Time has not been a friend to the families of Jesse Sarey and Manuel “Manny” Ellis.
Both men were killed by police, Sarey in 2019 and Ellis in 2020, leading to murder charges against the involved officers and hopes of justice and closure for loved ones left behind.
But years have now passed without either case even close to going to trial. The officers, while off the streets, continue to collect their pay and benefits — their lives and livelihoods sheltered by a legal system that presumes they’re innocent until proven guilty in a court of law.
Meanwhile, the victims’ families wait, their lives shattered by loss and seemingly dictated by another legal maxim: that justice delayed is justice denied.
“Our family has been waiting and waiting,” said Elaine Simons, who was Sarey’s foster mother and who has become a forceful voice for police reform and justice for families affected by police violence.
Sarey was shot to death May 31, 2019, by Auburn police Officer Jeff Nelson during a struggle outside a convenience story. It was Nelson’s third fatal shooting in 11 years with the department.
Nelson was charged Aug. 20, 2020, 14 months after Sarey was killed.
Simons said Sarey’s mother, Kari, and younger brother, Torell, have since died without ever knowing whether Nelson would be convicted in their loved one’s death.
Members of Ellis’ family have also been exasperated by delays in the Tacoma officers’ trials.
“I want to pull my hair out,” said Monet Carter-Mixon, the sister of Ellis, who died after being beaten and restrained by three Tacoma officers who stopped him March 3, 2020, while he was walking home with a bag of doughnuts.
“It’s deeper than frustrating,” she said, pointing to police violence cases in other states that have gone to trial and been resolved while Ellis’ case continues to wind its way through the legal system.
One example, Carter-Mixon said, is the Minnesota prosecution of the officers involved in the murder of George Floyd in May 2020. Officer Derek Chauvin, who knelt on Floyd’s neck, and the three officers who help pin Floyd down were fired the following day. Three days after that, they were charged in Floyd’s murder.
Chauvin was tried, convicted of murder and sentenced to 22 years in prison — all within 11 months of Floyd’s death.
Carter-Mixon noted the five officers involved in the Jan. 7 beating death of Tyre Nichols in Memphis, Tennessee, were fired within two weeks of the incident. They were charged with murder, aggravated assault and aggravated kidnapping on Jan. 26.
“The officers who did this to Manny did the exact same thing, but it’s taking so much time,” she said. “And they haven’t been fired. When are they going to be held accountable?”
All the officers remain on paid administrative leave, collecting their salaries and benefits while awaiting trial. A review of Washington state retirement system data, current through 2019, shows Nelson’s annual salary as $116,451.93, meaning he’s collected an estimated $281,422 in salary since he was charged and $426,987 since Sarey was shot to death.
Charges weren’t filed against the three Tacoma officers — Matthew Collins, Christopher “Shane” Burbank and Timothy “Timmy” Rankine — until 15 months after Ellis’ death, and then only after the Washington Attorney General’s Office took the case from Pierce County, where prosecutors had declined to file a complaint. After numerous delays, the case is tentatively set to go to trial Sept. 18 — three years, six months and 15 days after Ellis died.
In Tacoma, Collins has collected roughly $338,651 since Ellis was killed; Burbank has collected an estimated $363,825, and Rankine has collected $191,432 since that day.
Delays have plagued both cases, including a months-long closure of the state court system early in the COVID-19 pandemic. Nelson’s case has also seen lengthy delays as attorneys wrangle over access to expert witnesses — a total of 21 so far — and the December decision by former King County Prosecutor Dan Satterberg to turn the case over to $525-an-hour outside attorneys in December. The costly and time-consuming move was a hot topic during a hearing last week before Judge Nicole Gaines Phelps, who over the objections of Nelson’s defense attorneys kicked the trial back to Dec. 4 — a date fully 4 1/2 years after Sarey was killed.
While Phelps told the attorneys she expects them to be ready on the scheduled December date, she acknowledged further delays could occur. The new prosecutors, Patty Eakes and Angelo Calfo, both experienced trial lawyers with the international firm Morgan, Lewis & Bockius, had asked for a February 2024 trial date.
Eakes is also the lead attorney in the Tacoma officers’ prosecution.
Nelson’s attorneys, Emma Scanlan and Kristen Murray, told Phelps they could be ready for trial July 5, though Scanlan said in an earlier hearing that it’d be “optimistic” to think the defense would be ready for trial before fall.
Scanlan wondered why the office could assign other attorneys to prosecute Nelson, although data shows backlogs in King County homicide prosecutions have resulted in long delays, even for more routine cases.
Scanlan and Murray have filed a motion asking Phelps to order the King County Prosecuting Attorney’s Office to turn over documents and communications about the decision to hire outside attorneys, suggesting the move and resulting delays amount to mismanagement of the case and prejudice to Nelson.
Data from the prosecutor’s office shows the average amount of time between charging decision and disposition in homicide cases is up from 19 months to 27 months due to a COVID-19-induced court backlog. The office currently has 247 active homicide prosecutions.
The prosecutions of Nelson and the Tacoma officers are unique in that they will mark the first applications of a new deadly force law for police that came about with voters’ 2018 passage of Initiative 940. The officers will be the first tried under the new statute, which replaced a law that was so narrowly written — requiring prosecutors to prove “malice” in any police-involved killing — that it was considered unenforceable.
Moreover, the issue of interviewing and forming rebuttal testimony for a string of expert witnesses being called by both sides in both cases has been particularly time-consuming.
Bob Boruchowitz, the former director of the King County Public Defender’s Association and a professor at Seattle University School of Law, said complex cases such as homicides often result in long delays. In the Ellis and Sarey killings, he said, that’s likely exacerbated by the fact that the officers are being tried under the first applications of a new law.
Scheduling around other cases, expert witness interviews and rebuttal reports, motion hearings, depositions and discovery can be tricky and time-consuming, all while trying to ensure defendants — whose life and freedom are at stake — receive fair and “speedy” trials within the confines of the law.
All of this happens while victims’ families wait for justice, essentially as observers to the legal machination and maneuvers.
“So the defense and prosecutors do need to be thinking of the family,” Boruchowitz said. “The outrage here is real and it’s totally understandable.
“The key to all of this is effective and sensitive communication. You want to be sure that everybody understands that you want to get this first application of this law right. You don’t want unnecessary criticism or outcome that gives critics a reason to change the law back.”
