With a jury suspicious of police and conscious about race, the state had to be feeling good about their chances as the murder trial of Robert “Chip” Olsen got underway. Now, after just two days of testimony, prosecutors find themselves deep in a hole of their own making.
State witness Pedro Castillo Flores, who watched the former DeKalb County cop shoot Anthony Hill on March 9, 2015, testified that he believed Olsen was about to be attacked by the Afghanistan War veteran. That bolsters Olsen’s defense — that he acted in self defense when he shot Hill twice as he ran toward him naked.
The state is expected to wrap up its case by Wednesday, so it’s too early to predict whether the damage will be long-lasting But legal experts said the testimony definitely broke in the defense’s favor.
“If a juror wants to find reasonable doubt, they found it (on Friday),” said Atlanta criminal defense attorney Esther Panitch.
Castillo Flores, a maintenance worker at The Heights at Chamblee apartment complex, said Olsen appeared panic-stricken after shooting Hill.
He was also emotional, choking back tears and repeating “Oh my God!” when it became clear Hill was critically injured, Castillo Florres said. The 26-year-old aspiring music producer died at the scene.
That testimony didn’t square with the portrait painted by prosecutor Buffy Thomas in her opening statement. She said Olsen shot and killed Hill because he was uncomfortable with his nudity.
“Well, you gotta say something. They can’t say he was scared,” said veteran DeKalb defense attorney Keith Adams, explaining that if Olsen acted out of fear that would not be enough to support a murder charge.
“The state has got to suggest what was really going on in this man’s head,” he said.
Police officers are trained to assume the worst when they encounter a nude subject, said former prosecutor Philip Holloway, so it would be natural for Olsen to be unsettled, though not in the way the prosecution suggested.
“This whole case is problematic,” said Holloway, now a defense lawyer. “We don’t have malice. We don’t have premeditation. At best, it appears he panicked.”
The state was able to establish that none of the witnesses who observed the incident felt threatened by Hill, who had recently stopped taking his medication for bipolar disorder. But on several fronts, their recollections seemed more in line with the defense’s contention that Olsen was “scared to death.”
“The witnesses are all over the place,” Holloway said.
Can the state recover?
“Would I say they’re in trouble? Not yet,” Adams said.
The jury has yet to hear from DeKalb police officer Lyn Anderson, who previously testified that Olsen said Hill attacked him prior to the shooting. Prosecutors also teased damning evidence contained within Olsen’s interviews with investigators.
“If there are discrepancies in his story, then the credibility he needs to establish with the jurors will be lost,” Panitch said. “You have to believe that he believed he was in reasonable fear.”
The jury is expected to be a tough audience for the defense. The seven-woman, five-man panel seated on Thursday includes five whites, five African-Americans and two naturalized citizens. Race played a formative role in the selection process, though so far it hasn’t figured in any testimony. And neither side broached the subject during opening statements.
Still, most legal observers felt the defense needed as many white jurors as possible. Olsen is white. Hill was black.
Co-counsel Amanda Clark Palmer admitted as much during jury selection, pointing out to Judge LaTisha Dear Jackson that the prosecution had agreed to allow four white male prospective jurors to be excused from duty because of travel plans. The defense had wanted them to stay on the jury, she said.
The racial composition of the jury reflects DeKalb’s diverse make-up and, it seems, the county’s progressive political leanings. Four of the five white jurors said they believe law enforcement treats blacks unfavorably when compared to whites. Will it influence the verdict?
“I’m not the person who thinks that jury selection decides the whole trial,” Panitch said. “Many lawyers think it does.”
Olsen, who faces life in prison if convicted of either of the felony murder counts, turned down a plea offer including a 20-year sentence, with 15 years incarceration followed by five years on probation.
This meant the state was willing to let Olsen plead guilty to something less than murder, presumably voluntary manslaughter. It also indicates they felt strongly about their case, as Olsen, at age 57, with an adolescent boy at home, would seem unwilling to give up 15 years of his life.
For now, though, the defense appears to have claimed some momentum.
“The jury is leaving for three days with at least one witness, who doesn’t have a dog in the fight and liked the victim, supporting the defense’s argument,” Panitch said.
Holloway said the state has yet to prove criminal intent.
“If this jury believes that this was simply a situation where the officer panicked then we could be headed towards a not guilty verdict,” he said.
That won’t please Hill’s mother, Carolyn Baylor Giummo. She was the state’s first witness, limited in what she could say by pretrial evidentiary rulings.
But Giummo was able to establish for the jury that Hill had left college to join the Air Force. He served in the military almost five years and returned home diagnosed with PTSD and bipolar disorder, mental illnesses he did not have as a child or a teenager, she said. She added that Hill was medically retired from the Air Force and, on the day of his killing, had stopped taking his prescribed medications.
Before Giummo stepped down, Clark Palmer walked up to the podium and said she had no questions.
“I’m very sorry for the loss of your son,” Clark Palmer said. It was believed to be the first time anyone from Olsen’s side had conveyed that message to Hill’s mother.
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