Chapter 8 - Trial Monotony

"My husband and I don't really like cats. One day, much to my husband's chagrin, I brought home a cat. That cat peed everywhere; it was a nightmare. One day he didn't come home; thank you Jesus!"

Juror #5 

As the trial ensued, there were days of testimony that seemingly ran together. There were countless moments of contention between both sides. Sometimes, the defense would get upset about a line of questioning from the prosecution; other times, it was the prosecution’s frustration. Objection after objection would usually lead to a sidebar conversation between the judge and the parties. Invariably, those sidebars led to Judge Phelps excusing us from the courtroom. That script of objection…sidebar…jury removed from the room…must have happened dozens of times throughout the trial. The weeks of testimony were constantly dotted with objections from one side or the other. I came to know that pretty much anytime I heard “OBJECTION,” we were going to be sent out of the courtroom. It got to the point where, one of the times it happened, some of us visibly shook our heads and mockingly laughed. I am pretty sure that Judge Phelps knew we were annoyed by all the interruptions, and I am confident that the bailiff heard us lament about all the filing into the courtroom, only to be filed back out again within minutes.

I could tell that frustration was bubbling under the surface with Judge Phelps, and I remember thinking it was usually directed at the prosecution. One instance took place when Woodard came back for more testimony, the day after his full day in court. Immediately upon Woodard being called back to the stand, there was scuttlebutt between the two sides. Judge Phelps pulled them all to sidebar, and at some point during that discussion, she became visibly frustrated with Mr. Calfo and said, “I thought we discussed and resolved all of this yesterday, but here we are!” With that, we were sent out into the hallway to wait.

On one particular morning, we had been sent out of the courtroom maybe five times, and Mr. Leary asked for us to be removed again so they could battle out an objection. Judge Phelps had had enough, and she railed on the attorneys, saying, “Okay, people, what part of ‘Is there anything we need to address before I bring the jury out’ do you need explained? Because this is the third time I’ve said that this morning.” Mr. Leary then responded, “It rose after you said that this morning, your honor.” Judge Phelps shot back, “And it rose when...? That means it arose during the 45 minutes they spent out, it rose during the 10-minute recess we took, so is there any reason why this could not have been addressed when the jury was out instead of waiting until now?” Leary answered, “I thought it was addressed, your honor. I just wanted to clarify.” That seemed to annoy the judge even further, and she turned to us and said, “Jury, unfortunately, the attorneys don’t know how to follow instructions. I’m going to have to have you step outside.”

Judge Phelps’ frustration was acute enough that she felt it necessary to apologize and instruct us not to consider that. While it was surprising to see Judge Phelps snap at the attorneys like that, and it seemed like she was most annoyed with the defense in this case, this was really the first time it seemed that she might have some ire directed that way. Prior to this, it really felt to me that she was going out of her way to be deferential to the defense and that the prosecution would raise her hackles most often. In any case, I personally didn’t think anything of it as I really thought Mr. Leary was great, and her annoyance directed at him did not in any way produce bias against their case. I will further say that her snapping was NEVER a discussion point for anyone. Now that the trial has concluded, I understand that Mr. Nelson wants to use that incident as one of the ways to move for a new trial, but I am EXTREMELY confident that it had ZERO bearing on our guilty verdicts. Throughout the trial, I never sensed that any of us jurors held any view about the three defense attorneys other than that they were generally very competent and likable.

The most frustrating thing for me was that I knew every time we were put in a holding pattern like that, it gave #3 a chance to be the peanut gallery and make stupid comments that I feared violated the judge’s orders. I felt uncomfortable each time it happened because I could only be a wet blanket so many times. I was also anxious about whether I should send the court an email calling him out. I was loath to do that because I wasn’t 100% sure that what he was saying really crossed the line. I knew that if I made an issue about his jabbering, it would trigger a major inquiry. If he were ultimately dismissed, we’d be down to just one alternate. If he wasn’t released, it would create major animosity between him and the rest of us. I resolved that unless he started firmly giving his opinions on witnesses' testimony, I would largely let it go.

Juror #3’s flirtations with failing to adhere to the instructions stayed consistent throughout the trial. There was one particular time when Juror #14 finally snapped at him and said, “Hey, this is over the line, we’ve got to stop talking about the case.” #3 meekly replied, “You’re right, you’re right.” More than the talking, however, it was #3’s actions in court that were appalling to me. Though I believe it was inadvertent, he regularly showed a lack of respect for the court. He constantly cracked his knuckles during testimony. He wore a hat almost every day. He loudly yawned on several occasions. It gave me a sick feeling to see the disrespect, and I was actually surprised he never got scolded by Judge Phelps. I know his constant chatter and disrespect bothered many of us. More times than I could count, we would look at each other and roll our eyes when he babbled on or did something distracting. Despite his antics, the case wore on.

The breaks weren’t always bad. They often gave me much-needed opportunities to catch up on work I was missing. Importantly, they also allowed us jurors a chance to talk and get to know each other better. We chatted about our kids, our hobbies—about all kinds of things. The breaks gave us a chance to hear humorous stories from each other, like the one about Juror #5 (Grandma) and the cat she intensely disliked.

One day, it was Juror #11’s anniversary, and we ended up having a full conversation about restaurants around Seattle and fun things they could do to celebrate. At one point, we had a 30-minute discussion about the various methods of making coffee. Juror #16, a self-proclaimed coffee snob, described in great (and interesting) detail how the Chemex method works. He shared that after trying all kinds of coffee-making techniques, he found Chemex to be the best, followed closely by the pour-over method. He talked about sourcing quality beans and grinding them fresh. I joked that we’d gone down the path of convenience, opting for the single most expensive way to drink coffee: the Nespresso machine. While monotonous and occasionally frustrating, the breaks gave us an opportunity to bond as a jury, and it was really fun to get to know everyone.

During one of those long waits in the jury room, we got to talking about our kids, and somehow it came up that Juror #11 had almost lost her daughter to some extreme health conditions. The entire group sat with rapt attention as she told us how her family dealt with issue after issue threatening her daughter’s survival from the age of 3. She explained how her daughter had been in and out of Children’s Hospital for 9 years, but now at 12, things had finally been figured out, and she was back to playing sports and living a normal life. Throughout the conversation, she continually referenced prayer, her strong faith, and being secure that things were in God’s hands. As a fellow Christian, I really appreciated and was moved by her strong faith in the midst of incredible difficulty. She and I had a chance to speak about our faith another time, and I learned that she and her husband were called a few years ago to lead a church in Des Moines, where her husband is now the lead pastor. Since I have been involved in our church’s leadership, I discussed with her what a difficult job it is to be a pastor. I relayed my extreme respect and admiration for their willingness to sacrifice in the ways they must have.

The activities and conversations were not always serious. Most of the time, they were very lighthearted. The bailiff made sure to have the room stocked with little Halloween candies, and the amount of chocolate consumed by me and my cohorts was staggering. A few of the jurors enjoyed doing puzzles, and there was constantly a puzzle being worked on. I believe the puzzlers finished at least 10 different ones throughout the trial. They actually had to bring in new puzzles from the outside because they finished all of the ones that had been in the jury room to start with.

A frequent topic of conversation was how long we all thought the trial might go. In one of those conversations, Juror #1 said she really hoped it would not stretch to July 19th because that was her birthday. I said it would sure be nice if it wrapped up before July 12th because that was my wife and my anniversary. I also hoped it didn’t go until August because I needed to take my daughters off to their various universities in California. The fact was, none of us had any idea how things were progressing. Were there a lot more prosecution witnesses? How many witnesses might the defense have? We were totally in the dark, and it felt like, with so many interruptions, we must have been way behind the original schedule.

When we weren’t stuck inside that tiny room, we managed to get through a variety of witnesses. Other officers testified who responded to the scene after Officer Nelson shot Jesse. I found it interesting that most of these officers, despite being witnesses for the prosecution, seemed very deferential to the defense. I got the distinct impression that they didn’t want to say anything that would overtly implicate Nelson. One of the first responding officers to testify was Erik Wickman, who had been with the Auburn Police Department. As the prosecution questioned Mr. Wickman, I found it odd that instead of referring to him as Officer Nelson, he called him “Jeff.” While Mr. Wickman testified that it’s always better for two officers to respond to an incident, he was quick to clarify that it’s not always what happens, especially on short-staffed Fridays.

When the defense began their cross-examination of Wickman, it was one of our first chances to see Tim Leary in action. From the moment Mr. Leary began questioning Wickman, I could tell I liked him as an attorney. He had a jovial demeanor and questioned with such ease. Mr. Leary dripped style; I envied his tie collection. He had unmatched swagger. As I watched him work, the best way I could describe him was “wonderfully cocky.” He carried himself with a bit of arrogance, but it was endearing. As he questioned Mr. Wickman, he quickly honed in on the reality of policing in Auburn, where they live by the motto, “Do more with less.”

Through Wickman and other officers, the prosecution aimed to show that Officer Nelson acted recklessly by engaging with Jesse before backup arrived. However, Mr. Leary and the defense effectively rebutted that by getting officers to testify that waiting for backup wasn’t a requirement. While it might be considered best practice, it wasn’t always reasonable to wait.

At a certain point, we heard some very important testimony from the King County Medical Examiner, Dr. Brian Mazrim. Dr. Mazrim fit every stereotype I had for what I imagined a medical examiner would be like. He spoke in a monotone voice, everything he said was extremely matter-of-fact, and he was emotionless. I could tell he was absolutely brilliant, but he seemed like he might be difficult to work with.

As Ms. Eakes questioned Dr. Mazrim, he testified in excruciating detail about the wounds Jesse suffered, providing photo evidence of things I never imagined I would see. We saw it all—a blown-apart liver, bullets under the skin, and photos of Jesse’s brain. It was gruesome for me; I’ve been prone to pass out when my dog has a bloody paw, let alone seeing someone’s damaged insides. As I mentioned before, I have a thing about eye injuries, and Dr. Mazrim described Jesse’s eye socket being shot through and his eye being “ruptured” (I really didn’t want to hear about a ruptured eye).

Through his testimony, it became very clear to me that the first shot, which went through Jesse’s liver, was what killed him. The shot to his head was horrific, but it was not immediately fatal. That second shot passed through his eye and beneath the lower part of his brain. While there was bruising on his brain, it likely would not have been lethal. As Dr. Mazrim testified, I became more and more entrenched in my point of view. I kept thinking, “It’s going to take something very significant to make me think Nelson’s first shot was ‘murder.’ The second shot to the head seems completely wrong, but it didn’t actually kill Sarey. At this point, I would say: innocent of murder, guilty of assault.”

The defense pressed Dr. Mazrim and got him to say something to the effect that, absent a spinal cord injury (which Jesse did not have), a person could sustain a liver wound and still have enough energy to run across the street. This was a good attempt by Mr. Leary to justify Nelson’s second shot to Jesse’s head, but I wasn’t buying it. The mere possibility that some random person could theoretically get shot in the liver and still run didn’t change the fact that we clearly saw in the video evidence that Jesse didn’t do that.

For several weeks, witnesses came and went. We heard from multiple police officers who responded to the scene. In most cases, I felt like they helped Officer Nelson more than the prosecution’s case. In most of these police testimonies, the prosecution would hammer away at the point that Nelson should have waited for backup before engaging Jesse at the Sunshine Grocery. The defense would consistently counter that by getting the officers to agree that while it was good to engage with multiple officers, it was not required. With the testimony of all these officers, I ultimately came away with a feeling of sadness and regret. He should have waited for backup; that would have likely made all the difference, but he messed up royally. That said, it didn’t change much for me. What mattered to me was that once he was in the fight, was there a perceived threat that required deadly force? In my mind, just because he erred by engaging alone, that did not mean he couldn’t defend himself and should be potentially killed by a suspect. More and more, I was quite convinced that there was at least reasonable doubt on the first shot, but I continued to feel that the defense had a lot of convincing to do on the second shot.

We heard from multiple fingerprint and DNA experts about whose DNA or fingerprints were on various items, such as the gun and the knife. While the testimony was interesting, there was never anything definitive that could be derived from the analysis of those items. Even though Jesse’s DNA was on them, it didn’t indicate much beyond the fact that they had been fighting hand-to-hand in close proximity.

During the weeks of testimony, we heard from so many witnesses that a lot of them blurred together for me. At one point, we heard from another witness who was at the Sunshine Grocery, a few cars down from Mr. Woodard. This witness was adamant that Jesse was never a threat to Officer Nelson, but I dismissed that because Nelson’s body likely blocked much of the view. His testimony didn’t carry much weight for me, especially compared to Mr. Woodard, who had a much clearer view of the entire altercation. On cross-examination, I remember Ms. Murray coming at the witness like a bulldog. It felt as though she absolutely shredded his testimony, and her tone was filled with contempt. She was so harsh that I actually felt a bit uncomfortable watching her tear into him, and I wondered how it was playing with everyone else. She kept hammering away at where Jesse’s feet were, and highlighted inconsistencies in his interviews. Ultimately, I dismissed this witness’s credibility, but I was uneasy with how Ms. Murray conducted her cross-examination.

We heard endlessly about Officer Nelson’s training—from basic law enforcement academy to daily training bulletins to special full-day training sessions in the years leading up to the shooting. It was abundantly clear that Officer Nelson had failed to follow his training in many ways. Even so, I didn’t think that mattered much. All of that went out the window for me when Jesse supposedly grabbed for Officer Nelson’s gun. I hadn’t heard anything convincing from any witness that Jesse didn’t try to gain access to the gun, and I didn’t hear anything that convinced me Nelson would have known Jesse didn’t have possession of his knife.

One of the most poignant witnesses was also one of the quickest. On the afternoon of May 30th, Ms. Elaine Simons took the stand. I had noticed Ms. Simons in the courtroom gallery almost every day, but I didn’t know why she was there. We learned that Jesse had been a friend of her son, and that in high school, Jesse had lived with them for several years. Mr. Howard asked a few questions about how she knew Jesse, and she became visibly emotional. It was clear to me that Ms. Simons loved Jesse as if he were her son. She had stayed in contact with him even after he stopped living with them, even when his life wasn’t in the best place. Seeing Ms. Simons’ love for Jesse stirred emotions in me as well. After weeks of hearing detailed testimony about the shooting, I had started to feel numb to it, but her testimony refocused me on the fact that a fellow human being’s life had been tragically taken. 

At one point in her testimony, Mr. Howard introduced a photograph of Jesse into evidence. It showed a young man full of promise, completely different from the version of Jesse we had seen through the course of the trial. That photo humanized him in a way nothing else had up to that point.

Mr. Howard’s questioning of Ms. Simons lasted less than five minutes. It didn’t offer much to prove Officer Nelson’s guilt or innocence, but it did solidify the idea that Jesse was loved. After getting the photo admitted into evidence, Mr. Howard quickly concluded his questions, prompting Ms. Simons to ask, “Can I just…?” Judge Phelps immediately cut her off, as she was only allowed to testify when one of the attorneys was asking a question. When Judge Phelps asked Mr. Leary if he wanted to cross-examine, he simply responded in a kind, slightly demure voice, “Ms. Simons, thank you for being here, I don’t have any questions.” She was then dismissed. I was surprised that the defense didn’t ask her anything, but at the same time, I wasn’t surprised at all.

That photo of Jesse introduced by Mr. Howard would later become significant, though not because it swayed the jury in any way. There’s been media discussion about problems within our jury during deliberations. It was reported that a couple of jurors were caught talking outside of full jury deliberations. One of the things they supposedly said was, “[We’re] not here to be best friends. The 12 of us are here because one person was killed and another is on trial.” When I get to the chapters about our deliberations, it will be clear that this comment was directed at me and the way I conducted myself. Another thing reportedly said out of turn between those two jurors was about a photo the jury looked at during deliberations of someone who was “an attractive, clean-cut man.” I’m convinced they were referring to the photo of Jesse that Mr. Howard introduced during Ms. Simons’ testimony. I never could have known at the time that photo would lead to such controversy.