May 22, 2013 4th Circuit published opinion

Wolfe v Clarke

Wolfe obtained habeas relief based on a Brady violation. The district court found that Virginia had failed to unconditionally release Wolfe or complete his retrial as ordered. It also found that an interview with a key prosecution witness violated Wolfe’s rights to a fair trial and banned retrial on the underlying murder for hire charges. The panel, with one judge dissenting in part, affirmed in part and remanded for entry of a different relief order. The panel unanimously held that Virginia’s claim to have both released and retried Wolfe was incorrect as the order was disjunctive. It also held that the district court did not abuse its discretion is finding that Wolfe had not been unconditionally released and there has not been a trail to jury verdict. The majority emphasized that Virginia failed to take any steps to protect its retrial rights and thus had no basis to complain that it only had 36 days to get eth trial done. As tot eh relief order, the majority held it was an abuse of discretion to bar retrial as the potential violations were before the state court, would be moot if Wolfe was acquitted and can be remedied on appeal or federal habeas review. Thus, the majority remanded for a new relief order ordering unconditional relief and the conviction expunged and its legal effects nullified. The dissent argued that given the extensive history of Brady and other constitutional violations by the prosecution in this case, threatening the key witness with a capital charge thus intimidating him into invoking his Fifth Amendment privilege justified the retrial ban. The dissent would thus follow other courts which have gone beyond violations which cannot be remedied to take into account the facts of the individual case. Given the invocation of God and the witness’ dying mother during the threatening interview and the suspect timing of the original prosecution team’s recusal motion, equity fully supports a ban on retrial here.

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