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Criminal Procedure – Murder — Brady Error — New Trial

Criminal Procedure – Murder — Brady Error — New Trial

Wolfe v. Clarke (Lawyers Weekly No. 12-01-0891, 40 pp.) (King, J.) No. 11-6, Aug. 16, 2012; USDC at Norfolk, Va. (Jackson, J.) 4th Cir.

Holding: A defendant convicted of murder-for-hire has shown that state prosecutors violated Brady v. Maryland when they intentionally withheld a detective’s report about conversation with the chief prosecution witness who said defendant asked him to commit the murder, and the 4th Circuit grants defendant’s § 2254 petition in this murder-for-hire case.

This matter was previously before us on appeal by 28 U.S.C. § 2254 petitioner Justin Wolfe, who was convicted of capital murder and sentenced to death by the commonwealth in 2002, and we remanded for further proceedings.

On remand, the district court heeded our Wolfe I mandate, authorized appropriate discovery and conducted an evidentiary hearing, and ruled in Wolfe’s favor on the issue under Schlup v. Delo, 513 U.S. 298 (1995), and his Brady and two additional claims. By its Aug. 30, 2011 judgment, the court vacated Wolfe’s capital murder and other convictions, and ordered the commonwealth to either retry him within 120 days or release him unconditionally from custody. The judgment was stayed pending this appeal by the commonwealth. The commonwealth challenges the remand proceedings from start to finish, contending the district court repeatedly and fatally erred in its procedural and substantive rulings. Because we readily conclude, however, that the court’s award of habeas corpus relief on Wolfe’s Brady claim was not marred by any error, we affirm the judgment.

We need look no further than one item of the first category of evidence withheld from Wolfe’s defense by the prosecution – the evidence tending to impeach Owen Barber IV, the drug dealer allegedly hired by Wolfe to commit murder – to agree with the district court that Wolfe deserves habeas corpus relief on his Brady claim and affirm the judgment. We need not review any issues of substance or procedure related solely to the other withheld evidence underlying Wolfe’s Brady claim, or to his Giglio, Sanders and venireman claims.

The single, plainly momentous item of suppressed Barber impeachment evidence on which we rest today’s decision is a written police report reflecting that — before Barber ever asserted that Wolfe hired him to murder the victim — Prince William County Detective Newsome advised Barber that he could avoid the death penalty by implicating Wolfe. The commonwealth inexplicably withheld the Newsome report from Wolfe until these 28 U.S.C. § 2254 proceedings in 2010, after Wolfe’s first appeal and during the contentious discovery proceedings conducted in the Wolfe I remand.

We feel compelled to acknowledge that the commonwealth’s suppression of the Newsome report, as well as other apparent Brady materials, was entirely intentional. During Wolfe’s evidentiary hearing in the district court, the commonwealth’s attorney explained that his office does not have an “open-file policy,” providing criminal defense counsel access to entire case files. Asked to elaborate, he offered the flabbergasting explanation that he has “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.”

Because the commonwealth concedes that Wolfe’s trial testimony was central to his drug conspiracy conviction and sentence, and because the commonwealth cannot prove that Wolfe would have testified if the Newsome report had not been suppressed, we agree with the district court that Wolfe is entitled to vacatur of all three of his state convictions.

As the district court’s judgment reflects, the commonwealth is free to retry Wolfe on the murder, firearm, and drug conspiracy charges.


Duncan, dissenting in part: I write with regard and appreciation for the majority’s disposition of Wolfe’s murder-for-hire and firearm convictions. I must, however, respectfully and narrowly dissent from its granting of habeas relief on the drug conspiracy conviction. The record, and, significantly, the majority does not directly refute it, contains ample evidence from sources other than Wolfe’s testimony to support the drug conviction. The district court’s relief order does not address the merits of the drug conspiracy issue at all, and the case on which it purports to rely is inapposite as to that charge.

I fully recognize and appreciate the focus of the district court and the majority on the more serious charges. And, indeed, the commonwealth did not, in its argument, greatly aid our analysis. The commonwealth’s behavior here is far from exemplary. But the Newsome report cannot carry the weight the majority would assign to it. Because of the amount of evidence as to the drug conspiracy untainted by the Brady violation, I would at the very least remand that conviction to the district court for its specific consideration.

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