Chapter 7 - A key witness (at least from my perspective)

"I don't know if Nelson (and I won't call him "officer" at this point because with our finding of guilt on count two, he is not likely to ever be in law enforcement again), I don't and can't know whether Nelson believed he was under "imminent" threat of great bodily harm or death.  I do know that I heard Woodard say that Sarey was going for his gun, and that freaked Woodard out."

Me 

That was a statement I read out to everyone on the second day of our deliberations. At that point in the deliberations, I couldn’t wrap my head around finding Officer Nelson guilty of the first shot to Jesse Sarey's abdomen based on the statements I would hear from the key witness (at least in my mind) of the entire altercation. Of course, it’s well known that our jury ultimately found Officer Nelson guilty on both counts, so I eventually (and very much definitively) came to realize that he was guilty of the first count of murder in the second degree.

As I drove to court on Tuesday, May 21st, I was already exhausted from being up most of the night on a conference call with my clients in London. On the drive, I was thinking that the day was going to be rough because I didn’t want to be yawning through the testimony, but I knew I’d have to fight that urge.

When we all arrived, there were the usual polite “hellos” and “good mornings,” but beyond that, we didn’t interact much. Everyone seemed content to wait until the bailiff arrived to take us upstairs. Around 9 a.m., she showed up, and we all made our way to the third floor together, moving like a pack. We took our seats in the small room. Most people gravitated toward their usual spots, but I tried to sit somewhere different every day so I could interact with as many people in the group as possible. That day, I sat next to one of the quieter jurors, and despite a few lame attempts at conversation on my part, I couldn’t get much out of them. Oh well. I opened my laptop and got to work on my real job.

I worked away, and soon it was around 10 a.m. We all started wondering what was causing the delay. I later learned that there had been an incident at security that morning, and Anthony (#6) had reported it. This led Judge Phelps to consult with the head of security and the chief judge.

Finally, around 10:30, the bailiff knocked on the door, and we headed into the courtroom. Unfortunately for me and my battle to stay awake, the video expert was back for more testimony. Once again, we went frame by frame through several videos. We reviewed footage of an interaction between Officer Nelson and Jesse from an earlier encounter at the Walgreens across the street from where he was ultimately shot. We watched Officer Nelson driving from Walgreens to the Sunshine Grocery, calling for backup as he calmly drove between locations. We viewed various angles of video taken from across the Sunshine Grocery parking lot. What stood out most to me was tracking the total time that passed from Nelson’s first contact with Jesse at Walgreens to when he decided to engage Jesse at the Sunshine Grocery.

We must have watched the footage of Officer Nelson shooting Jesse Sarey dozens and dozens of times. It was so repetitive that I had to fight the urge not to become completely numb to it. I kept reminding myself that Jesse was a beloved child of God and that his life held immeasurable value. Whether I ultimately decided that Officer Nelson was justified in shooting Jesse or not, I never wanted to lose sight of that fact.

The video expert testified the entire day. It wasn’t exactly a recipe for staying awake after a mostly sleepless night, but I muddled through and managed to glean important information about the circumstances and the timeline. By the end of that day—though the video expert still wasn’t actually finished—I went home feeling like the defense had their work cut out for them if they were going to convince me that Officer Nelson’s actions were justifiable.

I slept well that night, which was good since I needed to be refreshed for what would turn out to be an important day of testimony. We all arrived the morning of May 22nd and were promptly brought into the courtroom a little after 9 a.m. As had happened a few days earlier, Judge Phelps informed us there would be another break in the video expert’s testimony. This morning, we would be hearing from Steven Woodard, a witness to the events at the Sunshine Grocery.

The prosecution called Mr. Woodard to the stand, and a gentleman with a slightly manic swagger, covered in tattoos, approached and was sworn in. I couldn’t help but be a little amused by the tattoos on his arms; one read “F#% OFF,” and the other said “PAY ME.” For some reason, those hit my funny bone. As Mr. Calfo began questioning Mr. Woodard, I’d describe his demeanor as calm, but at the same time, erratic. Or maybe I was sensing that while he was composed for the moment, it wouldn’t have surprised me if he suddenly became jittery. I remember thinking that Mr. Woodard didn’t seem to be in the happiest place in his life, and part of that appeared to stem from being deeply affected by what he witnessed that evening in May 2019.

Through Mr. Calfo's questioning, we learned that Mr. Woodard had been there the night of the shooting. He was sitting in his car, about ten feet away from where the scuffle took place. Mr. Woodard had a close-up view of everything that happened between Jesse and Officer Nelson, and I felt his perspective was the best, aside from Officer Nelson's or Jesse’s. As Mr. Woodard began describing what he witnessed, he mentioned noticing them start to fight. At first, it was more like "grappling" or "hug fighting." He likened the scene to the "Tasmanian Devil in Looney Tunes," and was surprised by how much Jesse was fighting back, considering Officer Nelson was bigger and stronger. At one point, Woodard even described Jesse as having some kind of "Superman strength."

Mr. Woodard testified that during the scuffle, he saw Jesse's hand reach around Officer Nelson's waist and "brush" his gun. That sight freaked him out, prompting him to jump out of his car to help Officer Nelson. Amidst the struggle, Officer Nelson’s knife flew out of the melee and landed right in front of Mr. Woodard's car. At some point, Woodard picked it up and placed it on his car's hood. He also testified that he screamed at Jesse to stop resisting, and soon after, Nelson pushed Jesse away and shot him. Woodard admitted being surprised that Officer Nelson shot Jesse in that moment.

Mr. Woodard's testimony added a whole new dimension to the case. I wondered if Officer Nelson knew whether the knife was still in Jesse’s possession. While Woodard's testimony was critical, perhaps even more important were the videos and audio recordings of him during and after the incident. Some of what Mr. Woodard testified to on the stand didn’t quite align with what the video showed. He testified that he "believed" Jesse was on the ground when Officer Nelson shot him, but when watching the footage, he agreed that wasn’t the case. Woodard also said on the stand that Jesse didn’t punch Nelson but was flailing and swinging to get away. However, the interviews Woodard gave to the police that night told a different story. Notably, Mr. Woodard was adamant that after the 1st shot, Officer Nelson turned to Mr. Woodard and pointed the gun in his direction. Upon inspection of the video evidence, that did not happen. 

In his testimony, Woodard tried to downplay Jesse’s contact with Nelson’s gun, saying it was incidental. But when faced with the evidence of what he said that night of May 2019, he conceded that he very clearly told the interviewers that Jesse "tried to grab his gun" multiple times. As Ms. Murray cross-examined Woodard, he again stated that Jesse's actions—his refusal to comply with Nelson—freaked him out. He said he thought Jesse was high or having some mental issue because he was doing some "weird stuff." He agreed with Ms. Murray that both Nelson and Jesse were fighting; it was a "mutual thing." Once again, during Ms. Murray's cross, Woodard tried to say that Jesse "brushed the side of the gun," but Ms. Murray showed him the tape where he said Jesse "reached for Officer Nelson's gun." In the interview that night, Woodard stated that Jesse's hand was actually on the gun. Ms. Murray showed him the video where Woodard emphatically told interviewers, "he touched his gun, I was like, holy fuck!" and explained that he got out of the car at that point because he thought Nelson needed help. In the tape, he told investigators that Officer Nelson was punching Jesse, but the punches didn't seem to have any effect. He described Jesse as "fighting, fighting, fighting" and recalled hearing Jesse scream, "you are not taking me to jail."

Mr. Woodard’s testimony was difficult for me to reconcile. On one hand, he was a prosecution witness, and some of his statements supported their case against Officer Nelson. On the other hand, his interviews from the night of the incident painted a strong case for the defense, showing that Jesse was a genuine threat and that Officer Nelson’s use of deadly force was justified. Ultimately, I placed more weight on Woodard’s statements from the immediate aftermath of the incident. However, something Woodard said on the stand stuck with me. When Mr. Calfo asked what Jesse was doing after Officer Nelson’s first shot, Woodard responded, “HE WAS DYING!” He emphasized that after that first shot, Jesse was falling back and incapacitated.

Ultimately, I could not get around the myriad things Woodard said in the moment back in May 2019. I couldn’t dismiss the fact that Woodard yelled at Jesse to "stop resisting," and when Jesse replied, "I'm not resisting," Woodard responded, “bullshit you’re not!” I couldn’t overlook how many times that night Woodard told investigators that Jesse was trying to grab Officer Nelson’s gun. I couldn’t shake the sense that Woodard was nervous about Jesse, feeling that something bad was going to happen. Ultimately, I couldn’t disregard the fact that Woodard believed Nelson didn’t have the situation under control and that Jesse had what seemed like "superman strength."

By the time Woodard’s testimony was complete, I was convinced that there was more than enough reasonable doubt to believe that Nelson feared for his life and was justified in using deadly force against Jesse. However, Woodard’s testimony also solidified my belief that the second shot to Jesse’s head was completely unwarranted. I was sure Nelson was guilty of the second count, and the defense would have to do serious work to convince me otherwise.

Mr. Woodard’s testimony took up the entire day, and we were released a little before 4 p.m. I remember walking out of court that day, feeling exhausted by all the details of what Woodard had heard, seen, and said. I don’t think I spoke to anyone as I headed to my car. I just remember feeling that I didn’t need to hear much more—I was firm in my belief that Nelson was not guilty on the first count and guilty on the second. I felt so strongly about it that I was sure the rest of the jurors must have felt the same way.