March 10, 2009 in City, Idaho
Olsen defense cites sexuality, erased 911 call
The defense of suspended Spokane police officer Jay Olsen relies on an erased 911 tape, an expert who said Olsen was justified in shooting Shonto Pete in the head and that same expert’s testimony that Olsen acted in part out of “personal concerns” about being gay.
Jurors in Olsen’s Spokane Superior Court assault trial looked surprised late Tuesday when defense expert and law enforcement instructor Massad Ayoob of Live Oak, Fla. said Olsen will testify when he takes the stand today that he is a “gay male police officer in a profession that has been hostile to gay males.”
Ayoob did not explain how that relates to the shooting of Pete in an early-morning encounter in Peaceful Valley on Feb. 26, 2007. His comments came during cross-examination by deputy prosecutor Larry Steinmetz, who pressed him on his testimony that Olsen was justified in shooting Pete.
“Was it reasonable for Officer Olsen not to call fellow officers, police radio or any other officers during this episode?” Steinmetz asked.
“That was pretty darned stupid… it was out of policy not to do so,” Ayoob replied.
“If he had a cellular telephone on his person, why wouldn’t you expect him to call 911?” Steinmetz asked.
Ayoob referred to Olsen’s “personal concerns,” saying the off-duty cop had just come from Dempsey’s, “known locally as a gay bar,” before the encounter with Pete in Peaceful Valley. Both men were drunk at the time, according to court documents.
Under questioning from Olsen’s lawyer, Rob Cossey, Ayoob said Olsen was justified in firing five bullets at Pete with his “baby Glock” pistol because he feared Pete had a weapon. Pete didn’t have a gun, only a small pocketknife that was found later in his clothing, according to other trial testimony.
“Police officers can use deadly force in situations of immediate danger of great bodily harm,” Ayoob said. The fact that Olsen only shot five of the 11 bullets in his pistol is “not consistent with a man in a state of rage intending to commit murder,” Ayoob added.
Earlier Tuesday, fireworks erupted in the trial after a Spokane Police Department dispatch supervisor testified that Pete admitted to him in a 911 call that he’d stolen Olsen’s truck the night of the shooting.
Marvin D. Tucker, a 14-year police department employee, said he briefly talked to the “shooting victim” after a Peaceful Valley homeowner called 911 early on Feb. 26 , 2007 to report that someone on his porch had been shot.
He didn’t ask Pete’s name during the conversation and the 911 recording has been erased, Tucker said.
The jury was led out of Superior Court Judge Jerome Leveque’s courtroom as the prosecution raised strenuous objections to Tucker’s testimony.
“Do you know if you were talking to Shonto Pete?” Steinmetz asked Tucker.
“I can say I was speaking to the victim who was shot,” Tucker replied.
Tucker said it was “common knowledge” in the police department that he’d spoken to Pete and assumed the 911 recording would be produced in discovery. It wasn’t, despite requests by Spokane Police Department Det. Kip Hollenbeck on March 5, 2007 for all recordings made in the officer-involved shooting.
It also never surfaced in Pete’s October 2007 trial on theft charges. A Spokane jury acquitted Pete of the charges, saying there was no evidence Pete was ever inside Olsen’s truck.
Steinmetz handed Tucker a transcript of a police radio recording produced in discovery for Olsen’s trial.
“Is there anything in that transcript about your conversation with a victim who said he’d been in a car?” Steinmetz asked.
“No sir, there is not,” Tucker said.
Steinmetz also had Tucker read to the jury the entire Computer-Aided Dispatch transcript from that evening.
“Nowhere – and this is your recording of the event – does it say that the victim you identified took the vehicle,” Steinmetz said.
“No, it does not,” Tucker replied.
Tucker said the incident stood out among hundreds of thousands of police dispatch calls in the last two years because it involved a police officer – Olsen – who was temporarily missing in Peaceful Valley when the “shots fired” call came in.
“When one of your own gets involved in an incident, you remember it,” Tucker told Steinmetz.
Steinmetz asked if Olsen ever tried to call into 911 or dispatch as officers tried to find him.
“I never spoke to Officer Olsen,” Tucker said.
Steinmetz questioned the dispatch supervisor on how he became a witness.
Tucker said he received a call two to three months ago from Jeff Holy, a lawyer in the office of Rob Cossey, Olsen’s attorney.
“Are you aware that lawyer is a former Spokane police officer?” Steinmetz said.
“Yes,” Tucker replied.
Steinmetz criticized Tucker for not making an independent recording of the 911 call and not reporting the alleged conversation to the prosecutor’s office as evidence of a possible felony.
Cossey said he resented Steinmetz’ implication that “my office fabricated this witness.”