Judge orders release of Black DC firefighter, says conviction obtained by fraud

A Fairfax County Circuit Court judge has overturned the 2019 conviction of a Black D.C. firefighter, saying the case was built on false representations from the arresting county police officer.

The opinion and ruling from Judge Daniel Ortiz was expected after he announced Friday he was inclined to rule in favor of the defendant, Elon Wilson.

Ortiz wrote Wilson had “demonstrated by clear and convincing evidence that a fraud was committed upon the Court in obtaining Wilson’s guilty plea.”

Commonwealth’s Attorney Steve Descano had filed a motion in support of Wilson’s petition to vacate judgment and release Wilson from prison.

Arresting officer Jonathan Freitag’s arrest report  following the April 3, 2018, traffic stop said Wilson’s vehicle “drove over the solid line” and had “very dark-tinted windows.”

Police found drugs and and a gun in the car. Wilson entered an Alford plea on April 17, 2019, and was sentenced to serve three years in prison. An Alford plea is a plea in which the defendant does not admit guilt, but acknowledges that a judge or jury would likely convict them.

After receiving several complaints, an internal affairs investigation by the Fairfax County Police Department found Freitag had been untruthful in describing why he pulled Wilson over, and he acknowledged in an interview that he had engaged in racial profiling in at least one traffic stop.

Descano filed a motion joining Wilson’s attorney in requesting the conviction be overturned. In the motion, Descano was critical of his predecessor, saying the office of the former commonwealth’s attorney failed to act diligently, and that prosecutorial delays resulted in Wilson being transferred from the local jail to prison.

Ortiz’s opinion, however, said prosecutors in then-Commonwealth’s Attorney Ray Morrogh’s office “dismissed numerous cases where Freitag was the prime witness” upon learning of his misrepresentations.

In addition, Morrogh’s office suggested the FBI investigate previous traffic stops by Freitag. Sources say the federal investigation continues.

Freitag was never charged with any crime. He resigned in the spring of 2020 from the county police department, according to police communications director Anthony Guglielmi.

The judge said the officer’s initial false report had many consequences.

Freitag’s fabricated grounds for the stop, police report, and warrant made under oath fundamentally tampered with the judicial machinery and subverted the integrity of the court itself. Freitag’s misrepresentations tainted every part of the judicial mechanism, from the charges against Wilson, to the magistrate’s [probable] cause determination, to the Commonwealth’s plea bargaining tactics. His false grounds for stopping Wilson contravened a key aspect of the federal Constitution, from which all states derive their power and legitimacy. Freitag’s actions betrayed the public’s trust in its institutions and the court.

Descano said he will seek to have more than 400 convictions overturned in which Freitag provided key testimony, though he acknowledged, “That’s going to be very hard, because Virginia law doesn’t really have a great mechanism to do that. So what this case really drives home, moving forward, is that we really need a change in the law in Virginia that allows [second] looks to be more readily available, and to be done much, much more quickly.”

The Wilson case is an example of the reform that Descano, who is in his first term as the county’s top prosecutor, is seeking.

“Unfortunately, Mr. Wilson’s story is indicative of a destructive culture that characterized our criminal justice system for too long,” Descano said in a statement.

Ortiz, in his opinion letter, said mandatory minimum sentences give prosecutors a powerful negotiating tool in plea bargaining that a defendant can rarely, if ever defend against.

In the present case, the availability of stringent mandatory minimums forced Wilson, who had a five-month-old child at the time, to decide between a minimum of two years of incarceration or face the risk of ten years. The Commonwealth leveraged the preliminary and suppression hearings, both critical pretrial stages, on threats of automatic increases in prison time if Wilson was found guilty. All of this was done without any factfinder reviewing mitigating factors. Such a forceful tool undercuts the constitutional mandate that a plea be mandatory.

Descano was a vocal opponent of the death penalty, which was outlawed in Virginia last month, and has called for a ban on minimum sentences. Virginia’s House and Senate passed different versions, this year, without consensus. “If there was less of a willingness to use the power of the state and the coercive power of mandatory minimum sentences,” he said, “this outcome could have been avoided, likely even with the false statement.”

In overturning the conviction, and ordering his release from prison, Judge Ortiz suggested what happened to Wilson could happen again.

“What occurred in this case exposed a failing in our criminal justice system. When the rules work together, they turn the gears of the judicial machinery toward justice. Instead, this officer’s false representations disrupted the entire mechanism, forcing the rules into conflict … 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.”

Neal Augenstein

Neal Augenstein has been a reporter at WTOP since 1997. Through the years, Neal has covered many of the crimes and trials that have gripped the region. Neal's been pleased to receive awards over the years for hard news, feature reporting, use of sound and sports.

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