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News / Northwest

5 years after fatal encounter, jury to hear murder case against Auburn cop

By Mike Carter, The Seattle Times
Published: May 14, 2024, 7:53am

SEATTLE — The evening of May 31, 2019, a troubled 26-year-old man and an Auburn police officer with a violent history came together in a fateful, fatal 67-second encounter outside a neighborhood market.

Now, five years later, a King County jury this week will begin hearing testimony — expected to last at least a month — to decide whether the shooting death of Jesse Sarey by Officer Jeff Nelson was murder or self-defense.

Nelson shot Sarey during a scuffle — the third time Nelson had shot and killed someone during his 12 years as a cop. He is charged with murder and assault, the first King County police officer in nearly half a century to face criminal charges for an on-duty killing.

The case marks the second time this year that police in Washington have gone on trial for murder, once a virtual impossibility under a previous statute. However, passage of Initiative 940 in 2018 removed those legal barriers as well as required police to emphasize de-escalation and accountability.

The first test of the law — the prosecution this past spring of three Tacoma officers for the suffocation death of Manuel “Manny” Ellis — ended in acquittals and left police reformers stunned and disappointed. They are hoping for a different outcome in the Nelson case — a verdict that shows police can be held accountable when they kill unnecessarily.

Delays in the Nelson case have prompted anger and years of anguish among Sarey’s friends and family while Nelson has been on house arrest, on leave and subject to an ankle monitor, continuing to collect his salary of more than $100,000 a year since the charges were filed in 2020.

“This family and this community have waited and waited,” said Elaine Simons, foster mother to Sarey and his younger brother, who spent months pressing for criminal charges, and attended every hearing on her way to becoming a strong voice in police accountability circles.

Prosecutors say Nelson confronted Sarey, who was in crisis, outside an Auburn market and unnecessarily escalated a routine misdemeanor arrest.

Nelson says Sarey grabbed at his gun and tried to get at a knife he carried on his protective vest, and that he shot Sarey in self-defense.

In court filings, prosecutors have said they intend to call as many as 56 witnesses, including 11 experts to testify about police practices and the analysis of audio and video from Nelson’s dash camera and nearby businesses. Nelson’s defense has listed 29 witnesses, including 13 experts.

Discovery has exceeded 30,000 pages of documents and 14 gigabytes of data, according to the pleadings.

All of this — along with more than a dozen court hearings — is focused on a confrontation between Nelson and Sarey that lasted, from started to finish, just 1 minute and 7 seconds.

“Escalating interactions”

Nelson had responded to a 911 call from businesses in the area of 15th Street Northeast and Auburn Way North of a man pounding on windows, throwing items at cars and kicking buildings.

Nelson, 44, a K-9 officer who joined the Auburn department in 2008, responded and located Sarey, whom he warned to stop bothering people or he’d be arrested. Nelson left, and Sarey jaywalked through traffic to the Sunshine Grocery, according to the criminal charges.

Nelson circled around and parked, deciding to arrest Sarey for misdemeanor misconduct. He approached Sarey in front of the store, near an ice machine. The complaint notes that Nelson was 6-foot and 223 pounds. Sarey was 5-foot-5 and 146 pounds.

According to the charges — based on dash-camera video, witness statements and surveillance video from nearby businesses — Nelson went hands-on with Sarey “in a series of quick, escalating interactions” that ended when Nelson drew his handgun and shot Sarey twice.

The first round struck him in the abdomen and Sarey slumped against the ice machine — which still bears a dent from the round after it passed through Sarey’s torso.

According to witnesses and the charges, Sarey slid down the side of the ice machine into a sitting position as Nelson clear a jammed casing from his .45-caliber handgun and shot Sarey a second time, in the head, from several feet away, about three seconds after the first shot.

The pleadings have identified two eyewitnesses, and both have questioned the need for the shooting. One told investigators, “After the first shot, [Sarey] was done.”

The Medical Examiner’s Office concluded the first shot would not have been immediately fatal, which is why Nelson is also charged with assault.

“I understand being an officer, you just shot somebody and your adrenaline is going and maybe you’re scared or something and you don’t know what’s going to happen so you shoot him. But I don’t know, man, I just don’t know about that one,” the witness said in a recorded interview.

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A month after the shooting, long before Nelson was arrested, he sat down with investigators and his attorney and provided a written statement.

“The subject then changed hands and secured my jumpsuit with his left hand and removed my utility knife with his right hand,” said Nelson’s statement. “I observed the silver blade become visible and it occurred to me in that instant the subject had not only removed my knife but had apparently chosen to open it.”

Nelson said he expected Sarey to stab him so he drew his sidearm and shot him.

“At the moment I fired I believed that at this point in the struggle I had no other reasonable alternative regarding the use of force, and that the use of deadly force was appropriate to avoid being killed or seriously injured,” Nelson said.

According to the charges, one of the witnesses picked up the folding knife before the shots were fired, and it was closed.

Fourteen months after the shooting then-King County Prosecutor Dan Satterberg charged Nelson with second-degree murder and assault.

It was the first time a police officer in King County had been prosecuted for an on-duty killing since 1971, when a Seattle officer was charged — and later acquitted — of manslaughter.

In the Sarey shooting, experts hired by King County concluded Nelson’s written statement of events was inconsistent with video surveillance footage from the scene.

Additionally, police use-of-force experts consulted by prosecutors concluded Nelson violated his training by not waiting for backup — another officer was on his way, according to court pleadings. They said Nelson had no reason to believe Sarey posed a threat because he was not armed and he was clearly in crisis.

The laws enacted as a result of I-940 require police to emphasize de-escalation and crisis intervention to prevent unnecessary use of force.

“By failing to employ reasonable, proper tactics and de-escalation techniques common to modern policing and part of the Auburn Police Department’s policy and training, Officer Nelson created the very situation that brought about his use of force,” according to the criminal charges.

Prosecutors question the need for the fatal second shot to the head, which occurred 3.4 seconds after the first shot, and was fired after Sarey had collapsed, according to pleadings.

Accountability initiative

“There were lots of rumblings after the [Tacoma] officers were acquitted, that 940 was a failure,” said Leslie Cushman, the Olympia attorney who authored the initiative and who remains at the forefront of the police accountability movement in Washington.

The initiative focused on improved training, de-escalation and removed language that acted as a barrier for charging police officers in cases whether they used questionable deadly force.

The old law required a finding of “malice” when an officer killed someone — a level of proof prosecutors have said was impossible to meet. Data compiled by The Seattle Times in 2015 showed that of 213 people killed by police between 2005 and 2014, only a single Washington police officer had been charged for killing someone.

“Getting rid of the ‘malice and good faith’ clause from the prior law did not guarantee anything beyond making criminal prosecutions possible,” Cushman said. “Judges and juries have big roles, and rules of evidence can produce results that seem absurd.”

In Tacoma, the judge’s rulings limited evidence of the officers’ pasts and allowed the defense to explore Ellis’ drug use and troubled history, according to news accounts. This led to sharp exchanges between the judge and Patty Eakes — a seasoned former prosecutor who was hired by the state attorney general to oversee the Tacoma trial and who is also on contract with King County to prosecute Nelson.

Ellis’ family complained that the judge’s rulings put him on trial, not the officers.

Sarey’s family has expressed similar concerns. Simons, his foster mother, says early rulings in Nelson’s case favor the defense.

“I still don’t know how Jesse is going to be portrayed,” she said.

“I saw what happened in Tacoma with Manny Ellis’s family, so I know this is going to bring up a lot of emotions,” said Simons, who also was a foster parent to Sarey’s brother, Torell, who was killed in a shooting in 2022.

Nelson’s attorneys, in motions filed last week, asked the trial judge, King County Superior Court Judge Nicole Gaines Phelps, to keep a tight rein on Eakes and her partner, former federal prosecutor Angelo Calfo, suggesting they may try to sabotage the trial if only to make more money.

Records obtained by The Seattle Times show the county has issued contracts totaling $2 million to finance the outside prosecutors.

Satterberg hired the private attorneys after the retirement of a senior deputy prosecutor who initially oversaw the investigation and charges. At the time, Satterberg said his office was overwhelmed with cases and wasn’t in a position to take on a prosecution of this magnitude.

Eakes is an experienced former King County prosecutor and trial lawyer who was co-counsel on the prosecution of Green River serial killer Gary L. Ridgway. Calfo served as a white-collar criminal prosecutor for the U.S. Attorney’s Office before entering private practice.

Nelson’s lead attorney is Emma Scanlan, who worked closely on the defense of Colton Harris Moore, the fabled teen “Barefoot Bandit” who eluded police for two years during an audacious crime spree that involved the theft of planes, boats and vehicles. Scanlan also defended former Army Ranger Sgt. Robert Bales, a soldier from Joint Base Lewis-McChord, who pleaded guilty and was spared the death penalty for a 2012 rampage through a Kandahar province village in Afghanistan, killing 16 unarmed civilians.

Like the judge in the Ellis case, Phelps has similarly limited testimony about Nelson’s disturbing history of using force, including his two other fatal shootings and incidents that involved discipline. Phelps is a former King County prosecutor who won the seat by election in 2017.

At this point, Jurors will not be shown photos of extensive tattooing that prosecutors alleged underscored Nelson’s “aggressive, shoot-first posture toward policing” nor will they hear details of statements Nelson, an Army combat veteran, reportedly made at the academy, where he purportedly told his fellow cadets that “you’re not an American unless you’ve killed for this country.”

Nor will jurors be told that the city of Auburn has paid $5.7 million to settle civil lawsuits resulting from Nelson’s actions in three cases, including a $4 million payout to Sarey’s family.

Phelps also ruled that the defense will not be able to introduce evidence that Sarey was under the influence of methamphetamine when he was killed, stating that Nelson could not have known that when he approached him.

Nelson is not listed as a witness, although that does not mean he won’t take the stand. According to court pleadings, he declined to be interviewed by independent investigators and has provided only a written statement prepared with the help of a lawyer.

The admissibility of that statement remains hotly contested.

Prosecutors have objected, saying it is hearsay and that, if Nelson’s lawyers seek to introduce it, he should have to answer questions about it, which could open another avenue for evidence the judge has previously disallowed to make its way to the jury, including Nelson’s history of using force.

Cushman has been more impressed by the Nelson prosecution in King County than she was with the investigation into and the prosecution of the Tacoma officers. Charges there were brought by the Attorney General’s Office after local prosecutors passed.

“I have been watching how local prosecutors have been evaluating cases since I-940 was enacted,” she said. “In my opinion, the legal analysis by the King County prosecutor puts the right emphasis on what we consider the linchpin in 940 — was the use of deadly force necessary.”