MANASSAS, Va. (AP/ABC 7) - A Virginia judge has ordered the defendant in a capital murder case to be unconditionally released from custody as of Thursday at 5 p.m. unless a federal appeals court intervenes.
Justin Wolfe has twice been charged with capital murder for the 2001 slaying of a northern Virginia drug dealer. And twice a federal judge has ordered the charges tossed out for alleged misconduct by Prince William County prosecutors.
The most recent order came from Judge Raymond Jackson in Norfolk on Christmas Eve and requires Wolfe's release by Jan. 3.
At a hearing Wednesday in Manassas, Circuit Judge Mary Grace O'Brien said she will abide by that ruling and release Wolfe on Thursday unless an appellate court intervenes.
Virginia's attorney general's office is asking the federal appeals court in Richmond to halt Wolfe's release.
Jackson, in his Christmas Eve ruling, said the prosecution of Wolfe is now irrevocably tainted by prosecutors' misconduct. Specifically, he alleges that prosecutors coerced false testimony from their star witness, Owen Barber, and withheld from the defense evidence that would have undermined Barber's credibility.
Jackson said prosecutors compounded the error by making a jailhouse visit to Barber in September and making thinly veiled threats against him if he wavered from his initial testimony implicating Wolfe.
Barber testified at Wolfe's original trial in 2002 that Wolfe hired him to shoot and kill Daniel Petrole to get out from a debt that Wolfe owed Petrole. Barber's testimony came as part of a plea bargain that spared him the death penalty. Wolfe was convicted and sent to death row.
In recent years, though, Barber has flip-flopped his testimony several times. His most recent testimony, in Jackson's Norfolk courtroom, was that he falsely implicated Wolfe because prosecutors told him that was the only way he could get a plea deal.
Special prosecutor Ray Morrogh, who took over the case after Prince William County Commonwealth's Attorney Paul Ebert recused himself in September, said Wednesday that he has no doubt that Barber's initial testimony implicating Wolfe was the truth. Morrogh said Barber was badgered for years by Wolfe's appellate lawyers and opponents of the death penalty to change his story. And Morrogh said he has hard evidence showing that aspects of Barber's testimony to the federal judge was a lie, including cellphone records that contradict Barber's testimony about the locations of key players in the slaying.
"As someone who's read every scrap of evidence in this case ... they've got the facts wrong over there" in Norfolk, Morrogh said Wednesday. "I'm sorry to say it, but they're wrong."
Wolfe's attorney, Kimberly Irving, countered that it doesn't matter if Morrogh disagrees with Jackson - the judge's ruling ordering Wolfe's release and dismissal of the charges against him is still valid and binding.
Another attorney for Wolfe, Edward MacMahon, said that after a decade of legal wrangling, the state should drop its case and accept the fact that Wolfe is innocent.
"This isn't a gift to him or some technicality," MacMahon said.
Meanwhile, for Terri Steinberg, everyday her son has been in prison has been a difficult one.
"This is something we've been hoping for for a long time," Steinberg said. "I don't know if I'm surprised. I'm more grateful that it's finally…maybe finally…over."
If Wolfe is released Thursday afternoon, it isn't entirely clear what happens next. Wolfe's lawyers said that the order will not only release Wolfe from custody, but also result in all charges being dismissed. Under the defense theory, prosecutors would also be barred from filing any new charges.
Morrogh, though, said he expected O'Brien's order would only encompass whether Wolfe should remain in custody. He argued at Wednesday's hearing that certain charges could still be brought against Wolfe even if Judge Jackson's order remains in effect.
Steinberg was hopeful after Wednesday's hearing.
"I don't know if it's real yet," she said through tears. "We've got to wait until tomorrow at 5 p.m."