Judge to throw out Fairfax Co. conviction of DC firefighter after claims of officer bias

A Virginia circuit court judge will throw out the 2019 conviction of a Black D.C. firefighter from prison, agreeing with claims by the firefighter’s lawyer and Fairfax County’s top prosecutor that the arresting officer lied about the traffic stop that led to his arrest and was racially biased.

Commonwealth’s Attorney Steve Descano filed a motion in support of defendant Elon Wilson’s petition to vacate judgment and release Wilson from prison. Descano said the arresting Fairfax County police officer lied about the reason why he stopped Wilson’s car and had a history of racially-motivated traffic stops.

Judge Daniel Ortiz on Friday agreed, saying that he wants Wilson released within a few days, since his “liberty is at stake.” And Descano said he won’t stop there; he said he has dismissed all pending cases attributed to former Fairfax County Officer Jonathan Freitag, and is seeking to vacate more than 400 cases in which Freitag was the arresting officer.

“I appreciate the judge’s ruling in our favor today,” said Wilson’s lawyer, Marvin Miller, outside the courthouse. He credited the police and Descano with making Wilson’s release possible.

“We couldn’t have gotten here without the Fairfax County Police Department doing a really good job with their investigation, not shoveling it under the rug, and dealing with it fairly,” Miller said, adding, “When prosecutors and police work together with defense lawyers, sometimes you get the truth. It’s a really good situation to show that the system can and does work.”

Descano described Wilson as “a young D.C. firefighter who had no criminal record and an infant son” who “was pulled over in an improper stop, and the full weight of the state came down to unjustly prosecute him.”

The commonwealth’s attorney added that Wilson “was the victim of a culture in this criminal justice system that prioritized conviction over justice — finality over justice. Myself and my staff have been working to change that culture since we took office.”

“The officer involved has a long history of improper and unjust stops with a racially disparate impact,” Descano said, and when his office got the information about the investigation into Freitag, they moved.

“Every night I went to bed thinking about [Wilson] and his family, and how we could reunite them, and how we could make sure this doesn’t happen again.”

In a statement Friday afternoon, Descano said, “On behalf of the system that failed them, I want to also apologize to Mr. Wilson and his family.”

The traffic stop

Wilson entered an Alford plea on April 17, 2019, and was found guilty of possession with intent to distribute a controlled substance and possession of a firearm while in possession of a controlled substance. He was sentenced to serve three years in prison. (In an Alford plea, the defendant maintains they are innocent, but acknowledges that the evidence against him or her would likely convince a judge or jury to convict them.)

Descano emphasized that no jury found Wilson guilty, and that he was being threatened with charges that carried a mandatory minimum sentence of 10 years. Under the “mixed-up logic of the state … it actually makes sense to take that hit,” Descano said Friday.

After receiving several complaints, an internal affairs investigation by the Fairfax County police found the arresting officer had been “untruthful” in describing why he initially stopped Wilson’s vehicle.

To make matters worse, Descano said in his motion, the former Commonwealth’s Attorney’s Office delayed disclosing the officer’s misconduct to the defense until after Wilson had been transferred from the local jail to prison.

Miller and Descano appeared Friday morning in a Fairfax County courtroom to ask the judge to immediately release Wilson from Nottoway Work Center. Wilson is being held in the low-security facility in Burkeville, 150 miles southwest of the courtroom.

Freitag, the officer who arrested Wilson, was never charged with any crime. He resigned in the spring of 2020 from the Fairfax County Police Department, according to police communications director Anthony Guglielmi.

In Freitag’s arrest report, the officer said he stopped Wilson’s vehicle “because it weaved over the solid yellow line one time and had windows tinted darker than the legally permissible limit,” according to Descano.

The investigation

A Fairfax County Police Department Internal Affairs Bureau investigation, in which police randomly selected 40 of nearly 1,400 traffic stops Freitag conducted, found “the basis used by the officer to justify the stop, as memorialized in the police report, was untruthful.”

According to Descano, during the internal review, Freitag admitted Wilson’s vehicle never crossed the solid yellow line, and he never tested the tint on WIlson’s window.

“The Officer further admitted that Defendant, who is African American, was seen leaving a recording studio the Officer was watching and that is why the Officer chose to stop him,” according to Descano’s motion.

Descano said according to the department’s internal investigation: “The Officer admitted to a third party to engaging in racial profiling in determining which motorists to stop and the evidence corroborated this admission.”

Several people accused the officer of planting drugs, and “threatened people with the authority vested in him as a law enforcement officer in an improper manner,” according to Descano.

While conducting its own criminal investigation — which resulted in no charges against the officer — Descano’s office asked the Federal Bureau of Investigation to review the circumstances behind traffic stops conducted by Freitag.

Descano said despite Freitag’s admission to falsifying information in police records, the former prosecutor’s office was slow to notify Wilson’s attorney that his client’s conviction may have been based on false testimony.

“This is significant because while Defendant was in local custody, this Court had the legal authority to modify the jail sentence and release Defendant,” wrote Descano.

The former prosecutor

Descano’s motion avoided mentioning the name of the former Commonwealth’s Attorney. Raymond Morrogh, who held that position at the time, was not immediately available for comment about Descano’s allegations.

The commonwealth’s attorney didn’t criticize Morrogh by name after the court appearance either, instead blaming “the culture of the system [that] has been allowed to manifest over 50-plus years.” Prosecutors, Descano said, have abdicated their responsibility to serve as a check on what the police are telling them.

“Myself and my staff have been working to change that culture since we took office,” Descano said. “[We] take our role as an independent check of the police and the other actors in the criminal justice system seriously.”

Freitag, in an earlier interview with The Washington Post, said “I was cleared of everything.” He added: “I resigned on my own terms. I didn’t want to work with the police department anymore.”