Column by Faisal Moghul.
Exclusive to STR
Justin Michael Wolfe, a 19-year old drug dealer in Northern Virginia, was accused of capital murder for hiring his friend and fellow drug dealer, Owen Barber, to kill another drug supplier named Daniel Petrole in March, 2001.
Section 18.2-31(2) of the Virginia Criminal Code defines capital murder as the “willful, deliberate, and premeditated killing of any person by another for hire” (emphasis added). Barber’s testimony provided the only direct evidence of Wolfe’s involvement in the murder-for-hire scheme.
In return for incriminating Wolfe, the prosecution rewarded Barber by dropping the capital murder charge. He was sentenced to 38 years in prison. Wolfe, by contrast, did not fare as well, and was eventually convicted by a Prince William County jury and sentenced to death by the Commonwealth of Virginia in 2002.
The manifest tragedy is that Barber’s testimony was entirely fabricated. He testified during Wolfe’s later evidentiary hearing in Federal District Court that it was made very clear to him that “this is what you have got to say [incriminate Wolfe] or you are getting the chair [6].” Worse still, the prosecution not only suppressed evidence exonerating Wolfe in blatant disregard of his due process rights, but “knowingly” suborned perjury in seeking the death penalty.
Unfortunately, the use of deceptive police interrogation techniques, legal blackmail, and destruction of evidence [7] to ensnare the unwary and innocent has now become the distinctive métier of U.S. law enforcement.
Included in the hundreds of documents the Commonwealth Attorney’s Office “unilaterally deemed irrelevant [6]” and illegally suppressed was a damning report prepared by the police detective involved in the investigation, which details the manner in which he was lured into framing Wolfe. The relevant excerpt states [6]:
I told Barber that we knew he had killed Petrole and had a very strong case against him. But that as far as we knew, he had no personal problem with Daniel Petrole but that he had killed him for someone else and we believed that person was Justin Wolfe. I explained to him that we needed the information that he had in order to arrest Wolfe […] I told him that he was potentially facing a capitol [sic] murder charge in this case and that he needed to help himself.
When pressed by the Federal District Judge to explain the blatant concealment of exculpatory evidence which the prosecution was legally bound [8] to hand over to the defense, the Commonwealth Attorney’s inexplicable response was that he “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 [6].”
Sadly, the statement is symptomatic of a broken system of criminal justice, the leitmotif of which is the use of the law as a tool for legitimizing oppression; a system that privileges conviction rates over the pursuit of justice and search for truth. But if there were ever a statement encapsulating how ethical standards have been debauched by rabid prosecutorial overzealousness, if there were ever a more resounding expression of utter insouciance to moral and legal guilt, then this prosecutor’s response serves as the perfect example.
In a state already notorious for affording criminal defendants very limited discovery rights [9], the prosecutor nevertheless arrogated to himself the right to decide what evidence was fit for disclosure to Wolfe’s defense. Appalled by this blind lust to convict an innocent man, the federal district court rightly condemned these blatant due process violations as “abhorrent to the judicial process.”
Almost a century ago, Justice Sutherland pertinently stressed the prosecutorial duty to ensure that “guilt shall not escape or innocence suffer,” and while he “may strike hard blows, he is not at liberty to strike foul ones [10].” In recognizing the foul blow to Wolfe’s due process and constitutional rights, however, the Federal District Court in the Eastern District of Virginia vacated his murder conviction nine years later, in August 2011, and ordered the Commonwealth to either retry Wolfe within 120 days or release him unconditionally.
Since the days of the Spanish Inquisition when Malleus Maleficarum [11] provided the judicial sanction for persecuting “witches,” to the English Bloody Code [12] that mandated the death penalty for trivial infractions, to Hitler’s Nuremberg Race Laws [13] that cemented Jewish oppression, the recurrent theme of human development has painfully evinced how the majesty of the law has frequently been perverted to serve as the handmaiden of subjugation.
As gatekeepers of the U.S. criminal justice system, prosecutors wield enormous power because the system vests them with virtually unlimited discretion [14] to decide what acts constitute a crime. As the case of John Wolfe demonstrates, however, the lack of any proper accountability mechanisms ensures that prosecutors can get away with virtually anything [15], even murder – literally and figuratively.
Unchecked and unaccountable power in the hands of prosecutors, who have previously displayed an utmost willingness, if not marked eagerness, to transgress any legal restraints in search of their prized conviction poses a grave threat to individual liberties and freedoms – specially, in a society as “overcriminalized [16]” as the United States where, by last count, the federal code contains at least 4,450 crimes [17]. In clarifying this nexus of overcriminalization and prosecutorial misconduct to the House Judiciary Committee, one scholar explains [18] that:
“Placing thousands of vague, overbroad criminal laws in the hands of government officials means that no one is safe from unjust prosecution and punishment. Many of these criminal laws punish conduct that the average person would not guess is prohibited. The body of criminal law thus fails to meet one of the primary requirements of due process: providing individuals with fair notice of what conduct can be punished criminally.”
Juxtapose this reality to the rapid proliferation of criminal laws with no mens rea [19](intent) requirement, and it becomes frighteningly clear that these laws can just as easily be used against you instead of for you. As civil liberties attorney Harvey Silverglate estimates in Three Felonies A Day, the average person unknowingly breaks at least three criminal laws every day. To give an example of the sort of trivialities that can land you in prison, an Oregon man was recently fined and jailed for 30 days for collecting rainwater on his own property [20]!
Criminality is no longer premised on having a “vicious will,” as Sir William Blackstone once stated, but is now determined by the whims of the enforcers. In his classic treatiseThe Common Law, Oliver Wendell Holmes correctly noted in that "a law which punished conduct which would not be blameworthy in the average member of the community would be too severe for that community to bear."
Overcriminalization leaves us all at the mercy of unmitigated, remorseless and unaccountable prosecutorial power that has repeatedly exhibited a no-holds-barred approach to “enforcing the law.” It is simply a matter of the career-driven prosecutor combing the voluminous criminal code to charge you with some obscure crime for conduct that you had no idea was illegal.
Finally, some critics might be averse to the idea of upholding Wolfe’s rights. Some might even argue that he is a petty, drug-dealing criminal, a menace to society, who is not worthy of due process.
But herein one would be remiss not to highlight the oft-quoted exchange between the 16th Century Lord Chancellor of England, Sir Thomas More, and his assistant Roper, who wishes to discard the restraints of the law to better pursue the guilty.
William Roper [21]: So, now you give the Devil the benefit of law!
Sir Thomas More [22]: Yes! What would you do? Cut a great road through the law to get after the Devil?
William Roper [21]: Yes, I'd cut down every law in England to do that!
Sir Thomas More [22]: Oh? And when the last law was down, and the Devil turned 'round on you, where would you hide, Roper, the laws all being flat? This country is planted thick with laws, from coast to coast, Man's laws, not God's! And if you cut them down, and you're just the man to do it, do you really think you could stand upright in the winds that would blow then? Yes, I'd give the Devil benefit of law, for my own safety's sake!
Sir Thomas More [22]: Yes! What would you do? Cut a great road through the law to get after the Devil?
William Roper [21]: Yes, I'd cut down every law in England to do that!
Sir Thomas More [22]: Oh? And when the last law was down, and the Devil turned 'round on you, where would you hide, Roper, the laws all being flat? This country is planted thick with laws, from coast to coast, Man's laws, not God's! And if you cut them down, and you're just the man to do it, do you really think you could stand upright in the winds that would blow then? Yes, I'd give the Devil benefit of law, for my own safety's sake!
We tolerate the hated because someday we might be hated; we tolerate outcasts because someday we might be outcasts; we protect the rights of the weak and persecuted because one day we might be in their shoes and require the law to protect us.
The fundamental maxim of criminal law is that a man is innocent until proven guilty beyond a reasonable doubt. Ipso facto, as it stands, Justin Michael Wolfe, an innocent man, still remains deprived of his liberty at Sussex I State Prison, awaiting the next episode in his Kafkaesque persecution.
