Should prosecutors be able to get away with murder? We're about to find out.

Wolfe v. Clarke is about a murder conviction and death sentence that unraveled under the force of the truth. It is a case about state prosecutors getting caught hiding exculpatory evidence, and getting scolded for it by the federal courts, and then violating the federal court order sanctioning them by threatening a witness and spoiling the retrial of a man they helped to wrongly convict. It is a case where prosecutors did all of this, right up to the brief they filed with the justices, without an evident shred of public contrition for their improper conduct.

If the Supreme Court lets Virginia get away with this, your fair trial rights will never be the same.
All of this makes me think one of two things will likely happen to Wolfe v. Clarke. Either at least four justices will agree that the prosecutorial misconduct that occurred here is so egregious that it merits review, in which case we’ll get an oral argument later this year and a ruling sometime after that. Or the Court will turn its back on this case and we will get a pointed dissent from the denial of certiorari from Justice Sotomayor in which she laments the Court's continuing abdication of its role as guardian of Sixth Amendment rights.

There is a simple factual narrative about the case—about what state prosecutors were willing to do first to gain and then to regain a murder conviction against Justin Michael Wolfe. And there is a more complex legal narrative about the standards the federal courts ought to apply when prosecutors behave as badly as they have in this instance. But don’t be fooled by the distinctions: If the Supreme Court lets Virginia get away with what has been done to Wolfe, the fair-trial rights of all of us will be jeopardized