Judge Tom Hart declares a mistrial Wednesday morning in the Phillip Johnson murder case, due to a hung jury. Prosecutors will retry their case against Victor David Smith in September. (KEIZERTIMES/Craig Murphy)

Judge Tom Hart declares a mistrial Wednesday morning in the Phillip Johnson murder case, due to a hung jury. Prosecutors will retry their case against Victor David Smith in September. (KEIZERTIMES/Craig Murphy)

Of the Keizertimes

The split wasn’t ending.

After more than three days of jury deliberation, no verdict was reached in the trial of Victor David Smith.

Smith was charged with murdering Keizer’s Phillip Johnson with a firearm in 2004.

The trial opened on June 17, with the final witnesses taking the stand the morning of Thursday, June 19. Closing arguments were given June 20, after which the 12-member jury began deliberations.

After not reaching a verdict last Friday afternoon, the jurors resumed deliberations at 9 a.m. Monday. With no progress reported, the schedule repeated on Tuesday.

By the end of the day Tuesday, still no verdict had been reached. After more deliberations Wednesday morning, Marion County Circuit Court Judge Tom Hart called all parties back to his courtroom shortly before 11 a.m.

“They have remained split,” Hart said. “This is after 21 hours and five minutes of deliberations. They deliberated longer than it took to try the case.”

Once Hart brought the jury back in, he mentioned the foreman had given him a note Tuesday afternoon about being split. A note with the same message led to his announcement Wednesday morning.

“You’re telling me you are irreparably split?” Hart asked, getting an affirmative response. “Then I’m  going to declare a mistrial. The suspect stays in custody. The next trial is set for Sept. 10.”

Hart informed media speaking with jurors would not be allowed to “preserve the integrity” of the matter. Prosecutor Paige Clarkson declined to comment, as did Johnson’s family, which sat in the second row during the entire trial.

Johnson was shot multiple times outside his Keizer apartment the night of July 1, 2004. Smith was arraigned last year on the single murder charge.

Smith was a prime suspect early in the case. At the time of the murder, he lived in Salem with Imani Williams, Johnson’s former girlfriend and a key figure in the saga. Much of the prosecution’s case was based on Smith being upset Williams still had strong feelings for Johnson.

The deliberations followed lengthy closing arguments for both sides. Clarkson from the Marion County District Attorney’s office opened by once again showing “The Defendant’s Prophecy,” a letter Smith had written to Williams. The letter had also led the prosecution’s opening arguments three days earlier.

“This defendant had a problem and the problem had a name: Phillip Johnson,” Clarkson said. “Phillip Johnson was the one thing that stood between him and what he loved. Phillip Johnson deserves justice. But to this defendant, Phillip Johnson was only a problem that needed to be solved. It was a problem that needed to be solved with murder.”

Clarkson pointed to evidence as showing Smith’s motive and being at the location.

“There is a lot of evidence in this case that tells you Phillip Johnson was murdered by this defendant,” she said. “We have a timeline of events of July 1, 2004. It tells you this defendant was on the way to murder Phillip Johnson. That is objective information that is completely unbiased.”

In particular, Clarkson pointed to multiple cell phone calls shortly after the murder.

“Imani Williams is calling this defendant at almost the exact time Phillip Johnson is killed,” Clarkson said. “There’s no reason for her to call (Smith) if he’s sitting next to her. She’s calling him because he’s not there…You can infer where he was. He was out shooting Phillip Johnson. He was out solving his problem.”

Olcott Thompson, Smith’s attorney, countered that the prosecution’s case left too many holes and created more than enough reasonable doubt. For example, he pointed to different details told by Sara Fandrei and Steven Chrisco, the two the prosecution stated drove Smith to Johnson’s apartment complex.

“Everyone sees the same event differently,” Thompson said. “Her story is slightly different than Mr. Chrisco’s, no question. How consistent are the stories? The problem is, the big stuff in (both) stories don’t match other things.”

Thompson said several suspects – including Chrisco, who has been in and out of prison on various charges the past 15 years – were too quickly dismissed by investigators with the Keizer Police Department.

“The state has to prove things,” Thompson said. “They’re saying, ‘Trust us; we’re the government.’ You need to make sure you get your decision right. It’s OK to let someone who is guilty go free if the state didn’t prove its case.”

On Tuesday, Thompson expanded upon that thought.

“The American system of justice is based on the state has to prove it beyond a reasonable doubt,” he said. “Part of what’s built into that is a belief that it is better to let a guilty person go than to convict an innocent person. Ultimately, O.J. Simpson is the best example. Probably a lot of people thought he killed his ex-wife. But did they prove it beyond a reasonable doubt in the trial? The jury said no. Just because you believe something is not the same as the state proving it.”

Thompson said the jury being out so long didn’t necessarily play out in favor of his client.

“At this point, no,” he said. “Generally, and all generalizations are false including this one, if they come back quick it’s a state verdict. If they take longer, wherever the break point is, it’s a defense verdict. At some point, we don’t know.”

Thompson noted he’s past the point of being surprised.

“I’ve been doing this for 30 years,” he said. “Jurors never surprise me. I’ve given up being surprised. They work at it and they get it right usually, 99 percent of the time. Sometimes it takes forever. At this point, if I start getting surprised by jurors, I’m in trouble.”