How Commonwealth’s Attorney Paul B. Ebert Touched People
Paul B. Ebert, Virginia's longest-serving prosecutor, was honored a couple of years ago.
A portrait of Ebert was unveiled at the event that will be hung near his office alongside those of his predecessors. The portrait was done by Wendell Powell Studio in Richmond.
The idea of a portrait came from the many people Ebert has known in his 43 years as a commonwealth’s attorney.
“We see all these nice, distinguished gentlemen hanging [on the walls] around the courthouse,” Prince William area lawyer William Stephens said. “It dawned on me” that Paul Ebert should be one of them. “He has touched so many people.”
Indeed he has.
Justin Wolfe, for instance.
Gideon at the "A Public Defender" blog — who is absolutely essential reading if you care about how America's criminal justice system works — explains how Paul Ebert touched Justin Wolfe.
Wolfe has spent more than a decade in prison, and continues to spend time in prison, on a murder-for-hire charge. He's in prison even though a federal court has found that he has made a showing of actual innocence and even though the prosecution team — through Paul B. Ebert — deliberately suppressed key exculpatory evidence and then attempted to extort a witness.
This opinion by the United States Court of Appeals for the Fourth Circuit tells the tale. Wolfe was a drug dealer. Another drug dealer, Barber, claimed that Wolfe hired him to kill a third drug dealer. Barber was the star witness — in fact, he was the only witness supporting the claim that the murder was for hire (and thus capital murder) or that Wolfe was involved. In exchange Barber got a reduced charge. Barber later recanted and said he made the whole thing up. A federal judge found that the Virginia prosecutors had withheld key evidence about Barber and other elements of the case:
Specifically, the court ruled in the Brady Order that the prosecution had withheld eight items or groups of favorable and material evidence, falling into three broader categories: (1) evidence tending to impeach triggerman Barber; (2) evidence tending to impeach other prosecution witnesses who corroborated Barber's testimony; and (3) evidence suggesting an alternate theory of the Petrole murder. The court also deemed Wolfe to be entitled to relief on his claim that the prosecution knowingly presented false testimony by Barber, in contravention of Wolfe's Fourteenth Amendment due process rights
What did the prosecutors — including Ebert — withhold? They withheld a report showing that they had been the first to mention Wolfe to Barber, and they had told Barber he'd be executed if he didn't flip on Wolfe:
This information is favorable to Wolfe because it documents the fact that detectives first mentioned Wolfe in connection to the murder and presented Barber with the option of execution or life imprisonment in exchange for implicating someone else, well before Barber began cooperating with the Commonwealth or implicating Wolfe in the murder. Prosecutors do not dispute the fact that the report was not provided to [Wolfe]. Furthermore, the report is material because it reflects that Barber had a motive to misrepresent the facts regarding Petrole's death.
This was not a mistake. This was policy. Ebert's explanation shocked even the notoriously conservative Fourth Circuit:
During Wolfe's evidentiary hearing in the district court, the Commonwealth's Attorney [Ebert] explained that his office does not have an "open-file policy," providing criminal defense counsel access to entire case files. See J.A. 3690. Asked to elaborate, he offered the flabbergasting explanation that he has "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." Id. Additionally, the Assistant Commonwealth's Attorney admitted that he does not produce evidence to a criminal defendant unless he first deems it to be "material" and "credib[le]."
Emphasis added; conspiracy to violate civil rights in the original.
The Fourth Circuit professed to be "flabbergasted" by Ebert's excuse that if you turn over exculpatory evidence the defense will just use it to, you know, defend the case. It shouldn't be. As I often say here, the criminal justice system is full of people who believe that its purpose is to deliver convictions and any other result shows a malfunction. Nor is Ebert's belief that he should decide what to turn over to the defense, based on his idea of what is "material" or "credible," unknown. As I discussed in 2012, the ACLU sued the Los Angeles County District Attorney's Office for internal policies reflecting the same mindset. This sort of thing is why Ninth Circuit Judge Alex Kozinski recently decried an "epidemic" of prosecutorial violations of the constitutional duty to turn over exculpatory evidence.
But Paul B. Ebert wasn't done yet.
The federal court ordered Virginia to retry Wolfe in 120 days or set him free. A prosecutorial team including Ebert responded by attempting to extort Barber into changing is story again, this time back to how they had extorted him to testify at trial. Gideon, again, has the story. He quotes from Wolfe's petition to the Supreme Court. I will quote from the dissenting judge in the Fourth Circuit:
[T]he pattern of misconduct does not end there: it reached its pinnacle on September 11, 2012, when Detective Newsome and Prince William County prosecutors Richard Conway and Paul Ebert (the "Original Prosecuting Team") visited Barber in jail (the "September 11 jail visit") and attempted to coerce Barber to repeat his 2002 trial testimony upon retrial — the same testimony that the district court found "contained falsities." Wolfe, 819 F.Supp.2d at 571 ("Not only was the Commonwealth in possession of information that would have revealed falsities in Barber's testimony at the time of the trial, it also knew that suppressing that information would result in denying Petitioner an opportunity to craft a defense based on the information.").
This time, however, Barber had enough. The district court explained,
"As Mr. Barber's counsel's testimony indicated during this Court's December 13, 2012 hearing, Mr. Barber, under advice of counsel and in consideration of the Original Prosecuting Team's [Sept. 11, 2012] conversation, has now invoked his Fifth Amendment privilege, which the Prince William County Circuit Judge authorized. As indicated by Barber's counsel, Barber intends to continue to invoke his Fifth Amendment privilege at Wolfe's retrial, absent the granting of immunity."
J.A. 527 (citations omitted). Thus, by threatening and intimidating Barber — whose most recent and credited testimony was that Wolfe had nothing to do with Petrole's murder — into invoking the Fifth Amendment, the Commonwealth has once again deprived Wolfe of potentially exculpatory evidence. This is a circumstance that, even if (somehow) the constitutional violations can be remedied upon retrial, is extraordinary enough "such that the holding of a new trial would be unjust." Capps, 13 F.3d at 353.
What that judge is saying is this: Ebert and his investigator (who came out of retirement for that little trip) visited Barber, threatened him with the needle if he didn't change his story back to something the federal court had found was untrue, and (predictably) caused him to invoke his Fifth Amendment rights, so he was no longer able to testify in Wolfe's favor at Wolfe's retrial.
Wolfe asked the federal court to bar Virginia from retrying him based on this misconduct. The issue that will be before the Supreme Court if it accepts the case is whether the federal court has the power to forbid the state to retry Wolfe under such circumstances. The Fourth Circuit has decided that it lacks that power.
I am repulsed. But I am not shocked.
This is the way the system works.
Justin Wolfe is in a cage. Paul B. Ebert is free.
It ought to be the other way around.
Rather than having his portrait on the wall of a Virginia courthouse, Paul B. Ebert should be in federal prison.
But, because he is a prosecutor, the chances that Paul B. Ebert will face any meaningful consequences are vanishingly small. He got that honor — that portrait — well after his withholding of exculpatory evidence in this case was revealed. The honor reflects the belief of the law enforcement community: Paul B. Ebert, by violating constitutional rights, was doing his duty. He was making the system work.
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