I repeat the words of our Supreme Court, “It is as much [a prosecutor’s] duty to refrain from improper methods calculated to produce a wrongful conviction as it is to use every legitimate means to bring about a just one.” Berger v. United States, 295 U.S. 78, 88 (1935). Even Detective Newsome [working under the in-person direction of Paul Ebert] recognized that the Commonwealth “ha[s] an obligation to respect the Courts, to respect the process and to do what’s right.” J.A. 331. If only the Commonwealth practiced what it preached.
United States Circuit Court Judge Stephanie Dawn Thacker for the United States Court of Appeals for the Fourth Circuit May 22, 2013. (Obama appointee).
Judge Thacker was speaking of the misconduct of Prince William Commonwealth’s Attorney of 47 years, Paul Ebert, and his direct actions in the prosecution of Justin Wolfe. High profile prosecutions or not, assisting victims or not, Ebert has deemed himself beyond the law. His actions are evil, unethical, contrary to justice and Prince William County residents have a meaningful opportunity to remove him from office on November 3.
Justin Wolfe was convicted of a murder-for hire scheme of his drug supplier in January 2002. By all accounts, Mr. Wolfe is not a poster child for wrongful conviction. Nonetheless, the conviction was almost entirely based on the testimony of Owen Barber, the man allegedly hired to kill the supplier. Wolfe was placed on death row. Barber recanted his testimony. Shortly before being executed, Wolfe obtained marginal relief in the federal courts that ultimately led to a ruling in 2011.
July 12, 2011 ruling
Judge Raymond Jackson of the U.S. District Court for the Eastern District of Virginia (Clinton appointee) found significant problems with the prosecution of Wolfe that lead to his sentence being vacated.
Commonwealth Attorney Ebert testified at the habeas evidentiary hearing the he employs a practice of withholding information from counsel and defendants with the intent of preventing them from establishing a defense around what the information provides…
Not only was the Commonwealth in possession of information that would have revealed falsities in Barber’s testimony at the time of trial, it also knew that suppressing that information would result in denying Petitioner an opportunity to craft a defense based on that information. Therefore, this Court concludes that the Prosecution used Barber’s testimony despite being on notice that it contained falsities. (citation omitted)
…the Commonwealth cannot be entitled to benefit from their deliberate ignorance of and/or reckless disregard for the falsity of Barber’s testimony.
Readers may have heard of the phrase suborning perjury. In this instance the actions may have reached the level of criminal behavior under Va. Code § 18.2-436:
If any person procure or induce another to commit perjury or to give false testimony under oath in violation of any provision of this article, he shall be punished as prescribed in § 18.2-434.
In any prosecution under this section, it shall be sufficient to prove that the person alleged to have given false testimony shall have been procured, induced, counselled or advised to give such testimony by the party charged.
Even if not bad enough for prosecution, the ruling in this case was sufficient to show a violation of Virginia Rule of Professional Conduct 3.3 which requires candor to a tribunal, and mandates that an attorney disclose if a fraud has occurred on a tribunal(court).
Ebert shows his lack of humility
The Commonwealth was forced to retry Wolfe or let him go. Instead of accepting that he did something wrongful, or even questionable, Ebert, along with detective Newsome and another prosecutor visited Barber in prison.
At this meeting Barber was informed that if convicted of perjury (based on his 2005 recanted testimony) he himself could be charged and convicted of capital murder. The public is privy to the content of this meeting as it was secretly and unethically recorded without Barber’s knowledge.
Although there is not a blanket prohibition on one-party consent recordings at the advice of an attorney, the situation here—where the attorney participates directly in the recording—smacks of unethical deception.
Readers who wish to read some of the portions of this conversation can find it here. pp. 45-47.
The day after this “meeting” Ebert moved to recuse his office from the retrial of Wolfe.
Fairfax Commonwealth’s Attorney Murrogh has taken over the prosecution. Wolfe has still not been tried, and they have added six additional counts to the indictment. We will know—after the election—how much of this is intended to protect Ebert.
Politics and entrenched power
Just to reiterate, prosecutorial misconduct put Justin Wolfe on death row and he was almost executed. When confronted about it, Ebert responded with a shrug as he explained that he does not want criminal defendants to mount a defense.
In July 2011 when the Judge Jackson ruling came down I made some inquiries in Prince William as to who I could help win in November based on the incredible 2011 ruling. It was explained to me that Republicans did not have a candidate, and it would be unlikely that Republicans would have a candidate any time in the near future. It seems criminal defense attorneys in Prince William are concerned about losing to Ebert and then being treated poorly by his office after the election. You see, attorneys need to make a living.
In 2014 I met Mike May, a Prince William County Supervisor who was running for Commonwealth’s Attorney in 2015. Despite the danger posed to him (and I dare say, his firm) in challenging an entrenched incumbent with a skewed moral compass, Mike May leaped into the fray and has a great chance of unseating Ebert.
Residents of Prince William, regardless of party, deserve a diligent and responsible Commonwealth’s Attorney. After 47 years Ebert has lost his way. A better option is available.
Vote Mike May on November 3.
Paul Ebert is as corrupt as they come…. take the case of ex-police officer Joseph Ruhren, they barely made it to the preliminary hearing before numerous charges were flat out dropped, on top of that, they offered Joe numerous plea deals, all of which, he turned down. Joe has physical evidence in his possession that proves PWC detectives and Paul Ebert were up to no good and that he is in fact innocent… check out Joe’s story on facebook, Joe Ruhren Innocence Movement… help be the voice of someone who is actually able to prove that he is innocent….
May and his buddies Stewart and Nohe were responsible for the immigration debacle of 2007 & 2008. The economic implications of that incident still persist today. They wasted millions in taxpayers money and damaged PWC as a brand. What business is going to want to come to PWC with its current reputation and self-destructive economic policies. Your homes are worth less today and your paying higher taxes because of what Mike May supported in 2007. Mike May hurt more people in a few months than Paul Ebert prosecuted in his whole career.
[…] Ebert Must Go […]
And yet… the guy was factually guilty and will likely, if he hasn’t already been, be sentenced to death again. No surprise that activist federal judges look for excuses to vacate death sentences. With all due respect to the May person, I doubt he could even begin to know how to prosecute a capital case. You really can’t learn on the job when it comes to such an important public safety position.
It is actually relatively rare for federal judges to excoriate prosecutors in this manner. They weren’t looking for excuses. They were responding to an abuse of power. I fail to see how you have concluded May could not conduct a capital murder case.
The guy wasn’t likely factually guilty of murder-for-hire, he has not been retried for some unknown reason, and if sentenced to death again based on the tainted testimony of the one witness, the conviction will likely be overturned again. Ebert doesn’t know how to prosecute a case hence the prosecutorial misconduct.
Approximately 10% of death penalty convictions have been overturned nationally since the 70’s and the rise of DNA technologies prior to sentence being carried out, 10%! We have no idea what the true percentage really is given those errors, mistakes and outright misconduct that is never uncovered prior to execution. We wouldn’t accept a 10% failure rate in a kitchen appliance let alone in terminating another’s life. Many question how this could happen, well here is one example of how and why.
Maybe 1% – if at that – are overturned but nowhere near 10% The vast and overwhelming number of scunbags on death row DESERVE to forfeit their IMMORAL lives. Mercy to the guilty is torture to the innocent.
When America desides – out of a misplaced mitigation of depraved EVIL – to condone/excuse/pardon heinous crimes, THAT’s when vigalantism becomes an ethical duty.
Sorry but not true, that number is close to Virginia’s percentage but not the total national number for the period of the mid 70’s through today. I am not claiming a annual number but a cumulative one for the time period. I did the research some time back on a comment included here at TBE. The culumative numbers released vs those death row sentenced are available I encourage you to look for yourself if you still are doubtful.
DPIC is an advocacy group, not an independent academic organization. They include in the number of “exonerations” many circumstances which are by no means exonerations, i.e., factually innocent people convicted. There is to date not one factually proven innocent person executed in this country since restoration of the DP in 1976.
Wow, can’t argue with logic and facts like that.
I won’t waste my time as there is fairly very little ever gained from agenda grinders that are impervious to facts. Just not interested.
Then share some facts, Slick. Don’t forget to attribute your sources. There is no proof whatsoever that one single factually innocent person has been executed in this country since the 1976 reinstatement. You can stamp your feet, close your eyes, and stick your fingers in your ears all you like. As for exonerations, your 10% figure most certainly includes actual murderers who were not executed because something went wrong with their prosecution. And no one would argue that they shouldn’t have been exonerated. After all, in this country, we hold the prosecution to a standard–they have got to follow rules and get it right, or else let the accused go. Just quit claiming that 10% of them were not murderers. It makes you look foolish.
Based on this fact sheet as of spring 2015 there were 156 exonerations and 1418 executions since 1976. That is about ten percent for all concluded death row matters. There are 3002 people on death row who fall into neither category. These 3000 may be executed, exonerated, or die in prison.
The article below initially caught my interest back in 2014 and I started with their base data which I verfied on line on a state by state basis through I did extend the timeframe into the 60’s and included the US Teritories and Puerto Rico. This team of researchers concluded that about 4.1 percent of criminal defendants who are sentenced to death are falsely convicted. The researchers also note that a 4.1 percent rate of false conviction is VERY conservative, given that separate calculations gauging the accuracy of the assumptions that took an even more conservative stance—assuming that people who were executed had zero chance of false conviction and that the chances of exoneration after retrial would be twice that of people on death row—would still produce a larger figure than their 4.1%. I relaxed these assumptions somewhat and expanded the convicted population as described above and came up with 9.6% (the rounded number in my comment above). I’m confident the rate lies somewhere between 4.1% on the low end to 9.6% on the top end scale. Honestly I was shocked and redid the analysis again and out popped the same results. I have also found when the topic has come up most individuals have a difficult time accepting these findings.
There can be no more serious allegation against a prosecutor than misconduct in a death penalty case that was so severe the conviction was vacated.