A former D.C. firefighter was released from a Virginia prison Wednesday after a Fairfax County judge vacated his 2019 conviction on drug and gun charges, which were based on falsehoods told by a former Fairfax County police officer now under state and FBI investigation. Fairfax County prosecutors said last week they hoped to clear more than 400 convictions obtained by the patrol officer, but the firefighter’s was first because he was the only one still behind bars.
The investigation into former officer Jonathan A. Freitag demonstrated “an alarming chain of events,” Fairfax County Circuit Court Judge Daniel E. Ortiz wrote in an opinion issued Tuesday night, which evolved into “an extensive trail of fraud and deception … Freitag’s false statements undermined judicial integrity in the public’s eyes and left a man sitting in prison for almost two years.” Less than 24 hours after the judge’s order, Elon J. Wilson was released from the Nottoway Work Center in southern Virginia, according to the state Department of Corrections.
Wilson, 26, was arrested by Freitag after driving with a teenage cousin in Fairfax County early one morning in April 2018. Freitag claimed in his reports that Wilson had driven across the yellow line, took too long to pull over after Freitag turned on his lights, and had illegally tinted windows, court records show. Freitag wrote that he smelled marijuana in the car, and so pulled the two occupants out and searched the car, where he found a bag of 450 OxyContin tablets and two handguns in the glove compartment, court records state.
Wilson told police that the drugs and guns belonged to his passenger, but Fairfax County prosecutors threatened him with 10 years in prison for distributing drugs and possessing a gun while selling drugs, his lawyer said. Wilson had a 5-month-old baby, and so chose a plea bargain in which he received a three-year sentence, which he’s been serving since July 2019.
But around the same time, Fairfax County police received a complaint about Freitag and soon began reviewing the in-car video of some of his traffic stops. Video of Wilson’s stop had not been provided to Wilson or his attorney. By September 2019, the police took Freitag off the street, launched a review of all of his traffic stops, and notified Fairfax County prosecutors that he was under internal investigation. The prosecutors dismissed a number of pending cases, and the FBI was brought in to assist with looking into Freitag’s actions, which allegedly include removing drugs from the police property room and falsifying his reports.
Freitag, now 25, had only been an officer for two years when he came under investigation, and by April 2020, Fairfax County police were looking to fire him for multiple issues related to sloppy traffic stops and poor reports, internal affairs reports show. Instead, Freitag resigned in May, and obtained an agreement from the Fairfax County attorney that no internal affairs files would be placed in his general personnel file. He has not been charged with any crimes, and no evidence of any wrongdoing has been publicly presented beyond prosecutors’ allegations in court filings.
Freitag has repeatedly claimed he did nothing wrong. “This is all news to me,” he said after prosecutors said they would seek to undo 400 cases related to him, mostly misdemeanors but also seven felonies. “I have parted ways with Fairfax. Clearly [Fairfax Commonwealth’s Attorney] Steve Descano has an agenda. I will continue to stick by my word of me doing nothing wrong.”
Freitag then was hired in August by the Brevard County Sheriff’s Office in Florida, which apparently only consulted with the Fairfax County human resources department, not with the police internal affairs unit, though Brevard had asked Fairfax County to supply all internal affairs files. Fairfax County police said human resources employees did not forward the Brevard inquiry to the police. Freitag was fired April 1 when Brevard learned he was under federal investigation, and Brevard authorities said they are also reviewing his cases.
In early 2020, Wilson’s lawyer Marvin D. Miller filed a motion demanding information on Freitag. Miller acknowledged Tuesday that there is no rule allowing discovery once a criminal case is over, but he tried it anyway. The prosecutor Descano agreed and set up a process for Fairfax County police internal affairs files to be provided to Miller. After seeing the previously undisclosed video of Wilson’s traffic stop, showing Wilson did not cross the centerline, promptly pulled over when Freitag signaled, and didn’t have illegally tinted windows, Miller made a motion to vacate Wilson’s conviction. Evidence obtained from an illegal stop may not be used against a defendant.
“Freitag admitted” in an interview with internal affairs, Ortiz wrote, “that the stop was pretextual.” Descano said the review of Freitag’s traffic stops showed they were severely racially disparate, and many of the drivers he pulled over were Black, though the prosecutor did not provide a breakdown. Wilson is Black. Freitag has denied any racial bias.
“The Internal Affairs investigation further uncovered widespread misconduct by Freitag in numerous traffic stops,” Ortiz wrote. “Additionally, Internal Affairs discovered Freitag filed false reports to hide that he removed drugs from the property section.”
Miller said “to get that information, and to get relief for what happened in this case, is extremely rare in this country.” Miller is a former director of the National Association of Criminal Defense Lawyers. “I’m very appreciative that the police didn’t hide the ball, that the prosecutors came forward and the judge issued a ruling of justice,” he said.
Miller said Tuesday night that he had not yet spoken to his client, but that Wilson’s family was thrilled.
Fairfax County prosecutors supported Miller’s motion to vacate the conviction and release Wilson. Ortiz held a hearing Friday, but didn’t immediately rule on the motion. Afterward, Descano apologized to Wilson, who had no criminal history and a good record as a firefighter. “Unfortunately,” Descano said, “Mr. Wilson’s story is indicative of a destructive culture that characterized our criminal justice system for too long.” He said after Freitag made an improper stop of Wilson, “the power of the state was then leveraged against him to improperly coerce him into a plea deal that stripped him of his freedom.”
Ortiz then issued a written opinion and order, which also cited “the coercive contribution of mandatory minimum [sentences] in procuring this unjust result.” Between Freitag’s false claims and the lengthy potential prison sentence, Ortiz wrote, “this case is a stark warning to parties at every critical juncture of the judicial process that they must remain vigilant to system malfunctions to ensure that justice prevails.”