Fairfax County prosecutors are moving to throw out more than 400 criminal convictions based on the testimony or work of a former patrol officer who is accused of stealing drugs from the police property room, planting drugs on innocent people and stopping motorists without legal basis, court filings show. In a hearing Friday, a Fairfax judge said he was inclined to vacate felony drug and gun convictions against a former D.C. firefighter and order him released from prison next week after serving nearly two years because of the actions of former officer Jonathan A. Freitag.
Fairfax police said they began investigating Freitag after receiving a tip about him in July 2019. The police department took him off the streets. Freitag, now 25, resigned in May 2020 after the FBI had joined Fairfax County in a criminal investigation of him. But even after The Washington Post first reported the allegations against Freitag in June 2020, he was hired by the Brevard County Sheriff's Office in Florida in August 2020. The Fairfax human resources department reported to Brevard that the former officer had never been "subject to disciplinary action" and "there are no disciplinary records in his file."
Freitag was fired by the Brevard County sheriff on April 1 after The Post inquired about his status there. Brevard Sheriff Wayne Ivey then sent a scathing two-page letter to interim Fairfax police chief David M. Rohrer accusing Fairfax of providing "misleading representations to our legitimate efforts to investigate" Freitag. Ivey said it was "outrageous that an individual such as Mr. Freitag, with a history of alleged misconduct at the Fairfax County Police Department, had become a member of our agency and placed in a position that may have negatively impacted our citizens due to your agency's misrepresentations."
See the letter from the Brevard County sheriff to Fairfax County
Fairfax County's human resources department provided Freitag with a letter soon after his resignation which said, "You resigned from the position in good standing, your employment was entirely favorable and you are eligible for re-hire," and Freitag in turn submitted that to Brevard County, documents released by Brevard show. Fairfax police said that letter led Brevard to query the human resources department instead of the police department. Brevard is now investigating the cases Freitag made during his seven months there, sheriff's office spokesman Tod Goodyear said.
Fairfax prosecutors said Freitag had been involved in 932 total cases during his three years as an officer, mostly traffic and misdemeanors, resulting in about 400 convictions. Seven were felonies, prosecution spokesman Ben Shnider said. Prosecutors have dismissed at least 21 cases which were pending, including a case where a man was charged with felony assault on Freitag, but the former D.C. firefighter Elon Wilson is the only defendant currently incarcerated. Wilson's case would be the first conviction to be vacated as a result of Freitag's actions.
Freitag has not been charged with any crimes, but prosecutors said a criminal investigation of him is ongoing. In phone and text conversations, Freitag denied any wrongdoing. No direct evidence of any misdeeds by Freitag was presented in a court hearing Friday on Wilson's case, beyond the documents that the officer falsely claimed Wilson committed a traffic violation as a reason to stop him and search his car.
"This is all news to me," Freitag said of the allegations laid out by Fairfax prosecutors. Freitag "admitted to falsifying information in police records" to police internal affairs investigators, and "admitted to a third party to engaging in racial profiling in determining which motorists to stop," according to prosecutors.
"I have parted ways with Fairfax," Freitag said. "Clearly [Fairfax Commonwealth's Attorney] Steve Descano has an agenda. I will continue to stick by my word of me doing nothing wrong."
"What occurred in this case is a disgrace of monumental proportions," Descano wrote in a court brief, "and a stain on the good work of many honest police officers and prosecutors. The conviction and sentence in this matter were unjustly obtained and if left uncorrected will undermine confidence in our system of justice."
After Friday's hearing, Descano said Wilson had a 5-month-old baby when he was arrested and had been a valued firefighter.
"I just want to apologize to Elon Wilson and his family for what they've endured, because of the failings of the criminal justice system," Descano said.
Fairfax County Commonwealth's Attorney Steve Descano speaks to the media after a hearing in which he sought to vacate the drug conviction of a D.C. firefighter, obtained by a former Fairfax County police officer. (Tom Jackman/The Washington Post)
Troubled officers leaving one department and then turning up at another has been cited by justice reform advocates as a problem with policing. There is a national database of decertified officers, and Virginia has one too, but Freitag resigned before he could be formally decertified. Beginning last month, Virginia toughened its criteria for decertification to include officers who resign for an act "that compromises an officer's credibility, integrity, honesty, or other characteristics that constitute exculpatory or impeachment evidence in a criminal case." But that law wasn't in effect when Freitag left Fairfax last year.
Internal police records provided by Freitag's lawyers show he was the subject of five internal affairs inquiries in 2018 and 2019, including two involving his allegedly sloppy handling of traffic stops. But no complaint was filed in the traffic stop involving Wilson, who was pulled over by Freitag near a recording studio that had been the scene of violent incidents. When Freitag searched the car during the April 3, 2018, stop, he found a handgun, marijuana and a bag with more than 450 tablets of oxycodone in the glove compartment, court records show.
Freitag said he stopped the car because Wilson had crossed the center line, then smelled marijuana as he approached. Wilson said the drugs and gun belonged to his passenger, a juvenile whose charges were later dropped. Wilson, then 23, was charged with drug dealing, possession of a weapon while possessing drugs, contributing to the delinquency of a minor and failure to maintain control of his vehicle. He was immediately suspended by the D.C. fire department.
Facing a possible 10-year sentence on gun and drug charges, Wilson entered a plea and was found guilty. He was sentenced in July 2019 to three years and one month in prison. Descano said Wilson might have been innocent of the charges, because the passenger admitted the drugs and gun were his, but faced with 10 years in prison and a newborn at home, he said Wilson's decision to enter a plea was understandable.
That same month, according to police records, a citizen filed a complaint against Freitag "alleging multiple acts of misconduct," which aren't specified. As a result of that complaint, Fairfax police opened a second investigation over Freitag's traffic stops and reviewed more than 150 in-car videos of his stops in June and July 2019, showing he had failed to document whom he'd stopped or when he'd searched cars. He was interviewed by internal affairs in September 2019 and "acknowledged [he] primarily conduct[ed] pretextual traffic stops and look for 'narcotics, guns, any stolen property, and wanted people.' " The Wilson case, from 2018, was not part of this internal investigation.
Police then notified Fairfax prosecutors that Freitag was under investigation for lack of truthfulness. Former chief deputy Commonwealth's attorney Casey Lingan said his office then dismissed a number of Freitag's pending cases. Descano said Lingan should have immediately pursued Wilson's case, while Wilson was still in the Fairfax jail and subject to local jurisdiction. Once Wilson was shipped to state prison, undoing his conviction involved more complex legal filings.
Lingan said the investigation into Freitag was in its early stages in the fall of 2019, and he had assistant prosecutors notify defense attorneys, such as Wilson's, that Freitag was being investigated but no findings had been made against the officer. Lingan said he was told in a meeting with police and the Fairfax County attorney that a full review of all of Freitag's traffic stops was underway but would take a long time. Lingan said he suggested the FBI be brought in to help parse the massive amount of video and reports generated by Freitag, and they were.
Marvin D. Miller, Wilson's attorney, had been told Freitag was under investigation, but nothing more. In early 2020, after Descano became the new Fairfax prosecutor, Miller filed a motion seeking information about Freitag. Descano said this was the first he'd heard of the case. Descano learned that in a random review of 40 of Freitag's traffic stops, comparing in-car video footage to his police reports, "the basis used by the officer to justify the stop, as memorialized in his police report, was untruthful. Moreover, there was a racial component with respect to the drivers that the officer unlawfully stopped," his legal brief states.
Freitag's lawyer, Brandon Shapiro, sharply objected to the "racial component" allegation, as did Freitag. Shapiro supplied the 22-page internal complaint against Freitag to show that race was never mentioned in the charges against him. The April 2020 police complaint does say, "your complete disregard for the law and unethical conduct was clearly identified on multiple occasions."
Miller said the internal affairs investigators interviewed a woman who said Freitag admitted racial motivation in his stops, and Descano said Freitag had "potentially racially biased motive and racially biased impact ... They looked at 1,400 stops. When you're looking at the stops, a very clear pattern emerged."
Descano established a team of prosecutors to review the police internal files, both to provide the files to Miller and to shield them from prosecutors who might later prosecute Freitag. Prosecutors may not use statements given to internal affairs investigators in criminal cases.
In a brief supporting Wilson's release, Descano and his deputy Kyle Manikas said the Fairfax police turned over 75 gigabytes of material.
"The material revealed strong indicia," the prosecutors wrote, that Freitag systematically stopped motorists without a valid legal basis, falsified his police reports and "admitted to a third party to engaging in racial profiling in determining which motorists to stop and the evidence corroborated this admission."
Shapiro said Freitag was asked once by investigators about any racial component to his policing, denied it and wasn't accused of it by the police.
"Multiple people accused the officer of planting drugs," Descano and Manikas wrote. "In several cases handled by the officer, narcotics went missing from the property room, including cocaine and marijuana. The officer repeatedly edited police reports in cases where the narcotics went missing, sometimes over 100 times in a single case." No evidence of this has been publicly released.t
Freitag, the son of a retired Arlington police officer, started working for Fairfax as a 19-year-old police cadet in 2015, then became an officer in March 2017, soon after he turned 21. In September 2019, he was placed on administrative duty and later filed a grievance for the length of time he'd had to wait without pay.
In April 2020, Freitag's commanders recommended his termination, the internal police report shows. Instead, Freitag's lawyers negotiated a settlement agreement with Fairfax County's attorneys, provided by Shapiro. Freitag agreed he would provide a two weeks notice of resignation, and Fairfax agreed that "All documents associated with the pending Internal Affairs investigation against Freitag will remain in the FCPD's Internal Affairs administrative file and will not be included in Freitag's personnel and/or Human Resources files."
Soon after, Freitag sought and obtained a letter from Fairfax County's human resources department, on county letterhead dated June 9, 2020, stating that he had "resigned from the position in good standing, your employment was entirely favorable and you are eligible for re-hire."
The next day, Freitag told The Post in an interview, "I was cleared of everything. I resigned on my own terms … IA did an audit of my traffic stops and I was cleared of any wrongdoing." A story reporting that Freitag was being investigated by the police and FBI was published on June 29, but Brevard County apparently never saw it, Goodyear said.
Ex-Fairfax police officer under FBI investigation, made racially motivated traffic stops, prosecutor says
In July, Freitag submitted the "good standing" letter to the Brevard County sheriff. In August, Brevard sheriff's personnel investigators contacted the author of the letter in the human resources department — not the police department — and asked for "any disciplinary actions or Internal Affairs investigations," according to Ivey. Brevard was told "there was no reason why the applicant should not work for the Sheriff's Office," Ivey said.
Brevard continued to make multiple attempts to secure copies of Freitag's internal affairs file, and spoke to members of the Fairfax police on multiple occasions. "As of today, all attempts of procuring the records have been unsuccessful," Ivey wrote.
Fairfax police spokesman Anthony Guglielmi said Fairfax "internal affairs was never contacted by the Brevard County sheriff." Guglielmi said Fairfax had confirmed that the "good standing" letter led Brevard investigators to Fairfax's human resources department rather than the police internal affairs or personnel units. Guglielmi said in Freitag's police personnel file was an "exit interview form" which states, "Did employee leave in good standing? No ... Rehire Recommendation? No."
"Due to administrative errors, this information was not contained within the employee's human resources file," Guglielmi said, "and the Brevard County inquiry was not properly forwarded to the police department from the Fairfax County central personnel office when it arrived ... We take this matter very seriously and have implemented procedural safeguards to ensure it cannot happen again."
A photo of Freitag in a Brevard County squad car was posted on Facebook, leading The Post to ask Fairfax police about Freitag's status. Guglielmi said Fairfax then contacted Brevard County, which promptly fired Freitag, who was still a probationary deputy. A letter to Freitag from the sheriff says, "you intentionally provided inaccurate, incomplete and blatantly deceptive information to our investigators."
Miller filed a motion to have Wilson's conviction thrown out. Miller said video of the traffic stop showed Wilson never crossed the center line and the search of the car was illegal. Descano and Manikas then filed their motion supporting Wilson.
In a hearing Friday, Fairfax Circuit Court Judge Daniel Ortiz asked whether Miller should have seen and challenged the video evidence in 2018, but Miller said he didn't know the video existed and it wasn't turned over to him. He said prosecutors threatened to seek maximum sentences against Wilson if he fought the case with a suppression motion, and his charges already carried a 10-year minimum, so Wilson took the plea deal.