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.