Virginia Lawyers Weekly

MANASSAS, Va. (AP) — Defense attorneys on Wednesday accused prosecutors in Fairfax and Prince William counties of bias in their efforts to retry a former death-row inmate whose conviction and sentence were overturned by a federal court.

Attorneys for Justin Wolfe sought to put on evidence at an acrimonious hearing in Prince William Circuit Court to have special prosecutor Ray Morrogh disqualified from the case.

The defense alleges that Morrogh, the commonwealth’s attorney in Fairfax County, is essentially in cahoots with Prince William County Commonwealth’s Attorney Paul Ebert, who first convicted Wolfe. Morrogh and Ebert are friends who have collaborated on cases before, including the 2003 prosecutions of the D.C. snipers, John Allen Muhammad and Lee Boyd Malvo.

Ebert recused himself from Wolfe’s retrial when the federal court that overturned the conviction accused Ebert of prosecutorial misconduct. Ebert successfully petitioned the judge to have Morrogh named as his replacement.

The defense alleges that Morrogh’s friendship with Ebert calls into question whether Morrogh would confront the accusations of impropriety against Ebert, who was accused by a federal judge of deliberately withholding evidence of Wolfe’s innocence. The defense has claimed that Morrogh’s overriding interest will be to vindicate his friend at any cost by obtaining another capital conviction.

Morrogh said there is no evidence that his independence has been compromised and bristled at the attacks on his integrity, calling those unfounded. There was sniping among attorneys throughout Wednesday’s day-long hearing, culminating with one of Wolfe’s attorneys, Edward Ungvarsky, mouthing an obscenity at Morrogh at the end of the hearing.

During Wednesday’s hearing, Circuit Judge Mary Grace O’Brien ruled that most of the evidence the defense wanted to present was irrelevant. She said she will decide on Monday on whether Morrogh can stay on the case.

A federal appeals court earlier this year upheld a judge’s decision to toss out Wolfe’s conviction and death sentence in the slaying of his marijuana supplier, Daniel Petrole, in a 2001 case that exposed the workings of an elaborate drug ring in wealthy northern Virginia. The court ruled that prosecutors wrongly withheld evidence from Wolfe’s attorneys that discredited the government’s star witness — triggerman Owen Barber IV. who later recanted his testimony that Wolfe was involved in Petrole’s killing.

Defense attorneys sought to put Barber on the stand at Wednesday’s hearing but Barber refused to testify, invoking his Fifth Amendment right against self-incrimination.

-By Matthew Barakat