Wolfe Transcript - 10022013

1 V I R G I N I A IN THE CIRCUIT COURT OF PRINCE WILLIAM COUNTY - x : : : : : : : : : - x
COMMONWEALTH OF VIRGINIA, -vsJUSTIN MICHAEL WOLFE, Defendant. -
CR12003732-00 thru CR12003737-00
Circuit Courtroom 3 Manassas, Virginia Wednesday, October 2, 2013 The above-entitled matter came on to be heard before the HONORABLE MARY GRACE OBRIEN, Judge, in and for the Circuit Court of Prince William County, in the courthouse, Manassas, Virginia, beginning at 10:00 oclock a.m. APPEARANCES: On Behalf of the Commonwealth: CASEY LINGAN, ESQUIRE Special Prosecutor On Behalf of the Defendant: KIMBERLY IRVING, ESQUIRE EDWARD B. MACMAHON, JR., ESQUIRE
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CERTIFIED VERBATIM REPORTERS 4116 LEONARD DRIVE FAIRFAX, VIRGINIA 22030 (703) 591-3136
2 * * * * * C O N T E N T S WITNESSES Samson Newsome DIRECT 3 CROSS 41 REDIRECT 50 RECROSS 53
* * * * * E X H I B I T S FOR IDENTIFICATION Defendants Exhibit No. 2 (copy of Mr. Newsomes notes) 6 IN EVIDENCE 40
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3 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 Q Whereupon SAMSON C. NEWSOME a Witness, was called for examination by counsel on behalf of the Defendant, and after having been duly sworn by the Clerk of the Court, was examined, and testified, as follows: DIRECT EXAMINATION BY MR. MACMAHON: Mr. Newsome, can you state your name for the E X C E R P T O F P R O C E E D I N G S * * *
record, please. A retired. Q A And how are you employed now? I am employed by the Prince William County Yes, Samson C. Newsome. Im master detective
Police Department. Q Investigating and working on the Justin Wolfe
case; correct? A Q Yes, sir. Thats correct.
And in early September of 2013 -- excuse me,
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4 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 2012, how were you employed? A Department. Q purpose? A Q Yes, sir. To assist in the Justin Wolfe case. Were you brought back for any specific I was employed by the County Police
Did you take notes -- Is it your practice to
take notes of meetings that you attend? A Generally I take notes at meetings. My
practice throughout the years has been to record interviews or interrogations, but I do take some notes, yes. Q How about meetings that you have with
attorneys that represent the Commonwealth of Virginia? A Q Yes, sir. And in fact, you did actually attend some
meetings with attorneys for the Commonwealth of Virginia in early September of 2012; correct? A Yes, sir. I have. Your Honor, can I have this
MR. MACMAHON:
marked for purpose of identification first? THE COURT: Sure.
Mr. Lingan, do you see what --
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5 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 MR. MACMAHON: the Commonwealth a copy. THE COURT: Sure. And Im not sure what exhibit Im sorry. Ive already given
MR. MACMAHON:
number this would be for purpose of this motion. THE COURT: this motion. MR. MACMAHON: THE COURT: Thats fine. Why dont we just do it No. 1 for
No. 1 for this motion. Your Honor, I think the
MR. MACMAHON: transcript may be No. 1. THE COURT:
Oh, okay. If I can, Your Honor, I have a
MR. MACMAHON: copy for you too.
(Mr. MacMahon handed a document to the Court.) THE COURT: Thank you. This is a different
motion than the motion we heard this summer. MR. MACMAHON: THE COURT: No. We are finishing up on it.
This is the second half of the
motion, because you are putting -- The first half of the motion I heard was where I heard the tape and I reviewed the transcript. So since it is the second half of this motion,
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6 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 now. Q it probably should be No. 2. MR. MACMAHON: Thats fine, Your Honor.
You also in that same hearing said that we -You didnt let us call Mr. Ebert or Mr. Conway with respect to this motion. THE COURT: be No. 2 then. (The document referred to above was marked Defendants Exhibit No. 2, for identification.) MR. MACMAHON: THE COURT: Can I show that to the witness? Go ahead. You take that Thank you. Right; right. Okay. So this will
Oh sure.
and Ill take the Courts copy. BY MR. MACMAHON:
Thats fine.
Mr. Newsome, I think we have marked it No. 2
Can you tell the Court what this is? A The first page is the cover of one of my
notes, one of my notebooks of my notes concerning this case. Q Tell the Court what this is. This is a copy
of a notebook; correct? A Yes, sir. This is a county police notebook
that we use for field notes, interviews, a lot of
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7 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 page. A Q Yes, sir. Does this refresh your recollection as to when or not. Q But before September 11th, you were party to assortment of things. This is a -- the first page of this is a copy of the cover of that notebook, my notebook. Q And do you remember when the first day was
that you were brought back to work on this case? A date was. I cant remember specifically what the first I know the date that we went to the prison was
September 11th. I dont recall if I was here a day before that
conversations with attorneys for the Commonwealth about how to proceed in the case of a new trial against Mr. Wolfe; correct? A Q Yes, I believe so. If you look at the -- Do you see the bate
stamps at the bottom, sir? A Q Yes, sir. Do you see 12576, which would be the third
you may have started working on this case?
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8 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 sir. Q And before September 6th of 2012, have you had A Yes, sir. It looks like the first date there
is September 6th, and has some time. Q These are billing records. Is that what this is? Yes, Keeping time for
billing here. A
Just a moment and let me look at it.
the opportunity to read the rulings that Judge Jackson had issued in Mr. Wolfes habeas case? A Prior to September 6th? Are you talking about
the rulings from, I think, 2009? Q A Q Yes. Yes, sir. You were aware that one of Judge Jacksons
major concerns was that the facts of your interview of Mr. Barber on the way back from California were not disclosed to Mr. Wolfes defense; correct? A Q Yes, sir. And you are aware that there was an allegation
or a finding by Judge Jackson that that was an intentional act withholding that report; correct? A Based on what I had read from Judge Jacksons
ruling, yes.
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9 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 Q You were aware that Judge Jackson had found
that Owen Barbers testimony that Justin Wolfe was not involved in the murder of Danny Petrole was credible; correct? A Q Im sorry. Could you repeat that question?
You were aware on or about September 6th that
Judge Jackson had found as a matter of fact that Owen Barbers recantation of his testimony against Justin Wolfe was found to be credible. A Q Yes, sir. Based on Judge Jacksons ruling.
And you were aware that Judge Jackson had
found that Mr. Ebert and Conways actions in prosecuting Mr. Wolfe were intentional; correct? A That was what Mr. Jackson -- or Judge Jackson
had indicated. Q And abhorrent with the interest of justice, do
you remember that language too? A Q No, sir. I dont.
And you know that the Fourth Circuit affirmed
Judge Jackson; correct? A No, sir. I cant say that I was familiar with
the Fourth Circuit affirming it, because I wasnt working during that period of time. So I didnt have direct
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10 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 access to all of that information. Q Did somebody tell you that the Fourth Circuit
had found that the withholding of the -- Well call it the Newsome report. It was an intentional act by the
Commonwealth Attorneys in Prince William County in Mr. Wolfes original trial. A Q Im sorry. Yes. Was that a question, sir?
Were you aware of that fact on or about
September 6th? A Q Could you repeat the question, please. Were you aware of the fact that the Fourth
Circuit Court of Appeals found that the decision by the prosecutors in this Court to withhold the Newsome report from Justin Wolfes defense counsel was intentional? A Either directly or indirectly I think I was
aware of that. Q Did you know on or about September 6th that
Judge Jackson had found that Mr. Eberts testimony before him was not credible? A Q Yes, sir. I recall reading that.
And Judge Jackson had said the same thing You knew that as well; correct?
about Mr. Conway as well. A No, sir.
I cant say that I knew that.
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11 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 Q objection. Honor. MR. LINGAN: through the mud. This is about specific allegations. THE COURT: Yeah. Im going to sustain the Hes laying mud to drag people Q Did you know there were bar complaints on or
about September 6th against Rick Conway and Paul Ebert? MR. LINGAN: MR. MACMAHON: Your Honor, at this point -Im laying a foundation, Your
I think you need to move on to the issues that
are before the Court. BY MR. MACMAHON: Had Mr. Conway said anything to you about his
reputation being soiled by Mr. Wolfes defense attorneys on or about September 6th? A Q No, sir. Who was the first person you talked to about
the process of trying to retry Justin Wolfe for capital murder? A Q I believe it was Mr. Conway. When you talked to Mr. Conway, did you talk to
him about getting Owen Barber to testify again? A At some point -- I dont recall having that
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12 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 sir. Q A Who did you discuss that with? Im sure I discussed it with Mr. Conway and specific conversation, but I know we would have talked about it, yes, sir. In other words, I cant tell you a date or a meeting we would have discussed that. discussed. Q Do you remember the details of any discussion I know it was
that you had with Mr. Conway about getting Owen Barber to testify again? A Q No specific details; no, sir. Did you have any conversation with him that
Mr. Barber might repeat the testimony he gave in federal court? A I was aware that that was a possibility; yes,
likely Mr. Ebert. Q Did you ever talk to Matt Dullaghan at the
Attorney Generals office about that? A Q A Prior to September 6th or when? Prior to you going to meet Owen Barber. No, sir. I dont believe I did. With the
exception of possibly back in 2009, I had dealings with
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13 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 Mr. Dullaghan. Q Im not asking that. If my question raises
that, I apologize. Im focusing on after the Fourth Circuit returns its decision and then you go back and see Mr. Barber; okay? A Q Yes, sir. In that time frame, do you recall having any
discussions with Mr. Dullaghan about how to retry the case against Justin Wolfe? A Prior to September 11th? Prior to going down
to Augusta County? Q A Q Yes. I dont believe so. I dont recall that, sir.
Would you have the same answer if the question
included Mr. Ebert or Mr. Conway? A Q No, sir. It would not be the same answer.
With respect to Mr. Ebert and Mr. Conway, what
discussions did you have with them about the process of retrying Justin Wolfe? A I cant recall specifics of the conversations.
Im sure logically it would have included what Mr. Barbers testimony would be if Mr. Wolfe were to be
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14 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 me. from. retried again. Q A Q A Q Look at the next page 12577. Yes, sir. Is that your handwriting? Yes, sir. It is.
What is it -- Do you have any recollection of
where these notes came from? A I dont have them dated, which is unusual for
But I cant recall a specific time of where they came But looking at them in the context of them and the
way they are worded, it is my opinion that these notes were a result of meeting with the Commonwealth Attorneys office. Q A and after. Q Why dont you go a couple pages ahead, 12579. MR. MACMAHON: And for the record, Your Honor, Before September 11th, 2012; correct? That would require me to look at things before
Im referring to the bate stamps from the Commonwealths production at the bottom. THE COURT: THE WITNESS: Thank you. Im seeing the date there of
September 6th that I would say it was on or about that
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15 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 6th. Q time, yes, sir. BY MR. MACMAHON: Was there any discussion that Mr. Ebert or Mr.
Conway should recuse themselves from this case on September 6th, 2012? A I dont recall any discussion. I dont recall
whether there was or was not at that juncture on September 6th. Q Are these notes accurate about the meeting -Ill strike that question.
Let me get this straight.
These notes that Im looking at now of 12577, those are notes of a meeting that you had with Mr. Conway and Mr. Ebert; is that right? A Based on -- Im making an assumption based on I dont But
what Im reading here and what Im looking at. have any notes as to who the meeting was with.
logically, it would have been either with Mr. Conway and/or Mr. Ebert. It could have been a phone conversation on the I dont have anything -- Haven taken a lot of notes,
I dont have anything on this one particularly indicating what the origins of these notes are. Q But you dont have any doubt in your mind
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16 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 though, do you, sir, that these are notes of a conversation that you had with one of the Commonwealth Attorneys before you went to see Owen Barber; right? A Q No, sir. Okay. I have no doubt about that.
What does it say -- Just translate. What is
Your handwriting is a lot better than mine, sir. the reference to J.R. Martin in this note? A I dont know, sir.
That name has been in this
case for a very long time.
So being able to just look at
the name written on my notes and knowing what the significance was in context of these notes, I cant answer that, sir. Q How about the -- Does that say contact all
prior witnesses? A Yes, sir. That would be to try and make
contact with all prior witnesses, which would be pretty standard in any investigation. Q And to give them copies of the transcripts of
their testimony? A Q A No, sir. What does the word transcript refer to here? I would surmise that that means to review the This was kind of a -- That looks like
transcripts.
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17 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 something that I wrote to myself to do or needed to do. Q A Q What does the next line say? AG opinion on prosecution. Okay. And what is the source of this
information? or Conway? A
The source of this information is Mr. Ebert
I would suppose that was something that was I cant say specifically what
discussed in that meeting.
that note or what that line references. Q A Q What meeting Mr. Newsome? I beg your pardon? You said it was discussed at that meeting.
What meeting was it? A Well, if it was a meeting that these notes
were representing, and Ive already conceded that it would have been a meeting between either myself and Mr. Conway and/or Mr. Ebert, or that it was possible that it was a telephone conversation. Q This doesnt refresh your recollection at all
as to where this meeting was? A Q correct? No, sir. And there is a reference to felony murder;
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18 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 say? A Reference -- Looks like investigate reference A Q Yes, sir. What do you recall about that being part of
the discussion? A Again, I have no specific recollection as to
what that note represents. Q Soon thereafter, Mr. Wolfe was indicted for
felony murder; correct? A Q I believe so. Yes, sir. What does that
And how about the next line?
or re-interview. Q A Q Yeah, what does that refer to? Im sorry, sir? Does that refresh your recollection at all as
to what happened or what that means? A Q No, sir. I dont. Use prior testimony
How about the next line.
for anyone legally unavailable. A Q A Q Yes, sir. Who said that? I dont know, sir.
Is that what that says?
What is your understanding of what legally
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19 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 unavailable witnesses are under Virginia law? A My understanding of it is someone who is
deceased, incapacitated, cant make an appearance before the Court. Q A Q Or someone who has taken the Fifth; correct? I would assume, yes, sir. And thats something that you discussed with
Mr. Ebert and Mr. Conway before you went down to Augusta; isnt it? A Thats possible, yes, sir. I cant recall
specifically that conversation, but I believe that would be in the realm of the conversation. Q One way to get to use somebodys prior
testimony was to have them take the Fifth; right? A Yes, sir. MR. LINGAN: Your Honor, I object to the
phrasing of the question. MR. MACMAHON: question, Your Honor. MR. LINGAN: question first. No. He answered a different He has already answered the
Hes now rephrasing the question. Ill try. I thought he
MR. MACMAHON: answered the question.
Ill try again.
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20 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 Q the tactic. THE COURT: a different question. question. BY MR. MACMAHON: Mr. Newsome, in your conversation, somebody in I understand the objection. Ill ask you to rephrase the Its MR. LINGAN: unavailable means. His understanding of what legally He said I
Hes assuming the Fifth.
would assume the Fifth was one of the possibilities. THE COURT: And then the next question was,
did you talk with the prosecutor. MR. MACMAHON: Mr. Lingan is confused. MR. LINGAN: Im not confused. I recognize Ill try again, Your Honor.
the room said you should use -- we can use prior testimony for someone who is legally unavailable; correct? A possible. myself. I cant testify specifically to that. That is
This is not something that I would have done Im not an attorney. So that portion of my notes
would have been me making note of something that was said. Q Right. So a lawyer at this meeting on or
about September 6th, said, We could use prior testimony for anyone who is legally unavailable; correct?
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21 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 A It may have been something that was said. I
cant say, counsel whether someone actually said that. But it would be my logical conclusion that that was a statement that was made or a point that was brought out that I made a note of. Q A Q And why did you put a star next to that? I dont know. Do you know whether it was Mr. Ebert who said
using prior testimony of legally unavailable witnesses is a plan for the prosecution? A No, sir. Again, I dont even know or I dont
even recall who was at a meeting or phone conversation from these notes when I wrote these notes out. Q A Who were you meeting with Mr. Newsome? I would have been meeting with, probably at
this time, it would have been either Mr. Conway and or Mr. Ebert. Q Right. You werent meeting with Mr. Lingan at
that time; right? A Q No, sir. And you werent meeting with anybody other
than Mr. Ebert and Mr. Conway; right? A Yes, sir.
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22 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 down? A Q Augusta? I beg your pardon? Was it just a passing comment as you drove to did. Q In what context? Tell us everything about the Q So the person that told you the plan would be
to use prior testimony for anyone legally unavailable is either Rick Conway or Paul Ebert; correct? A Q I already said that; yes, sir. And in your discussions about going to see
Owen Barber, did the concept of him taking the Fifth Amendment ever come up? A Yes, sir. I would have to say it probably
discussion with you and Mr. Ebert and Mr. Conway wherein Mr. Barber might take the Fifth if you went to see him in Augusta. A Q A I wouldnt be able to do that, sir. Tell me as much as you can. That it was discussed. Counsel, I would be Other than it was
making things up if I said that. discussed. Q
Just something in passing as you drove on
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23 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 Q A No, sir. These notes wouldnt have been when This would have been either a
we were driving, sir.
telephone conversation or sitting in an office. Q Right. But you do have a recollection of
somebody discussing the possibility -- Mr. Ebert or Mr. Conway discussing the fact that Owen Barber might take the Fifth if he was threatened with the death penalty; correct? THE COURT: Are you referring to when these
notes were made or when they were in the car? MR. MACMAHON: these notes were made. Ill rephrase the question. THE COURT: time, which time. BY MR. MACMAHON: On or about September 6th, when these notes Okay. I just wasnt sure of the Yes. On or about the time
were taken, you told me that there was a discussion of Owen Barber taking the Fifth; correct? A The page that we are on now, I dont know that Go ahead and repeat the question if
it was September 6th. you would, sir. Q
Lets try a different question.
Before you,
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24 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 Q relevance. THE COURT: Calls for speculation. Sustained. Mr. Ebert and Mr. Conway went down to Augusta to see Owen Barber, there was a discussion of the fact that he might take the Fifth if he was threatened with the death penalty again; correct? A It would have been brought up and the
statement would have been made, because I made a note of it; theres something to consider. Q right? A Q No, sir, I cant. Do you remember whether Mr. Ebert or Mr. And you cant tell the Judge who said that;
Conway said anything about a legally unavailable witness being someone who took the Fifth Amendment? A Q I cant recall that specifically; no, sir. Was that within the realm of possibility to
use your language? MR. LINGAN: Your Honor, I object to
BY MR. MACMAHON: You dont have any specific recollection of
that at all; correct? A No, sir. I dont.
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25 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 Q A Now, who set up the trip to Augusta? It may -- I did not set that up. It would
have been someone in the Commonwealth Attorneys office, so far as I know. Q When was the first time that you learned that
you and Mr. Ebert and Mr. Conway were going to head down to Augusta to meet with Owen Barber? A It would have been early August, somewhere
around -- or Im sorry, late August, somewhere around late August early September. Q A Q Did you know he had an attorney at that time? No, sir. I didnt.
Did you ask Mr. Ebert or Mr. Conway if Mr.
Barber had a lawyer before you went to go see him? A Q A no, sir. Q But its not something you ever discussed, you No, sir. It didnt matter to you at all? I would not agree to that characterization;
agree with that; right? A Q I beg your pardon, sir? Ill move on. So when you -- When was the first time that
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26 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 it? A Q As far as my knowledge; yes, sir, it was. Hadnt you already been in a meeting where it you knew there was a trip planned where you were going to go with Mr. Ebert and Mr. Conway to see Owen Barber? A Probably four to five days prior to -- or Im The trip was on the
sorry, it would be more than that. 11th. Q Right around September 1st.
Did you have a pre -- Did you have a
conference to talk about what you were going to do down there? A The purpose of the trip was to ascertain what
Mr. Barbers testimony would be if we were to prepare for trial. Q It wasnt the only purpose of the trip; was it
Mr. Newsome? A Q I beg your pardon. That wasnt the only purpose of the trip; was
was decided there was going to be more charges against Owen Barber? A Q A No, sir. Are you sure of that? Yes, sir.
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27 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 Q page 12582. A Q A Q A Q Yes, sir. What is the date of this note? 582? Yeah, 12582, sir. September 10th, 2012. Why dont you read to the Judge what it says Why dont you look at your notes thats on
below the words transcript box. A Q Retry Owen Barber. Does that refresh your recollection, before
you went to see him you were also planning on retrying Owen Barber? A Q A No, sir. What are these notes of? The question you asked me, sir, was had a It may have been
decision been made in that meeting.
discussed, and obviously based on this, it was discussed. Q It was discussed, wasnt it Mr. Newsome that
the plan was to go down and tell Owen Barber that he faced additional charges; correct? A Q Based on that, yes, sir. And that was before you went to see Owen
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28 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 Barber; correct? A Q Yes, sir. And that was a discussion you had with Mr.
Ebert and Mr. Conway. A Q Yes, sir. So the purpose of the meeting was not just to
go find out what his testimony would be; correct? A That was the primary -- I was not going to be
telling Mr. Barber that he was going to be charged with something. Q A Who was? That would come under the purview of the
Commonwealth Attorneys office. Q The decision to tell him that he was going to
be charged with something else was made by Mr. Conway or Mr. Ebert before you went to see him; correct? MR. LINGAN: for speculation. THE COURT: He cant tell. He can tell what Your Honor, I object. That calls
they related to him, but he cant tell what they were thinking. MR. MACMAHON: THE COURT: I apologize, Your Honor.
Thats all right.
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29 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 Q BY MR. MACMAHON: Did Mr. Ebert tell you before September 11th,
2012, that he had decided to bring additional charges against Owen Barber? A Q A Q No, sir. He did not.
Did Rick Conway tell you that? No, sir. He did not.
Did they tell you they were considering
bringing additional charges against Owen Barber? A I wouldnt classify it as considering, but It was an option that was potentially
that was an option. available. Q
But you knew before you got to Augusta, to the
jail, that Mr. Barber was going to be told that he had breached his plea agreement and could face the death penalty again; right? A Q Yes, sir. That was something you had discussed with Mr.
Ebert and Mr. Conway beforehand; correct? A I was party to the conversation. I didnt
have a lot of discussion in the legal aspect of it. Q What did you hear? You say you were a party
to the discussion.
Who was it that said they were going
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30 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 to tell Owen Barber that he had breached his plea agreement and would face death again? A Conway. Q And you heard that, right, before you went to You heard one of them say that. That would have been either Mr. Ebert or Mr.
Augusta; correct? A Q A
I heard them discuss it; yes, sir. And where did that take place? It would have been in the Commonwealth
Attorneys office. Q In that meeting did they talk about recusing
themselves from the case? A Q At this time, I cant say. No, sir.
Who else was at that meeting where they
discussed charging Owen Barber with a death penalty offense again? A I dont recall who all was at those meetings, I cant recall specifically who all But it would have been myself, I dont know if Mr. Ebert
the early meetings.
were at those meetings.
Mr. Conway and/or Mr. Ebert. was at all of the meetings.
There were some meetings with, I think Ms. Burnette, from the Attorney Generals office, may have
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31 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 assumption. THE COURT: Dont tell us your assumptions. If you been. were. Based on the notes Ive seen so far, what notes pertain to what meetings specifically. Q Would you tell the Judge everything you I cant recall specifically which meetings those
remember about the meeting where you heard either Mr. Conway or Mr. Ebert say that in Augusta, Mr. Barber was going to be informed that he had breached his plea agreement and would face capital charges? A Thats the best of my recollection, thats it,
that that was an option, that there was case law supporting that, that if a person went back on their testimony and their plea agreement that they could face further consequences for it. Q A Who brought that up? It would have been one of the Commonwealth But my
Attorneys in a meeting or someone in the meeting.
assumption is that it would have been Mr. Conway or Mr. Ebert. MR. LINGAN: Your Honor, I object to the
If you remember something, tell us you remember.
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32 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 Q dont remember, then say you dont remember, please. THE WITNESS: THE COURT: THE WITNESS: Yes, maam. Okay. I dont remember.
BY MR. MACMAHON: Was the plan that if Mr. Barber agreed that he
would tell the story that Judge Jackson found to be a lie, if he went back to that, that you wouldnt tell him, he could be recharged? A Q Could you repeat that question? Did you discuss with Mr. Ebert and Mr. Conway
what would happen if Owen Barber told you in Augusta that he would tell the story that he told in Prince William County again in 2012? A Q A Q Did I discuss it with him? Yeah. No, sir. Not that I recall.
Was there any discussion that if Owen Barber
went back and repeated his original testimony that he wouldnt face a death penalty? A Q A That he would not? Yes. I dont recall that. No, sir.
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33 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 Q Honor. THE COURT: Okay. Go ahead. Q Was there any discussion at all that Owen
Barber might actually repeat the testimony that he gave in Prince William County in 2002? A Q A Yes, sir. And what was that discussion? That that was a potential -- that was a
possibility that he may testify the way that he did in any initial trial. Q Right. And in that circumstance, was it the
plan to tell him that he could be executed, face the death penalty for the testimony that he gave in federal court as well? MR. LINGAN: THE COURT: Thats been asked and answered. Sustained. I dont think it has, Your
MR. MACMAHON:
BY MR. MACMAHON: In the context of your discussions, and again,
these are with Mr. Ebert and Mr. Conway; right? A Q Yes, sir. You just told me that there was a discussion
about the possibility that Owen Barber might revert to his
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34 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 original testimony; correct? A Q Yes, sir. Thats correct.
And in that circumstance, was the plan if Owen
Barber had said, I will say what I said in 2012 again, to tell him that the Commonwealth Attorney would revoke his plea agreement and try to execute him? MR. LINGAN: phrasing of the plan. Your Honor, Id object as to the Again, it calls for him to
speculate what may be in someone elses mind, assessing narrowly as to what was articulated. THE COURT: different question. that? What was articulated? Its a
What was articulated with regard to
Was there something articulated with regard to the
possibility of what counsel had suggested to you? THE WITNESS: My understanding was, is that it
was going to be explained to him that in light of him testifying differently in the past or making statements that were contrary to his initial testimony, which is under oath that he could face charges as a result of the plea agreement. But at no time did I know of any plan to tell him that unless he testified in this way or this way that he would face consequences. I never knew of any plan or
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35 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 sir. Q Were you told to ask him if he could come up Q any talk along those lines. BY MR. MACMAHON: Was there any discussion that if he reverted
to his original testimony to just end the meeting at that point in time? A Q No, sir. So you were going to tell him he could face Thats your testimony as
death no matter what happened.
to what happened with you and Mr. Ebert and Conway? A No, sir. Thats not my testimony.
I had no plans of telling him anything along those lines. Q Thats not part of my responsibility.
Do you remember Mr. Conway saying anything
about what he was going to do in case Owen Barber said Ill testify the way I did in 2002? A Not specifically what he was going to do, no,
with a plausible reason for him to change his stories? A Q A Q No, sir. I was not.
Were you told to read scripture to him? Im sorry, sir? Were you told to read scripture to Mr. Barber
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36 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 at the meeting? A Q your head? A Q Yes, sir. Is that something from your training that you No, sir. I was not.
Thats just something you did off the top of
read scripture to people that are locked up in prison? A It is something that is consistent with my
years as a detective. Q A actions. And the purpose of that is to what? To think about the consequences of peoples Thats a part of my life. It has always been a
part of my interaction with people, whether they were defendants, witnesses or victims. Q And he had just told you that he was going to
testify the way he did in federal court; right? A Q Yes, sir. So why did you read him scripture? You wanted
him to change; right? A Q A Q I wanted him to tell the truth. The truth as you see it; right? Im sorry, sir? The truth as you see it; correct?
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37 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 him? MR. LINGAN: THE COURT: I object. Wait a second. Q MR. LINGAN: THE COURT: I object; argumentative. Sustained. Its argumentative.
BY MR. MACMAHON: Did you know before you went to see Owen
Barber that he had a release date? A Q A Q A Q That he had what, sir? That he had a release date. No, sir. Do you know what a release date is? A date that he is supposed to be released. You made no effort to find out what his
release date was before you went to see him? A Q Not that I recall, sir. So when you asked him if he had a release
date, that was just something that intrigued you? A Q A Q A If I asked him that? Yeah. It would be a question that I just asked him. And you asked him if he had a job; right? Are you asking me or telling me that I told
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38 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 pay. A Owen Barbers pay, Barbers statement. Q objection. the tape. objection. BY MR. MACMAHON: Were you asked to determine whether Owen MR. LINGAN: Court has heard it. This tape has been played. The
It speaks for itself.
Going through did you do this, did you do that, thats not right. THE COURT: Im going to sustain the
I have a recollection of the transcript and They are in evidence, so Ill sustain the
Barber was getting paid for a job at the jail before you went down there? A Q Was I told to ask that? Yeah. Were you told to determine that
information? A Q A Q A Q No, sir. Not that I recall.
Look at 12599, please. Yes, sir. Read to the Court what that says. From the beginning, sir? No. Just where it says star Owen Barbers
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39 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 A Q A Why were you looking into Owen Barbers pay? Let me look at the pages before and after to
refresh my memory. Q As you wish, sir. (The witness is reviewing the document.) It appears that these notes were following
evidentiary review I did in Circuit Court and I would have to speculate on what I think that refers to. Q I dont want you to speculate. But thats
what your notes say; right, Owen Barbers pay? A Q Yes, sir. Were you asked before you went down to see
Owen Barber to see if there was any evidence that someone affiliated with Justin Wolfe had threatened Owen Barber in changing his testimony? A Q A Q Was I asked to look into that? Yes. No, sir. Were you asked to find out if some inducements
had been made to Owen Barber by someone affiliated with Mr. Wolfe to change his testimony? A Q No, sir. And when you asked that question of Mr.
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40 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 Exhibit 2. Q itself. BY MR. MACMAHON: But you hadnt been asked before you went down Barber, he said no; correct? A Q Theres two -Theres threats and inducements, Mr. Barber
told you there was no such thing; correct? A I would have to look at the transcript. MR. LINGAN: Your Honor, the tape speaks for
there to see if there was any evidence of that at all; right? A Is that your testimony? Yes, sir. MR. MACMAHON: Your Honor, we would move in
Im not sure if I had done that. THE COURT: MR. LINGAN: MR. MACMAHON: Okay. Any objection?
No, Your Honor. If I could just consult with
counsel, Your Honor. THE COURT: Sure.
(Counsel confer off the record.) (The document referred to above, previously marked Defendants Exhibit No. 2, was received into
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41 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 Q evidence.) MR. MACMAHON: THE COURT: Thank you, Mr. Newsome.
Mr. Newsome, if you will wait to
see if Mr. Lingan has any questions. MR. LINGAN: Just briefly, Your Honor.
CROSS EXAMINATION BY MR. LINGAN: Good afternoon. It is actually afternoon now.
Counsel has shown you his copies of portions of your notes; is that right? A Q Yes, sir. Did counsel discuss your testimony with you
prior to taking the stand? A Q Im sorry, sir? Did counsel discuss with you prior to taking
the stand your testimony, what your testimony was going to relate to? A Q A Q Defense counsel? Yes. No, sir. Did he show you these -- The first time he is
asking you if you recall these notes is today on the stand?
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42 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 A Q Yes, sir. And it is fair to say that some of your
answers, especially in the beginning, were your best guess to assume and form a conclusion as to what they may refer to? A Q Yes, sir. And its fair to say these notes throughout,
some of them are just to dos to yourself; is that right? A Q A Q Yes, sir. Some things you may come up with on your own? Yes, sir. And some may just be generally ideas that
spring in a meeting. A Q Yes, sir. In regards to, I guess, 12577, you were asked
questions -- At the top, it says 120 days charge or trial, speedy trial issues. A Q A Q Yes, sir. It says J.R. Martin under that. Yes, sir. Already contacted all prior witnesses,
transcript; right? A Yes, sir.
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43 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 Q point? Q right? A Q Yes, sir. Felony murder, and it goes on from there you Phone AG opinion and process maybe or PROS; is that
read the rest -- I guess you didnt read this. records regarding already authenticated, already authenticate firearm evidence as well. A Q Yes, sir.
And so we are clear, there was a discussion
about Matt Dullaghan in the Attorney Generals office. There was an involvement with the Attorney Generals office regarding some of the interpretation, helping in the interpretation of the mandate; correct? MR. MACMAHON: Your Honor, I object. What he
heard -- The form of the question is not -- hes leading the witness what Mr. Newsome may know or not know. THE COURT: He testified that he did not speak Thats my
with the Attorney General representative. understanding of his testimony. objection. BY MR. LINGAN:
So Ill sustain the
I think you did mention Ms. Burnette at some
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44 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 A Q Yes, sir. But to be clear, there were also meetings
regarding the time frame of the opinion as well; is that right? A Q A Q Meaning when he had to be tried as well? Yes, sir. I believe so.
That you would have been present at. Yes, sir. And you are doing your best to remember who
may have been present at various meetings. A Q Yes, sir. And again, the next page, 12578. It says
defense speedy trial, continuances of defense, authenticity, phone records, list of witnesses; is that right? A Q Yes, sir. Okay. The next page you are asked about And it says De Jesus
12579, and thats dated 9-6-2012. Luis telephone at the top. A Q right? A Q Yes, sir. Yes, sir.
Thats an FBI agent; phone mapping; is that
Now, do you recall when he became involved in
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45 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 Q the case? A The first time I met him, and looking at this,
this was the first meeting that I -- The first time I met him was at the Western District Station on the 6th. Q A Q A Could that date be mistaken? Im sorry, sir? Could that date be mistaken? Its possible. MR. MACMAHON: THE COURT: that is the date. THE WITNESS: THE COURT: Based on my notes, yes, maam. Okay. Strike the answer, Your Honor.
The question is are you certain
BY MR. LINGAN: And then you go on to further discuss phone
records on that; correct? A Q Yes, sir. Okay. Then the 9-10-2012, 12582, you were
asked about -A Q A Q Im sorry, where are you? Bate stamp 12582. Yes, sir. Speak to J.R. and G.F.; right?
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46 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 A Q Yes, sir. J.R. and girlfriend. Ice cream after
shooting; correct? A Q
Im literally reading that.
Yes, sir. And then theres Mr. Dullaghans phone number;
is that right? A Q Yes, sir. Talk about getting the witness list from
federal court; is that right? A Q Yes, sir. The transcript box, and then you have
scratched out known about Owen Barber; is that right? A Q Yes, sir. And the very next page, evidence review, It says
account DEA status, evidence, etcetera, Pass. Greg Pass from Police Department. A Q Yes, sir.
And it goes on from there -- It appears random
notes of to dos, that may be things to do in preparation for an upcoming trial. A Q Yes, sir. And thats what these notes are, things to do,
or if you may go through transcripts, notes you made to
&
47 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 yourself about a transcript; is that right? A Q Yes, sir. And many of these notes you dont have an
independent recollection of what you were doing at the time or when you wrote them; correct? A Q A Q No, sir. Is that correct? Thats correct. And in fact, when investigating any case, you
have a number of notes that you take, and they may be random, or they may be notes to yourself to go back to something; is that right? A Q Thats correct, sir. And when you go down -- I think you said there
is a discussion about Owen Barber taking the Fifth potentially. A Q Yes, sir. Do I understand you dont recall independently
how that may have come up? A Q No, sir. I dont recall that independently.
And your understanding at the time as well is
that -- As I understand your discussion, you were preparing for a potential retrial of this case; correct?
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48 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 A A Q Yes, sir. Now, counsel refers to 12599, Owen Barber pay.
He talks about Owen Barber pay. A Q right? A Q A Q Yes, sir. There is no date when that was put in; right? Yes, sir. And it says on top, Just in review, Barber Yes, sir. Is it fair to say thats a note to yourself;
made statement. Can you read that next word? Which one are you talking about, that Barber
made statements? Q A Q Right. Several times about shooting him. Right. And then locate ex-wife of Jason
Coleman, Owen Barbers pay, Barbers statement; correct? A Q Yes, sir. Okay. Now, this is after numerous notes about
phone records; is that right, various phone numbers. A Q Are you talking about prior to? Before that.
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49 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 Q -MR. MACMAHON: hypothetical. THE COURT: Sustained. Your Honor, I object to the A Yes, sir. These are some phone records and
exhibits that were submitted in Circuit Court prior to. Q So that could mean any number of things. It
doesnt say that it was in relation at all to the September 11th meeting; correct? A Q No, sir. For instance, it could be discussing about his
BY MR. LINGAN: Well, the fact of the matter is, you have no
reason to believe that was in relation to the September 11th meeting; correct? A Im inclined to believe that it was not in
relation to it. Q the bush. Now, counsel has been trying to beat around Im just going to ask you directly. Was there ever -- The September 11th meeting, was it ever designed to force Owen Barber to tell any statement in particular? A No, sir.
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50 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 Q Q Was it simply to see what he would say if he
was called to the stand as a witness in this case? A Q Yes, sir. Is your interest in anything other than
obtaining the truth? A Q No, sir. And you believe, based on your discussions
with him, was that the interest of the Commonwealth Attorneys? A Q Could you repeat that? Based on your discussions with Mr. Conway and
Mr. Ebert, was that the intent or the desire of the Commonwealth Attorneys? A That is my understanding, yes, sir. MR. MACMAHON: THE COURT: Just briefly, Your Honor.
Sure.
REDIRECT EXAMINATION BY MR. MACMAHON: Mr. Lingan asked you questions about whether
this is typical in a reinvestigation of the case; correct? A Q I dont recall that question, no, sir. Well, going down and interviewing the
witnesses, all of the things you know, just typical stuff
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51 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 this. Q see that? A Q 77? Yeah. I asked you a bunch of questions about Q right? MR. LINGAN: THE COURT: I did not ask that question. He didnt ask whether it was
typical of the reinvestigation of the case. BY MR. MACMAHON: Let me ask you this. Is this the first case
that you have been involved in where the Commonwealth Attorney here was found by the Court of Appeals they acted unethically? MR. LINGAN: Your Honor, I object to the
relevance of that question. THE COURT: Whats the relevance? Your Honor, Im trying to lay a
MR. MACMAHON:
foundation for my next question. THE COURT: Sustained.
BY MR. MACMAHON: Let me ask you this. On page 12577, do you
Using the prior testimony for anyone legally
unavailable. A Yes, sir.
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52 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 sir. Q But that was a formulated idea of Mr. Conways Q There is no question in your mind that those
words came from Rick Conway or Paul Ebert before you went to see Owen Barber; correct? A I dont have any reason to -- Theres nothing
that suggests or support to me that it was someone else. Q And the language on direct, you told me that
there was discussion of the possibility that Mr. Barber might take the Fifth. Those statements were made by Paul
Ebert or Rick Conway as well; correct? A Q It would have been; yes, sir. And thats not something that you made up that
is in your notes; right? A Q No, sir. Now, in closing, Mr. Lingan asked you if the
whole purpose of the meeting was to learn what Owen Barber would say; correct? A Q Yes, sir. Didnt you tell me that the other part of the
meeting was to tell him that he was going to face the death penalty for changing his testimony? A That was not a formulated idea of mine, no,
&
53 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 Q wasnt it? A I cant testify as to what his idea was. I
knew that was something that had been discussed.
But as
to whether he was going to tell Mr. Barber he was going to be charged or not, its not a decision that I would have made. Q I understand that you didnt make the
decision, Mr. Newsome. But before you went to see him, there was another purpose to the meeting you have already testified to, which was if he stuck to his testimony from the federal court that the Commonwealth could retry him and try to sentence him to death; right? A Thats correct. MR. MACMAHON: MR. LINGAN: THE COURT: Nothing further, Your Honor. May I? Sure. Go ahead.
RECROSS EXAMINATION BY MR. LINGAN: Sir, Im curious, was there also some concern
that Mr. Wolfes habeas counsel had maybe perhaps taken advantage of Mr. Barber? A Yes, sir.
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54 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 MR. LINGAN: THE COURT: witness be excused? MR. MACMAHON: THE COURT: He may, Your Honor. Thank you. Thank you, Mr. Newsome. May this
You are welcome to stay in the
courtroom or you are free to leave. THE WITNESS: Thank you, Your Honor.
(The witness was excused.) E N D O F E X C E R P T
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55 * * * * * CERTIFICATE OF REPORTER I, VICKI J. SATTERWHITE, a Verbatim Reporter do hereby certify that I took the stenographic notes of the foregoing proceedings which I thereafter reduced to typewriting; that the foregoing is a true record of said proceedings; that I am neither counsel for, related to, nor employed by any of the parties to the action in which these proceedings were held; and, further, that I am not a relative or employee of any attorney or counsel employed by the parties hereto, nor financially or otherwise interested in the outcome of the action.
_____________________________ VICKI J. SATTERWHITE Verbatim Reporter
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1 V I R G I N I A IN THE CIRCUIT COURT OF PRINCE WILLIAM COUNTY - x : : : : : : : : : - x

COMMONWEALTH OF VIRGINIA, -vsJUSTIN MICHAEL WOLFE, Defendant. -

CR12003732-00 thru CR12003737-00

2 * * * * * C O N T E N T S WITNESSES Samson Newsome DIRECT 3 CROSS 41 REDIRECT 50 RECROSS 53

Police Department. Q Investigating and working on the Justin Wolfe

case; correct? A Q Yes, sir. Thats correct.

And in early September of 2013 -- excuse me,

Did you take notes -- Is it your practice to

marked for purpose of identification first? THE COURT: Sure.

Mr. Lingan, do you see what --

No. 1 for this motion. Your Honor, I think the

MR. MACMAHON: transcript may be No. 1. THE COURT:

Oh, okay. If I can, Your Honor, I have a

MR. MACMAHON: copy for you too.

This is the second half of the

and Ill take the Courts copy. BY MR. MACMAHON:

Mr. Newsome, I think we have marked it No. 2

of a notebook; correct? A Yes, sir. This is a county police notebook

that we use for field notes, interviews, a lot of

September 11th. I dont recall if I was here a day before that

you may have started working on this case?

Just a moment and let me look at it.

9 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 Q You were aware that Judge Jackson had found

You were aware on or about September 6th that

And you were aware that Judge Jackson had

had indicated. Q And abhorrent with the interest of justice, do

you remember that language too? A Q No, sir. I dont.

And you know that the Fourth Circuit affirmed

Were you aware of that fact on or about

aware of that. Q Did you know on or about September 6th that

about Mr. Conway as well. A No, sir.

I cant say that I knew that.

I think you need to move on to the issues that

exception of possibly back in 2009, I had dealings with

13 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 Mr. Dullaghan. Q Im not asking that. If my question raises

Would you have the same answer if the question

With respect to Mr. Ebert and Mr. Conway, what

What is it -- Do you have any recollection of

September 6th that I would say it was on or about that

Let me get this straight.

What does it say -- Just translate. What is

That name has been in this

case for a very long time.

So being able to just look at

prior witnesses? A Yes, sir. That would be to try and make

The source of this information is Mr. Ebert

discussed in that meeting.

the discussion? A Again, I have no specific recollection as to

And how about the next line?

How about the next line.

Is that what that says?

What is your understanding of what legally

19 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 unavailable witnesses are under Virginia law? A My understanding of it is someone who is

Hes now rephrasing the question. Ill try. I thought he

MR. MACMAHON: answered the question.

Ill try again.

Hes assuming the Fifth.

21 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 A It may have been something that was said. I

than Mr. Ebert and Mr. Conway; right? A Yes, sir.

making things up if I said that. discussed. Q

Just something in passing as you drove on

we were driving, sir.

telephone conversation or sitting in an office. Q Right. But you do have a recollection of

it was September 6th. you would, sir. Q