Mysterious posters in courthouse garage could have jeopardized Auburn police killing case, judge says

The trial of an Auburn police officer charged with murder went to the jury Thursday, but not before a dramatic discovery the judge said threatened to jeopardize the case.

Auburn police officer Jeffrey Nelson faces charges of second-degree murder and first-degree assault for twice shooting Jesse Sarey on May 31, 2019. Nelson is the first police officer charged under a new state standard for misuse of deadly force.

Before closing arguments could take place, Judge Nicole Gaines Phelps told a packed courtroom at the Maleng Regional Justice Center in Kent that Tim Leary, one of Nelson’s defense attorneys, arrived early Thursday to find dozens of fliers hung in the courthouse parking garage pointing out Nelson’s two previous deadly force incidents while working at the Auburn Police Department. The court had excluded information about these previous cases from the trial.

Leary removed the posters but Judge Phelps was concerned that jurors could have seen them, providing grounds for a mistrial.

“Whoever is doing things like this — you are severely jeopardizing this case,” Phelps said. “This is not a way to make sure justice is done, because if one of our jurors or multiple numbers of our jurors have been exposed to this, it means we could potentially have to start over with this trial.”

No jurors said they had seen the fliers, but Phelps said she’s asked staff to look into who posted them.

Nelson’s encounter with Sarey began when businesses called 911 saying he was banging on windows, throwing rocks, and might be high or in a mental health crisis.

Prosecuting attorney Patty Eakes said Nelson received crisis intervention training three times, at the police academy and on the job, but did not wait for backup or take other measures to de-escalate his encounter before grappling with Sarey and shooting him in the abdomen and head.

Eakes said Nelson “disregarded his training at every step of the way. At each point when he could have safely and without force arrested Mr. Sarey, he instead chose to toss that training aside and take the most aggressive path.”

Nelson’s defense attorneys told jurors that Nelson’s actions were justified because Sarey tried to grab Nelson’s gun and a folding knife in his pocket, and Nelson didn’t know whether Sarey had gained control of the knife or not. Defense attorney Kristen Murray said Sarey stood to challenge Nelson, rather than Nelson pulling Sarey to his feet when Sarey ignored his commands.

“Over and over again the state told you officer Nelson picked up Mr. Sarey, but not one witness told you that. They are relying on video and what they want you to believe the video shows,” Murray said.

RELATED: For murder trial of Auburn police officer, lawyers probe jurors' views on deadly force

She also briefly addressed the defense team’s decision to rest its case without having Nelson testify, contrary to what was promised in opening statements May 16. (On that day defense attorney Emma Scanlan told jurors, "You’re going to hear from officer Nelson. He’s been waiting for five years to explain what happened and tell you what actually occurred.”)

In closing arguments Murray said, “The reality is all the important information that we wanted to make sure to get in before you came out through state’s own witnesses. And what the evidence actually showed you is that officer Nelson acted lawfully.”

Jurors are expected to begin deliberations Friday and continue next Tuesday, June 25.

Nelson is the first police officer to be charged under a Washington state law approved by voters in 2018. Initiative 940 removed the requirement to prove that a police officer acted with “malice” to prove misuse of deadly force. Instead prosecutors must show Nelson’s use of force was not reasonable or necessary when he shot and killed Sarey.