GRAHAM, N.C. — The judge in a rape trial ruled Tuesday that statements a former Marine made to a military polygraph examiner weren't made under duress and could be admitted into his trial.
In the statements, Jonathan V. Olson, 20, allegedly told the examiner he didn't have the woman's explicit permission for sex, that she was more intoxicated than he'd initially led investigators to believe and that he wasn't certain she was awake while they had sex. Those statements conflict with what he told investigators in two other interviews in September 2011 and February 2012.
The woman told investigators that she was mentally or physically incapacitated when Olson had sex with her sometime Sept. 4 or 5, 2011, on the Elon University campus. Olson claims the sex was consensual.
Jury selection began in the trial late Tuesday, following a day of testimony on the defense's motion to suppress the statements given to a Naval Criminal Investigation Service agent on Oct. 27, 2011.
The NCIS agent testified that Olson gave the statement voluntarily after failing a polygraph exam that day.
Olson, originally from the Chicago area, was a lance corporal in the Marines at the time. He accepted an other than honorable discharge following the accusations against him.
He took the stand Tuesday, saying his commanders in the USMC ordered him to take the polygraph and comply with Brown’s instructions.
Though Brown said he and Olson sat together and typed the statement — later allowing Olson to make changes in pen — Olson testified that Brown took no notes during the interview before leaving the room "for an extended period of time" and returning with the typed statement.
Olson testified that terms and phrases used in the statement weren't his. Under cross examination by Alamance County District Attorney Pat Nadolski, Olson said he used "poor diction" in a handwritten section where he stated he didn’t have the alleged victim’s explicit consent to sex.
Defense attorney Julian Doby argued that Olson, as a "fresh Marine" was more willing to do whatever his superiors told him to, and that he wasn't familiar with NCIS or military legal procedures and was "in no way thinking that they were going to hand him over to Dan Ingle on a platter." Ingle, former head of Elon University police, is the lead investigator in the case.
Doby also said retaining a military lawyer is more difficult than retaining counsel in civilian life; that Olsen had inquired about retaining a judge advocate general, or JAG attorney, through the military. Olsen was allegedly told he would “get one if he needed one” by his superiors.
Nadolski pointed out that Brown advised Olson of his rights in each step of the polygraph and interview process and would have allowed Olson to leave at any time. Olsen signed waivers before taking the test and participating in an interview for three hours Oct. 27, 2011.
"It's a pretty clear case that this is a voluntary statement," Nadolski said. "He's a very intelligent person. He's said he understood his rights."
Superior Court Judge James E. Hardin Jr. sided with the prosecution, ruling that Olson acknowledged many times during the polygraph and post-interview process that he understood his rights and wished to proceed. Hardin also found no evidence to support Olson's claim that military command gave him a directive to give Brown a statement. Hardin determined the only order Olson got was that he complete a polygraph.
"None of the defendant's Constitutional rights were violated," Hardin said.
Though statements Olson gave in the interview will be admitted into trial, under law the state won't be able to introduce results of Olson's polygraph — which Brown determined he failed. However, if the defense mentions the polygraph results in open court, the state can bring that evidence in.
The trial is expected to last through Friday. Jury selection will continue at 9:30 a.m. Wednesday in the superior courtroom of the Alamance County Criminal Courts Building.