for it by the federal courts, and then violating the federal court order sanctioning them by threatening a witness and spoiling the retrial of a man they helped to wrongly convict. It is a case where prosecutors did all of this, right up to the brief they filed with the justices, without an evident shred of public contrition for their improper conduct.

All of this makes me think one of two things will likely happen to Wolfe v. Clarke. Either at least four justices will agree that the prosecutorial misconduct that occurred here is so egregious that it merits review, in which case we’ll get an oral argument later this year and a ruling sometime after that. Or the Court will turn its back on this case and we will get a pointed dissent from the denial of certiorari from Justice Sotomayor in which she laments the Court's continuing abdication of its role as guardian of Sixth Amendment rights.

There is a simple factual narrative about the case—about what state prosecutors were willing to do first to gain and then to regain a murder conviction against Justin Michael Wolfe. And there is a more complex legal narrative about the standards the federal courts ought to apply when prosecutors behave as badly as they have in this instance. But don’t be fooled by the distinctions: If the Supreme Court lets Virginia get away with what has been done to Wolfe, the fair-trial rights of all of us will be jeopardized.

Commonwealth v. Wolfe

On March 15, 2001, Daniel Petrole was shot and killed outside of a townhome he owned in Northern Virginia. The police promptly arrested Owen Barber as the suspected shooter. But there was a twist. The police also were convinced that Barber had been hired to kill by Justin Michael Wolfe. One detective told Barber about this theory and suggested to the suspect that the commonwealth might "entertain the idea of not charging him" with the death-penalty-eligible crime if he incriminated Wolfe. This exchange was memorialized in a written police record that prosecutors never disclosed to the defense at Wolfe's trial.

There was more. State officials also withheld from Wolfe's defense team evidence that Barber and Petrole had a contentious history with one another, that Petrole had a "hit" out on Barber at the time of Petrole's death, and that Barber's roommate had told prosecutors that Barber had told him that he had acted alone. All of this evidence was manifestly exculpatory because it would have helped the defense impeach Barber's credibility. Under the constitutional principles set forth in Brady v. Maryland, known as the "Brady Rule," state prosecutors had an absolute duty to share this information with Wolfe.

Faced with the choice between a death sentence and incriminating someone else, Barber did what a lot of people in his position do: He caved. He made the deal. The only direct witness against Wolfe, he delivered for the commonwealth the conviction and death sentence they had sought against Wolfe. He was the star witness—the murderer telling jurors that he had been commissioned to commit murder. Wolfe's state appeals went nowhere. He was scheduled for execution. But then, from prison, Barber recanted. And after years of legal tumult, a federal judge took his recantation seriously enough to hold an evidentiary hearing.

This hearing took place in November 2011—approximately nine years after Wolfe's conviction and sentencing. Barber told the judge that he had lied at the trial and that Wolfe had no role in the murder of Petrole. Of the prosecutors, Barber said: "[T]hey said they wanted the truth, but at the same time they said that this is what you have got to say or you are getting the chair." At this hearing, state officials conceded that they did not always disclose exculpatory evidence to defense counsel. They "choreographed and coordinated witness testimony through a series of joint meetings," the judge concluded.

The Courts Respond

U.S. District Judge Raymond A. Jackson, a former Army captain and federal prosecutor, was the trial judge who presided over this hearing. His amended order of July 26, 2011, in which he granted Wolfe relief, is worth reading today for a sense of just how far these prosecutors diverged from standards of professional conduct. They didn't just hide material evidence from Wolfe. They didn't just tamper with witness testimony. They then sought to hide their misdeeds by arguing, over and over again, that it was everyone else who was lying under oath. That the only credible story was the one they were spinning.

To Jackson, this was not a close call. Prosecutors had evidence from many different sources, including the police, that undermined the credibility and reliability of the lone direct witness against Wolfe and they shared none of it with the defense. Citing Brady, the judge vacated all of the convictions against Wolfe and ordered Virginia to retry him, if it chose to do so, within 120 days. Virginia did not accept this verdict or take responsibility for the pattern of misconduct the judge chronicled in his order. Instead, it appealed Jackson's order.  

The Fourth U.S. Circuit Court of Appeals, among the most conservative in the nation, upheld Jackson's ruling, writing that the trial judge had "rightly lambasted" prosecutors for conduct that was "abhorrent to the judicial process." It was not the first time this court had chastised these prosecutors for illegally withholding evidence. The Fourth Circuit used the word "flabbergasted" to describe its reaction to the concession by Virginia's prosecutors that they routinely violated their constitutional obligations under Brady by keeping exculpatory away from defendants.

Let's pause here for a moment. If this were all this case were about, if this were the moment at which prosecutors began to dutifully comply with their legal and constitutional obligations, we'd have what amounts to a run-of-the-mill Brady case where prosecutors cheat, get caught, get punished, and promise to do better next time. These cases happen far too often, and the courts have done too little to prevent it, and a great many cases of such misconduct go unnoticed. But from here things got worse in this case. Virginia, unrepentant, still refused to follow the law or the courts' commands—and so state officials again went after Barber.

Virginia v. Barber, Round II

Virginia went after him again to get him to recant his recantation—and to again incriminate the man he said he had falsely incriminated more than a decade earlier. Prosecutors did this even after two federal courts had sanctioned them for their handling of Barber the first time around. Only this time, Barber, older and wiser, didn't cave. Instead, he found himself a lawyer, who promptly told state officials that Barber was going to exercise his Fifth Amendment right against self-incrimination. If Virginia were going to retry Wolfe, Barber's attorney told prosecutors, they would have to do so without his client.

But this didn't stop prosecutors either. First, they promised Barber immunity from prosecution so long as he testified "truthfully." As Wolfe's lawyers quickly pointed out, however, the state's version of the truth is different from Barber's version of the truth. If Barber testifies truthfully from his perspective, that is to say if he exonerates Wolfe, Virginia is poised to prosecute him for perjury. And if Barber testifies truthfully from the perspective of the state, that is to say he incriminates Wolfe, he will perjure himself for real. The Constitution, the defense lawyers say here, doesn't require someone to make that awful choice.

In the alternative, Virginia proposed, if Barber himself were unavailable to testify in person against Wolfe, state prosecutors would simply read jurors the transcript of Barber's initial testimony at Wolfe's original trial. Barber would incriminate Wolfe all over again, at least on paper, and defense attorneys would be precluded from informing jurors that Barber himself no longer stood behind those words. This, the defense attorneys reminded the courts, would obviously violate Wolfe's Fifth Amendment right to confront his accuser. The dispute thus found its way back into the laps of the courts.

Jackson was furious. Not only had prosecutors failed to retry Wolfe within the 120-day limit but Virginia had "incurably" ruined his chance for a fair retrial by precluding him from calling Barber as a defense witness. The Fourth Circuit agreed that prosecutors again had again failed to meet their obligations but refused to block a retrial. The appeals court thus embraced a restrictive approach, in conflict with those taken by other appellate courts, and that's the essential question now before the Supreme Court: How badly may prosecutors act before their actions precluded them from retrying a capital suspect?

The Stakes

More than anyone else on the Supreme Court, Sotomayor understands both the pressures and the obligations of being a prosecutor. For more than four years she worked as an assistant district attorney for one of the nation's busiest—and most honored—prosecutors, New York County District Attorney Robert Morgenthau. And I can't help but think that she became increasingly dismayed as she read through the briefs here, not just because of what they say about the prosecutors but for what they say about the tangle of procedural rules that judges have constructed to permit state officials to do what they've done here.

This should not be a close case. The prosecutorial misconduct here is so obvious, and so continuous, that the courts long ago should have precluded a retrial as a sanction against the state. To do otherwise, as the Fourth Circuit suggests, is to tell prosecutors everywhere that defendants like Wolfe have no meaningful constitutional protection—rights without remedies. And for what? If Wolfe is retried, in these circumstances, the whole gang will be back in federal court three years from now fighting over how badly his constitutional rights were violated by Virginia's insistence upon using Barber's transcript testimony.

Sotomayor is not always shy in expressing her disgust with the hands-off approach the Roberts Court often takes in these criminal procedure cases. Last November, for example, she dissented from the denial of certiorari in an Alabama case involving an elected judge who overrode a jury's verdict to impose a death sentence against a man the jury had recommended a life in prison without parole. Her dissent sparked a needed national debate over the role of elected judges in capital cases—which of course was her point. Maybe one day, because of this debate, Alabama will change its unfair rule.

And last month, notably, Sotomayor expressed herself again in a certiorari dissent in a case involving a federal prosecutor in Texas who made racially charged remarks to a jury. Unable to persuade her colleagues to care more about these troubling cases and unlike her colleagues in that she understands the pressures that push prosecutors to cheat, she is unafraid to use these dissents as bully-pulpit moments—to shed light on misconduct even if she cannot herself change it. The question this week is whether enough of her colleagues will join her this time to bring any relief to Justin Wolfe.

__________

* As an early reader pointed out, Justice Samuel Alito is the other member of the Court who served as a prosecutor. But his view of these cases, especially in the context of the death penalty, is almost diametrically opposed to that of Justice Sotomayor. It will be fascinating to see how he reacts to the facts of this case and how far the gulf is between his take on this case and the take we can expect from Justice Sotomayor.

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Andrew Cohen is a contributing editor at The Atlantic. He is a legal analyst for 60 Minutes and CBS Radio News, and a fellow at the Brennan Center for Justice.

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