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Cop vs. Cops: The Case of Brandon Eller vs. The Idaho State Police

An Ada County jury will decide the fate of a history-making whistleblower lawsuit.

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The jury trial of Brandon Eller vs. Idaho State Police has all of the elements of a ripped-from-the-headlines episode of Law and Order: a fatal crash, alleged orders to destroy investigative reports and charges of retribution stemming from some of ISP's highest-ranking officers. Set to begin Monday, Aug. 14, in Idaho's Fourth Judicial District Court, the case pits ISP Detective Eller against the agency he has served, and continues to serve, with distinction for two decades.

Eller joined the state police force in 1997, rising through the ranks, becoming a master corporal and an ISP detective. He also helped create a ISP's nationally recognized Crash Reconstruction Unit in 2004. In fact, Eller was the longest-serving member of the CRU and an award-winning policeman who, according to court records, went "above and beyond normal duty."

Things took a turn in 2012 when Eller said he was called a "disgruntled employee," told to "soften opinions," was denied a pay increase and relegated to working nights and weekend shifts.

"When Brandon Eller first told me about an ISP directive to destroy draft reports, quite frankly, I didn't believe it at first," said attorney Erika Birch of Boise-based Strindberg & Scholnick, LLC, representing Eller. "Then I read the actual email of that directive. It's just one of those things that seems too incredible."

Eller's fallout with ISP began the night of Oct. 18, 2011, when Barry Johnson, 65, was about to turn his 1983 Jeep into the driveway of his home on a rural two-lane highway near New Plymouth. Suddenly, a vehicle driven by Payette County Sheriff's Deputy Scott Sloan, responding to a 911 call and traveling at speeds over 100 miles per hour, tried to pass Johnson on the left. The deputy's vehicle crashed into the driver's side of the Jeep. Johnson was ejected and pronounced dead at the scene due to a massive head injury,.

Because the fatality involved a Payette County Sheriff's Deputy, ISP took over the investigation. The CRU team's initial investigation indicated Sloan had made an unsafe pass without "due regard for the safety of all persons." However, after the original CRU investigator met with two ISP superiors, the report was "revised," allegedly to lessen the implication of error on the part of Sloan. Eller's involvement in the investigation came 43 days after the crash, when he was assigned to interview Sloan. Payette County prosecutors charged Sloan with vehicular manslaughter, and when Eller was called as a key witnesses during an April 2012 preliminary hearing, much to the chagrin of ISP superiors, he testified that Sloane had been driving Oct. 10, 2011, "without due regard for the safety of all persons." .

"I can't believe that the Idaho State Police is going to send a deputy to prison," said ISP Lt. Colonel Kendrick Wills, upon hearing of Eller's testimony. Another ISP officer—from inside the courtroom—sent a text message to headquarters stating that some of the testimony was throwing the agency "under the bus" and that Eller had "laid us out." According to a deposition, a member of ISP command staff commented that, following his testimony, Eller would "be lucky to have [his] job working nights and weekends."

Eller said pressure from superiors increased when, in July 2013, an email sent from ISP Major Kevin Hudgen to all district captains directed that henceforth, "Crash Reconstruction Unit members will not keep draft copies of their reports in the official case file. As is current practice within ISP, those reports should be destroyed." Eller immediately questioned the ethics of the directive, but was told "the directive was coming from headquarters," and "working case files should be destroyed." He later learned CRU investigation CDs had been destroyed, including reports of at least 30 fatal crashes investigated by the unit.

Meanwhile, the case against Sloan was crumbling. In 2013—a year after Sloan was charged with Johnson's death—the Payette County prosecutor's office dropped the case, citing frustration over too many conflicting crash investigation reports coming from ISP. Sloan has since retired from law enforcement.

Eller's professional life continued to deteriorate. In one performance review shortly after his courtroom testimony, Eller was accused of causing "dissention within the ranks" and that he "would be well served in the future by softening his opinions on confrontational matters." In October 2013, Eller and other members of the CRU were informed the unit was being disbanded and they would return to regular duty shifts, including nights and weekends. In the years that followed, Eller said his request for a salary increase was denied without explanation.

"It's interesting to note that Brandon's wife Kristi is also a police officer here in the Treasure Valley. We like to think law enforcement still draws the kind of people who have a strong sense of right and wrong and a high-level ethical compass," Birch said. "Brandon and Kristi talk all the time about integrity and ethics with their two young kids, but it's not just about the ethics of our personal lives; it's our professional lives. They tell their kids that we all should expect every law enforcement officer to do the right thing—the ethical thing."

Eller's personal and professional life will be on the line Aug. 14, when he faces his colleagues and superiors in an Ada County courtroom.

This history-making trial will intersect with another bit of history: a total solar eclipse on Monday, Aug. 21. Attorneys representing Idaho State Police have asked the court to put the trial on a one-day hiatus, because according to attorneys, "every commissioned ISP officer will be out on the road" during the eclipse, so they won't be available as witnesses.

"We will get this trial done, one way or another," Idaho Fourth Judicial District Court Nancy Baskin told attorneys during a July 31 pre-trial hearing.

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