Idaho

Jurors start work on rare task: Decide if Idaho police retaliated against 1 of their own

ISP whistleblower Brandon Eller during the first day of trial Monday at the Ada County Courthouse in Boise. Eller claims the Idaho State Police retaliated against him after he raised concerns about the investigation of a fatal crash involving an Idaho sheriff’s deputy.
ISP whistleblower Brandon Eller during the first day of trial Monday at the Ada County Courthouse in Boise. Eller claims the Idaho State Police retaliated against him after he raised concerns about the investigation of a fatal crash involving an Idaho sheriff’s deputy. kgreen@idahostatesman.com

An investigation into a 2011 crash in which a county sheriff’s deputy struck and killed a civilian divided the Idaho State Police in two. Some at the agency thought the civilian was at fault, while others believed the deputy was.

Now those two camps are facing off in court in a rare occurrence: a whistleblower case against an Idaho state agency that actually reached a jury.

At the center of the case is an Idaho State Police crash investigator who has accused the agency of retaliating against him for claiming it meddled in that fatal crash investigation. The trial, estimated to take at least two weeks, is taking place at the Ada County Courthouse before 4th District Judge Nancy Baskin.

Trial got underway Monday with jury selection and opening statements from both parties.

Baskin placed a gag order on the case last week, meaning none of the attorneys can publicly discuss the case until after the verdict is read.

1 crash, conflicting views

 ‘Those boys will be lucky to have a job working nights and weekends,’ ” attorney Erika Birch said during her opening statement on Monday. “Those words came from an Idaho State Police commander sitting at Idaho State Police headquarters on April 13, 2012.”

That was the day ISP reconstructionist Brandon Eller, who still works for the agency, testified at a preliminary hearing on a vehicular manslaughter charge filed against Payette County Sheriff’s Deputy Scott Sloan. The deputy was driving his Ford Crown Victoria at speeds in excess of 110 mph when he crashed into Barry Johnson, killing him on Oct. 18, 2011. The special prosecutor on that case eventually dismissed the charge, saying his hand was forced by conflicting ISP reports.

On Oct. 18, 2011, Payette County Sheriff's Deputy Scott Sloan was involved in a fatal crash while driving in his patrol car at 115 mph, responding with lights and sirens to a 911 call. Sloan hit Barry Johnson as Johnson turned into his driveway.

In court documents and previous testimony, all involved in the Sloan investigation have agreed it had problems. But exactly what those errors were remains a point of disagreement.

ISP leadership believed the initial crash report was incomplete — in particular, missing references in the list of causes to the fact that Sloan’s lights were on and that Johnson had been drinking.

But during the preliminary hearing, Eller testified that Johnson’s blood alcohol level — below, at or above the legal limit, according to various tests — was not a cause of the crash and that Sloan was driving in a reckless and unsafe manner while en route to a 911 call.

“We want you to look how Idaho State Police perceived and treated Brandon before he gave that testimony on April 13, 2012, and how Idaho State Police perceived and treated Brandon after that testimony,” Birch, Eller’s attorney, told the jury.

Birch said three people at ISP who didn’t fault Sloan have since been promoted. Lead crash investigator Trooper Justin Klitch is now a detective, Capt. Steve Richardson retired as a major, and Lt. Sheldon Kelley was promoted up to lieutenant colonel.

“(Kelley) is now second in command,” Birch said.

And what happened to those who were critical of Sloan and ISP?

“They all lost their careers,” Birch said.

0815 ISP Whistleblower Tria (3)
Attorney Erika Birch shows off an ISP annual Samson Award given in 2011 to her client, ISP whistleblower Brandon Eller. Eller claims the Idaho State Police retaliated against him after he raised concerns about the investigation of a fatal crash involving an Idaho sheriff’s deputy. Kyle Green kgreen@idahostatesman.com

Eller was reassigned to night and weekend patrol and denied a promotion to sergeant. Another Sloan crash reconstructionist, Cpl. Quinn Cormack, also was reassigned to nights and weekends. Crash reconstruction unit leader Fred Rice retired early.

ISP’s attorney, Andrew Brassey, told jurors that Eller “claims a whole lot of things happened to him because of [the] Sloan [investigation].”

“Eller had a huge dislike that he had to go out on patrol,” Brassey said. But that decision was made when the crash reconstruction unit was separately restructured and reorganized, the attorney said.

Eller missed out on the promotion to sergeant because it was “mathematically impossible” to get his application score high enough, Brassey said. But two months later, when Eller applied to be a detective, he scored high enough to get the promotion, receiving it in May 2016.

The state police agree that Eller was within his rights to raise concerns about the Sloan investigation, Brassey said — considered “protected activities” in the context of the whistleblower case.

“So, ladies and gentlemen, you are going to hear a lot of things in this case,” Brassey said. But where Eller’s career has gone in recent years is not reprisal for his criticisms, the attorney continued.

Eller investigated

Three weeks after he served ISP notice that he intended to sue, ISP told Eller that he was under investigation internally for alleged harassment of another trooper, Eller claims. The harassment had reportedly occurred eight months prior.

The investigation found the claim “unsustained,” said Birch, who plans to call the ISP trooper who allegedly made the complaint as a witness.

“She never used the words ‘sexual harassment,’ ” Birch said. “She never wanted, nor expected, any formal sort of investigation. She believes the whole thing was blown out of proportion.”

ISP was just following procedure when it performed the investigation, Brassey told the jury.

“There is not one shred of, not one iota of evidence that it had anything to do with anything other than a woman reporting something to her supervisor. She is going to get drug down here [to testify] because the allegation is it is somehow tied to Sloan,” Brassey said.

0815 ISP Whistleblower Tria (5)
Idaho State Police attorney Andrew Brassey looks toward whistleblower Brandon Eller during trial Monday at the Ada County Courthouse in Boise. Eller claims the Idaho State Police retaliated against him after he raised concerns about the investigation of a fatal crash involving an Idaho sheriff’s deputy. Kyle Green kgreen@idahostatesman.com

Other lawsuits

Eller’s is one of three lawsuits to claim ISP tried to cover up its investigation of the crash. One of the lawsuits, a whistleblower claim filed by Rice, was dismissed; the other, a wrongful death case filed by Johnson’s daughter, Jackie Raymond, is pending in Payette County.

The jury in Eller’s case will not make any conclusions regarding Sloan’s or Johnson’s culpability in the 2011 crash. It is focused on how ISP handled Eller following the investigation and as he raised other concerns about the agency over time.

Raymond quietly sat in the courtroom on Monday watching the proceedings.

“I am here to support Brandon,” she told the Statesman. “He is going through hell because he stood up. I back him 100 percent for being an outstanding cop. He obviously has integrity and that is what makes him a good cop.”

Cynthia Sewell: 208-377-6428, @CynthiaSewell

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