McLEAN, Va. (AP) - A former death row inmate in Virginia whose conviction was overturned on accusations of misconduct by prosecutors is petitioning a judge for his immediate release.
Lawyers for Justin Wolfe filed the motion Friday in U.S. District Court in Norfolk. They argue that Virginia prosecutors have waited too long to retry Wolfe on charges that he orchestrated a murder for hire as part of his drug-dealing enterprise.
Wolfe was convicted in 2002 and sent to death row. But a federal judge overturned the conviction, ruling that Prince William County prosecutors hid evidence that would have undermined their case.
The judge gave state prosecutors 120 days to either retry Wolfe or grant his unconditional release. Wolfe's lawyers say that time is up.
Wolfe's retrial is currently scheduled to begin in January. Circuit Court Judge Mary Grace O'Brien set the Jan. 2 trial date at the request of special prosecutor Ray Morrogh, who sought additional time to put his case together. He argued that the 120-day clock set by the federal judge did not start until September, when the 4th U.S. Circuit Court of Appeals issued its mandate sending the case back to state court.
Wolfe's lawyers say the clock began earlier, when the district court judge first issued his order.
A spokesman for Virginia Attorney General Ken Cuccinelli, whose office defends the state in the federal proceedings, did not respond to an email seeking comment Monday.
The motion puts the case in front of U.S. District Judge Raymond Jackson for the first time since state prosecutors decided to retry it.
Paul Ebert, the Prince William County Commonwealth's Attorney who first tried Wolfe, recused himself from the case and had himself replaced with Morrogh, the Fairfax County commonwealth's attorney, who quickly decided that Wolfe should be retried on capital murder charges. Morrogh said in open court shortly after taking the case that "Wolfe was absolutely involved in this murder and planned it and caused it to occur and he did it out of greed. ... Justin Wolfe is many things but innocent is not one of them."
Morrogh's decision disappointed Wolfe's supporters, who felt that Morrogh ignored the findings of Jackson that cast serious doubt on the case against Wolfe. They tried unsuccessfully to get Morrogh removed from the case.
Jackson vacated Wolfe's conviction after determining that Ebert - Virginia's longest-serving prosecutor who has put more men on Virginia's death row than any other commonwealth's attorney - withheld evidence that would have discredited their key witness, triggerman Owen Barber IV. Barber recanted his testimony implicating Wolfe at a hearing held in front of Judge Jackson. In his most recent court appearance, Barber declined to offer any testimony, invoking his Fifth Amendment right against self-incrimination.
A hearing date on Wolfe's motion has not yet been scheduled.