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.”
