August 3, 2018, a jury of 12 citizens of Fauquier County convicted Bernard C. Duse, Jr. of First Degree Murder in connection with the death of Rex Mack Olsen. Commonwealth’s Attorney Jim Fisher tried the case with two senior level prosecutors, Jamey Cook, Deputy Chief, C.A. and Abbey Owens, Senior Assistant C.A.
Rex Olsen, 64, was a manager at Warrenton, VA’s Blackwell Road CVS Store. Duse was a disgruntled former assistant manager who was denied a store manager position and had recently lost a claim for discrimination. Duse also claimed that, after his complaint for discrimination was originally made in 2015, CVS retaliated against him by reclassifying him as an “operations manager” which he considered a demotion that took him out of future consideration for other store manager opportunities.
Contrary to Duse’s theory that he was denied a store manager position and demoted to “operations manager,” due to age discrimination and retaliatory practices by CVS, Mr. Olsen testified in a December 2016 deposition that Duse was reclassified because of a low score on a behaviors assessment instrument administered by Mr. Olsen. Duse’s score fell below the criteria for being a store manager and Mr. Olsen was a critical witness to establish that fact on behalf of CVS.
Suspicious of Mr. Olsen’s scoring on the management assessment tool, Duse was seen on store security video rummaging through personnel files, which he was not permitted to access, when he found an earlier version of the assessment in Mr. Olsen’s handwriting that had an even lower score. Duse, then smuggled that document out of the store and later claimed that it had been left on the windshield of his car by an unknown person. He and his counsel used this document as a “smoking gun” document that, Duse believed justified a somewhat paranoid theory that CVS management had conspired against him with Mr. Olsen acting as a “hatchet man.” Specifically, Duse argued to an arbitrator that his score on the prior version of the assessment was so low that Mr. Olsen must have been counseled to create a new version that was higher, but not so high as to achieve the mandatory score of 50 or above. The arbitrator rejected that theory as being a part of a discrimination complaint and dismissed the complaint 6 weeks prior to the murder of Mr. Olsen.
The retaliation claim however was permitted to proceed and Mr. Olsen would have been a witness on behalf of CVS in that matter. Mr. Olsen was on record stating that there could not have been retaliation against Duse in reclassifying him as an operations manager because at the time of the reclassification, and the low assessment score of Duse, Mr. Olsen had no idea that Duse had filed the original discrimination complaint. Thus, he could not possibly have been acting in a retaliatory manner when he administered the assessment that resulted in Duse being taken out of the store management career track.
The murder case was largely circumstantial. On Monday, July 30, Commonwealth’s Attorney Jim Fisher laid out the case for the prosecution in a 30 minute opening statement that detailed the evidence that would be shown to the jury. First, the motive would be shown by the bitter discrimination litigation along with angry emails from Duse to his civil attorney in which Duse expressed deep hatred for Rex Olsen. Second, after the murder, Duse staged the scene as a robbery and in so doing stole Mr. Olsen’s cell phone from his left front pocket. This not only left trace levels of Duse’s DNA in Mr. Olsen’s pocket, but also resulted in a mobile phone data trail of both Olsen’s phone and Duse’s phone traveling back to Duse’s residence roughly an hour away in Eastern Fairfax County.
Also, When Duse was arrested 6 days later, microscopic particles characteristic of gun shot primer residue were found in Duse’s car. An investigation into Duse’s past revealed that he registered a firearm (38 Special, S&W) with authorities in Connecticut which would have been capable of firing the same ammunition as that which was recovered from the victim’s body. While other guns were found in Duse’s house, this gun was missing and there was no record of any lawful transfer.
During the trial, the tight and seamless presentation of the powerful circumstantial evidence led to Duse taking the stand in his own defense. Fisher cross-examined Duse aggressively and exposed Duse’s flimsy explanations for the existence of the circumstantial evidence. Duse’s credibility was thus also on trial, and it was judged not believable by the jury which deliberated for two hours prior to pronouncing Duse guilty of First Degree Murder.
Virginia is one of the last few states in which a jury fixes a sentence in a criminal case. Fisher and his team of prosecutors then presented the testimony from the Olsen family about he loss of their father/husband. Fisher closed with argument to the jury asking their consideration of a life sentence, which the jury pronounced after 30 minutes of deliberation.
What the jury did not hear, due to Virginia law prohibiting its admission as evidence in the case, was Duse’s very litigious background which exposed his mental health history. Beginning in 1984, he sued virtually every employer he had for some form of discrimination. He had sued or made discrimination complaints against IBM, Barnes & Noble, the USPS (over a 90 day temp job) and ultimately CVS. Often claiming “emotional distress” as part of his damages, prior employers were able to have him evaluated during the lawsuits by Psychiatrists of substantial renown. During the execution of a search warrant inside the defendant’s home office, many of these psychological records were found, which detailed very serious mental health concerns regarding the defendant. Among the records was a comprehensive 18 page report from Dr. Howard Zonana, MD, authored in 1992 in connection with the IBM suit. Dr. Zonana, a founder of Yale University’s forensic psychiatry division of the medical school’s psychiatry department would diagnose Duse with paranoid personality disorder among other conditions.
While the jury did not hear the psychiatric history of Duse, the information it was important to the case in its early stages. Fisher used it to defend against a bail bond motion where Duse sought to be released pre-trial on bail. Notwithstanding a mental health history where more than one doctor opined that Duse would one day potentially be dangerous and that his condition appeared be declining, Duse was released on bail bond prior to the trial. Fisher appealed this decision to the Virginia Supreme Court and won a unanimous reversal in a published opinion declaring that on four separate grounds the judge who heard the bond motion abused his discretion in releasing Duse over Virginia’s strong presumption against bail for violent defendants. This allowed the Commonwealth to take Duse back into custody pending his trial that later resulted in a conviction and a life sentence.
The case will be reviewed by the trial judge who presided over the jury trial on October 17, 2018 for a final sentencing proceeding and consideration of an entry of a final order. This is a standard post trial hearing in Virginia since the trial judge retains authority over a jury sentence which is subject to modification or simple affirmance with a final order.