FERGUS FALLS, Minn. — Otter Tail County prosecutor Michelle Eldien said she had to drop a dozen cases in which a deputy, who was charged this week with driving under the influence of fentanyl and misconduct in connection to a deadly October vehicle pursuit, was a crucial witness.
Court documents filed in late December and early January note 12 cases were dismissed because prosecutors "became aware of Brady/Giglio issues related to a material witness."
That witness is Otter Tail County Sheriff's Deputy Kelly Backman, who now faces misdemeanor charges after investigators found fentanyl in his system after he was involved in an Oct. 2 police chase during which Cody James Freitag of Barrett, Minn., allegedly crashed into another vehicle in Fergus Falls.
The occupants of the vehicle Freitag hit after allegedly running a stop sign, 72-year-old Steve Christianson and his 71-year-old wife, Diane, died as a result of the crash, prosecutors said.
During a follow-up investigation after a pursuit by Backman led to a fatal crash, officers said they noticed a mix of hard drugs and prescription medications that appeared to be missing or were lied about in evidence reports, according to court documents. A toxicology report found fentanyl in Backman's system at the time of the chase, a criminal complaint against the 43-year-old deputy said.
Investigators also claimed in the complaint they found pipes for smoking drugs, grinders, burnt tinfoil, a scale and a small plastic bottle that contained a white powdery substance in Backman's desk and locker at work, along with a container that appeared to be consumed for drug use.
A Brady/Giglio issue means an officer's credibility has come into question, which means their testimony could not be used in court against a defendant. Prosecutors had no other choice but to drop the charges in cases that featured Backman as a key witness, Grand Forks defense lawyer Ted Sandberg said.
"That's the very hard medicine," he said, noting whether Backman was telling the truth about narcotics transfer has come into question. "There is absolutely a serious question of public safety."
The discovery is a positive thing because it could have gone on for years and escalated, said Sandberg, a former Detroit homicide prosecutor turned defense lawyer who is not connected to Backman's case.
"In the short-term, it might be painful for the community to have to digest, but at the same time this is how the system works, and it worked well. Police officers rarely get into this kind of trouble," he said.
Eldien would not comment on what type of charges were thrown out.
It would be tough to argue that the charges of vehicular homicide against the 31-year-old Freitag should be dropped in his case, Sandberg said.
"At some point, you have to start asking, 'Alright, but what was your conduct, sir, even if the police officer's conduct at the beginning was improper?" Sandberg said.
Freitag's attorney, Ruth Lee, said Thursday, Feb. 25, in a court hearing she is asking a judge to drop fleeing peace officer charges, citing the findings connected to Backman. She said she would argue Backman was not acting in a lawful capacity.
That hearing was continued to March 22. Backman is slated to appear the same day for an initial appearance.
If convicted of the DWI charge for allegedly driving with fentanyl in his system during the pursuit, and on the misconduct charge, Backman could spend more than a year behind bars.
He remains employed by the Otter Tail County Sheriff's Department but is on administrative leave.
Forum reporter April Baumgarten contributed to this report.