Chapter 10 - Now you tell us!

 

“They said he only had a second to shoot once he cleared the gun. I want you to think about that. Did Officer Nelson—did the defendant—only have a second to shoot? HE HAD AN ETERNITY TO WAIT! He could have waited an hour! There was nothing happening that required him to shoot!”

Angelo Calfo

 

This statement from Mr. Calfo during his closing argument was echoed by Anthony (#6) during our deliberations. It's a statement that still reverberates in my mind to this day.

On Tuesday, June 18th, we returned to court for Judge Phelps to read our instructions for deliberations. The very first statement in the instructions was as follows:

“It is your duty to decide the facts in this case based upon the evidence presented to you during this trial. It also is your duty to accept the law from my instructions, regardless of what you personally believe the law is or what you personally think it should be. You must apply the law from my instructions to the fact that you decide have been proved, and in this way decide the case.”

I remember thinking, Well, now we finally get to hear what the actual law is. Throughout all the testimony from the myriad witnesses, I sat there listening, but I didn’t have much of an idea what the law actually said. I understand that’s by design for some reason. Our trial-by-jury system always works this way, where a jury hears all the evidence before being presented with the law.

That said, I found it a bit strange. We, the jury, sit there for over a month, hearing all kinds of things and forming all kinds of opinions, but weeks later, we’re given the actual law and told to re-filter all of our thoughts through it. It’s a bit jarring.

I sat there listening, and I wondered: with the sheer volume of testimony and evidence we saw, could we keep it all straight, even with the great notes I knew I had taken? When it came down to it, I just hoped that if I keyed in on one particular element, maybe another juror would focus on something entirely different, and that would generate discussion.

As I listened to the instructions, I also found it strange that the attorneys even get to make opening and closing statements at all. Part of the instructions explicitly state that the lawyers’ remarks, statements, and arguments are not evidence, and we must disregard them if they’re not supported by the evidence or the law in the instructions. The instructions also emphasize that our decision shouldn’t be based on emotion, yet so much of what the attorneys say in their opening and closing arguments is designed to evoke just that.

The reading of the law and instructions lasted about twenty minutes. As Judge Phelps went through each instruction, a few points stood out:

·         Instruction No. 3: “Reasonable doubt is one for which a reason exists and may arise from the evidence or lack of evidence. It is such a doubt as would exist in the mind of a reasonable person after fully, fairly, and carefully considering all of the evidence or lack of evidence.”

At the time of hearing this, I was absolutely certain there was tremendous reasonable doubt regarding Officer Nelson’s first shot. I was 100% confident that most of the other jurors must have felt the same way.

 

·         Instruction No. 10:  “The defendant is not required to testify. You may not use the fact that the defendant has not testified to infer guilt or to prejudice him in any way.”

Hearing this was interesting. I thought, Okay, that is fine and all, but they did promise he would testify and then he didn’t. I wasn’t going to infer anything from that except that the defense felt confident in their case, but maybe Ms. Scanlan shouldn’t have made that promise.

·         Instruction No. 13: “A person commits the crime of murder in the second degree when he commits the crime of assault in the first degree and in the course of and in furtherance of such crime he causes the death of a person other than one of the participants unless the killing is justifiable.”

Whoa—that is one, big run-on sentence! I knew that I’d need to re-read this instruction many times to fully grasp what it was actually saying.

 

·         Instruction No. 19: “A ‘participant’ in a crime is a person who is involved in committing that crime, either as a principal or as an accomplice. A victim of a crime is not a ‘participant’ in that crime.” 

Some of the previous instructions centered around whether Jesse was a “participant” in the crime of assault in the first degree. These instructions seemed to circle around each other in a lot of ways. If Jesse was the victim of a crime, #19 says he cannot be a participant, but #14 said there was reasonable doubt if he was a participant. I knew from the moment Judge Phelps read #19 that there was some circular logic to untangle.

 

·         Instruction No. 22: “A peace officer shall not be held criminally liable for using deadly force with a good faith belief that such act is justifiable. ‘Good faith’ is an objective standard. A peace officer acts in ‘good faith’ if a similarly situated reasonable peace officer would have believed that the use of deadly force was necessary to prevent death or serious physical hard to the peace officer or another individual.”

There was that phrase again—“similarly situated officer.” It had come up during Haug’s testimony, and now here it was in the instructions. I knew we’d need to discuss this one a lot.

Once Judge Phelps finished reading the document, we were dismissed for the day with instructions to return two days later for closing arguments.

Bright and early on June 20th, we returned to court for closing arguments. As we entered the courtroom, Judge Phelps immediately made a point of asking us to put a big X on a page in our notebooks to ensure that any notes taken after that demarcation were from the closing arguments. She then asked if any of us had seen or heard anything about the case since we left on Tuesday. I found it a bit odd that she asked this right then, as she reminded us daily to avoid any exposure to information about the case. At the time, I didn’t think much of it—I just assumed it was one final assurance to all parties that we, the jury, had followed the instructions.

I later learned that her question was prompted by an incident that had occurred earlier that morning. Apparently, when Mr. Leary arrived at the courthouse around 6:30 a.m., he found flyers posted around the parking garage intended to sway us jurors against Officer Nelson. Mr. Leary quickly removed all the posters, but there was concern over whether any of us had seen them. When Judge Phelps polled us, everyone indicated they hadn’t been exposed to anything. Since none of us ever arrived earlier than about 7:15 a.m., I’m confident all the jurors were being truthful.

Ms. Eakes then began the state’s closing argument. She opened with the statement, “May it please the court, counsel, counsel, members of the jury, Jesse Sarey didn’t need to die.” I sat there, hearing her say that, and I wholeheartedly agreed. I don’t believe anyone in that courtroom could have disagreed with that statement. Had Officer Nelson abided by his training, waited for the backup he had called in, created more distance between himself and Jesse, or done any number of things differently, the shots he fired into Jesse’s body would never have happened.

Ms. Eakes went on to make those very points in her closing, stating that, as a result of those facts, shooting Jesse was not justified. As I listened to her, I continued to question that point as it related to the first shot. Was it, or was it not justified?

Ms. Eakes described how Officer Nelson “violently” punched Jesse seven times, emphasizing that Jesse was no match for those punches. I questioned her on that point; Jesse seemed to absorb those punches without much effect. In fact, Mr. Woodard had told police during his interview that Jesse seemed to have “Superman strength” when he saw him at the Sunshine Grocery that evening.

As Ms. Eakes spoke, I agreed with all her points about how Officer Nelson had so many better options than rushing in to arrest Jesse. But I saw things differently when it came to whether Jesse resisted what I believed was an unnecessary arrest.

As she continued her closing, Ms. Eakes focused on the instructions we had received two days earlier. She homed in on instructions that differed from the ones that piqued my interest. She began by emphasizing Instruction No. 12, which urged us to analyze each count separately. I’m not sure about the others, but I had divorced the two counts from the very beginning. That instruction wasn’t difficult for me to follow.

Ms. Eakes then discussed the individual counts, highlighting Instruction No. 14 for the first count of second-degree murder. As she read through what constitutes murder in the second degree, I remained confused by point 3 in the instruction: “That Jesse Sarey was not a participant in the crime of assault in the first degree.” What did that mean? Ms. Eakes went into great detail and argued that Officer Nelson should be found guilty based on this “to convict” instruction, but she didn’t address point 3.

What did it mean for Jesse to be a participant in the crime of assault in the first degree? We knew from Instruction No. 15 that assault in the first degree occurs “when, with intent to inflict great bodily harm, a person assaults another with a firearm or by any force or means likely to produce great bodily harm or death.” Woodard had emphatically stated that Jesse was trying to grab Officer Nelson’s gun. If that were true, wouldn’t that constitute first-degree assault by Jesse? Would resisting arrest—especially if Officer Nelson believed Jesse had a knife—constitute assault in the first degree? I didn’t know the answers to those questions, but Ms. Eakes didn’t offer any commentary on that point.

From there, Ms. Eakes turned our attention to the instruction that had stood out to me—Instruction No. 22, which defined what constituted “justifiable” deadly force. She emphasized the part that stated, “in deciding whether a peace officer acted in good faith, you should consider all the facts, circumstances, and information known to the officer at the time.” Ms. Eakes asserted that this included what Officer Nelson knew from his training.

I struggled with that assertion because it seemed difficult to me to deem someone as not acting in good faith simply because, in split-second moments, they didn’t instinctively follow their training. I tried to put myself in those shoes, and I thought about how there have been times when I’ve been trained on something, but in a heated moment, I acted contrary to that training.

She went on to highlight Instruction No. 24, explaining how the deadly force Officer Nelson used was not “necessary,” as there were reasonably effective alternatives available, and the amount of force he used was not reasonable. She essentially argued that there were other actions he could have and should have taken, which would have been effective in subduing Jesse.

My mind spun with various definitions of good faith, reasonableness, necessity, and what a similarly situated officer would have done.

Ms. Eakes continued for another 30-40 minutes, discussing the evidence they presented and what the witnesses had testified to. As she spoke, I became more certain of Officer Nelson’s guilt regarding the crime of assault in the first degree. However, I still questioned the second-degree murder charge. I kept thinking things like: training is great, but the real world is something else entirely; hindsight is 20/20; I don’t believe he “chose” to ignore his training, forgot his training in the heat of the moment; and so on.

She closed by stating, “I submit to you that the state has met its burden of proving both of these counts—both charges: murder in the second degree and assault in the first degree—beyond a reasonable doubt, and I ask that, based on the evidence, you find the defendant guilty on both of these charges.” At that time, I didn’t believe they had met their burden on the second-degree murder charge, and I have a feeling my facial expressions made that clear as well.

We took a quick morning break, and then it was the defense’s turn to deliver their closing argument. Ms. Murray wasted no time asserting that Jesse had indeed threatened Officer Nelson with a weapon. She countered the prosecution’s claim that Nelson had failed to follow his training, saying it simply wasn’t true. Ms. Murray detailed how witnesses had perceived Jesse as a threat, despite the prosecution’s attempts to argue otherwise. She spoke directly to where my mind was at—reiterating that even Scott Haug agreed Officer Nelson had the legal authority to arrest Jesse. Although I believed Nelson disregarded his training by moving in to arrest Jesse, Ms. Murray didn’t concede that. Instead, she argued that Nelson had the right to make the arrest and had gone to the Sunshine Grocery with that intention. According to her, Jesse created the dangerous situation, turning what should have been a routine arrest into a tragic outcome. This argument resonated with me concerning the second-degree murder charge.

Ms. Murray hit on what I believed as well: whether Nelson should have made different choices prior to engaging Jesse in hand-to-hand combat was one issue, but once Jesse grabbed for Nelson’s gun, the officer was justified in using deadly force. She focused on Steven Woodard’s testimony, particularly when Woodard said Jesse suddenly stood up during the attempted arrest. Ms. Murray emphasized that Woodard’s eye-witness account was more reliable than what we thought we saw on video, reminding us that video footage, especially from a distance, could be misleading.

Her argument struck at the heart of what I had been thinking. Woodard’s in-the-moment, eye-witness testimony was of paramount importance. He had been right there and essentially narrated the incident as it unfolded. While Nelson didn’t seem to give Jesse much direction, Woodard was telling Jesse to stop resisting and to go down to the ground.  Though Woodard was a bit of a wild card, he seemed to me to be the best witness we could rely upon for a true account of what happened. Ms. Murray drove home a key point for me: in his video testimony recorded within 30 minutes of the incident, Woodard clearly stated that Jesse had grabbed for Nelson’s gun, not just brushed against it but made a deliberate grab. For me, this was the most important piece of evidence presented during the trial.  I felt that if Woodard emphatically said that is what happened, that was all that was needed for there to be a reasonable doubt as to whether Officer Nelson was justified to use deadly force.

However, Ms. Murray’s defense of the second shot—and the charge of first-degree assault—didn’t convince me. She argued that Officer Nelson didn’t know whether the first shot had hit Jesse and had only a split second to decide whether to fire again. This didn’t hold water for me. Officer Nelson’s gun jammed after the first shot and he did exactly what he was trained to do, until he didn’t. The gun jammed and he quickly tapped it, he quickly racked it, but then he didn’t assess the new circumstances of Jesse clearly falling away from him. She tried to say that it was reasonable for Nelson to believe that Jesse might have had the knife, and he could have lunged at him with that knife. The problem with all of that is that the video showed otherwise, and both eye-witnesses testified that Jesse was falling backward and dying.

In her concluding remarks, Ms. Murray claimed the state had not proven Officer Nelson’s guilt; in fact, she said, they had proven the opposite—that his actions were not a crime. I agreed with her on count one, but her argument did nothing to change my mind on count two.

Unbeknownst to me, for closing arguments, the prosecution is allowed the final word. Mr. Calfo made his way to the podium to deliver the last remarks we would hear before being handed the case to decide Officer Nelson’s guilt.

The first thing Mr. Calfo stressed in his rebuttal was the notion of “reasonable doubt.” He pointed to the instructions we were given, explaining what “reasonable doubt” is. He argued that when we hear phrases like “could’ve,” “would’ve,” and “should’ve,” those do not meet the standard for reasonable doubt. When Mr. Calfo made that point, Ms. Murray quickly objected. He was visibly annoyed by her interruption, and after a minute or two of back-and-forth, he was allowed to continue.

Mr. Calfo then addressed where Ms. Murray had tried to create doubt without any supporting evidence. He focused on her argument that after the first shot, Officer Nelson didn’t know if he had hit Jesse. “Where did that come from?” he asked, incredulously. “Where is the evidence that would justify that assertion?” He implored us to review the video evidence showing Jesse falling to the ground after the first shot, not lunging at Officer Nelson. Then, Calfo said the statement that I thought was the most effective: “They said he only had a second to shoot once he cleared the gun. I want you to think about that. Did Officer Nelson—did the defendant—only have a second to shoot? HE HAD AN ETERNITY TO WAIT! He could have waited an hour! There was nothing happening that required him to shoot!”

It was such a poignant statement, and I believed it to be true. Had Officer Nelson assessed the situation after clearing his firearm, he would have seen that Jesse was incapacitated. He would have realized that Jesse was not doing anything that posed a further threat to him. He would have been able to do what I believe any other officer would have done—create distance between himself and Jesse, while still keeping his firearm aimed at the suspect. Had he taken the time to assess, he would have shouted commands at Jesse to stay on the ground. Instead, he quickly and jarringly shot Jesse in the head with absolutely no reason to do so.

Mr. Calfo summed up my feelings on the first-degree assault charge perfectly. He continued with similar points about speculation versus reasonable doubt for the second-degree murder charge, but by then, nothing could change my mind. I felt Officer Nelson was justified in taking the first shot but guilty for the second shot. Those judgements were absolutely locked in my mind.

Mr. Calfo spoke for another 15 to 20 minutes, and then we were done hearing arguments from either side. As she always did, Judge Phelps reminded us to avoid media or any research about the trial. She instructed us to come back bright and early the next morning to begin our deliberations. As she said those words, a chill came over me, realizing the burdensome responsibility we now had in deciding Officer Nelson’s fate.