Chapter 12 - Well…that’s one way to kill the mood

 “I am usually very agreeable, but I can’t do that here. This case against Officer Nelson just isn’t beyond a reasonable doubt.”

Juror #2

 

The entire weekend following that first day of deliberations—especially after dodging the angry mob we’d inadvertently encountered that Friday evening—was filled with anxiety. I could barely sleep, toiling over our deliberations, so certain of my not-guilty vote on count one, yet only two others shared that view with me at this point. Additionally, the scene in the rotunda that evening left me panicked about what fallout might come from our decision in this case. It suddenly became viscerally clear that whatever verdict we rendered would be met with anger from one side or the other.

By the time Sunday came around, I was resolved to write a letter to my fellow jurors, making the strongest case possible for why nine of them should shift their opinions and agree with my certainty that Nelson was not guilty of murder in the second degree. I ended up with a small-print, seven-page letter that I carried in my pocket on Tuesday morning when we arrived for our second day of deliberations.

As we gathered, waiting for the bailiff to lead us back into the deliberation room, I approached our foreperson and asked if I could have the floor first once we began. He agreed, and everyone waited solemnly and silently for the day to start.

Once we were all in the room, conversation began, and I wasn’t the only one struggling with the riot we’d encountered leaving the courthouse on Friday. A few of us admitted to having restless days following everything that occurred.

After a few minutes of settling in, our foreperson kicked things off, attempting to focus the day by asking those convinced of Nelson’s guilt to present concrete evidence for their view. He then encouraged the three of us in the minority to clearly articulate the questions that remained unanswered for us. He wanted us to share anything and everything on our minds.

With those things said, he let the group know I’d asked him earlier for the first word of the morning to read a letter I’d written. I then stood up, thanked him for the courtesy, and proceeded to read the following letter.

 

My fellow jurors,

I want to start off by saying, I would have never imagined being in this position where I am one of just a few who are the stumbling blocks to a unanimous verdict. My friends would tell you that I am generally an extremely agreeable person, almost frustratingly so at times. Every fiber of my being wants to be open-minded to what nine of you feel certain of. While I respect, DEEPLY, the confidence you all have regarding the guilt of Nelson of murder for count one, I have doubt about that, and that is not something that is going to change for me. I say that because I feel so strongly that we have to know, with certainty, a number of things, and they are not “knowable” things. Some of this I have said multiple times:

·         I know he completely screwed up by even heading over to the Sunshine Grocery when there had been no new call of any “disorderly conduct”—he was stupid for doing that.

·         I know that he should have just waited for his backup to arrive before engaging Jesse.

·         I know that he should have waited for his backup before moving to arrest Jesse.

·         I know that all of this was completely preventable if he just would have thought about what he had been trained.

·         I know that I am angry his unbelievable stupidity led to Jesse Sarey’s death. I am heartbroken over that. And not to get all religious on you, but I am not saying that lightly. I believe that Jesse is a beloved child of God. It is horrible to me that he was killed.

But here is what I don’t know:

·         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.

o   I know that I heard Woodard say that Sarey was going for his gun and that freaked him out.

o   I know that Woodard has a different memory today, and I don’t think he perjured himself, but Woodard also thought Nelson pointed that gun in his direction during the two shots, and that didn’t happen.

o   I know that memory is a funny thing, and we can convince ourselves of something that didn’t actually happen that way (especially when significant trauma is involved).

o   So I must give the most significance to what Woodard said in that moment, which was that Sarey was trying to get the gun.

·         I don’t and can’t know if Nelson believed Jesse had the knife.

o   But if he did, I know that he had a “good faith” belief that he was under imminent threat and therefore “justified.”

·         I don’t know and can’t know what a similarly situated officer would have done. It was testified that all situations are different.

o   I think a similarly situated officer would have stepped back further and given verbal commands before shooting, but I don’t know that.

o   I know that Haug is of the opinion that a similarly situated officer would act differently, but it is just that—an opinion. And we have instructions about that, I assume, for that very reason.

·         I think it is possible that Nelson knew he had control of the situation and yet he shot anyway. But given the testimony, I can’t know this.

·         I think it is possible that Nelson knew the knife was not really a lethal threat to him, but I can’t know this.

o   I know that officers are trained that a knife is a threat.

·         I think the wristband with the flash of metal could be a red herring, but I don’t know.

·         I think it’s possible he got amped up and mad that Sarey fought him like he did and shot him not because he was an imminent threat, but because he was mad and emotion took over. But I don’t know this.

You see, I can think a lot of things, but for me, I have to know. And I am sorry, but I just don’t see any possibility that I can know.

And here is the key thing for me: we cannot get it wrong on the side of guilt. It needs to be iron-clad on the guilt side. I can’t live with myself if I go along and find him guilty beyond a reasonable doubt when I believe with every fiber of my being that there is so much reason to doubt. I can live with myself if we get it wrong on the not-guilty side. Our justice system is designed to be that way. To be clear, I won’t like being wrong on the not-guilty side, but I would think we can all agree that is the lesser of two evils.

So that’s where I am at, and while I fear this sounds pig-headed, my position is not going to change. I don’t say that to be intransigent but to hopefully frame how to best proceed. There is an instruction that says if even one person has a doubt, essentially that person should not just go along with the rest. I am obligated not to just go along with the majority. It’s an integrity thing to me at this point.

So for our discussions going forward, I believe we should probably frame things in terms of how each of us knows, beyond a reasonable doubt, that he is guilty. I think it is important for us to be clear on where we are. The question at hand is really… “can I live with the idea that I think he is guilty, but I don’t absolutely know?”

Or…are we going to be hung on count one?

I respect each of you deeply. Thank you for listening. Again, I am not saying all that to be a jerk. I just want to be fair to everyone’s time. I don’t want you to go around and around and hate my guts because you never get me to move.

Sorry, one last thought… I submit to you that if things were reversed and I were super confident in guilt, but there was just one person with deep conviction that reasonable doubt existed, I would quickly move to not guilty because of that itself. The deep conviction of another juror would be the reasonable doubt. It is that important to me that we would err on the side of not guilty that I would move quickly to the not-guilty side.

 

A palpable silence hung over the room as people digested what I had just passionately read out. After a minute or so of contemplation, our foreperson suggested we take a quick five-minute break to grab coffee or a snack.

After that brief pause, we all sat back down, and the first person to react to my speech was juror #11. She expressed that my words echoed her own sentiments and that she similarly would not be changing her not-guilty vote.

Juror #2 also agreed, saying that while he was normally agreeable, he couldn’t go along here because he just wasn’t sure beyond a reasonable doubt. He said he wanted everyone to stay fact-based, feeling that we weren’t necessarily doing that. He was worried that both sides were being swayed by emotional manipulation.

Juror #8 spoke up next. She had initially voted not guilty on count one, but by the end of the day on Friday, had switched to guilty. She said she’d struggled over the weekend with Nelson’s guilt versus innocence, leaning back toward not guilty. Hearing my letter had solidified her questions, and she said she couldn’t feel good about a guilty verdict. She expressed a desire for us to reread the instructions.

In that moment, hearing that my letter had swayed #8 back to not guilty gave me a sense of hope. I knew jurors #11 and #2 were resolute with me on the not-guilty side, but getting #8 to move back felt significant. I hoped that maybe my plea had resonated with more of the jurors.

That hope was short-lived as we continued around the room. The remaining jurors felt no different after my ardent presentation.

Juror #5 returned to the fact that Jesse’s hands were clenched around dollar bills, saying there was no way he could have been going for Nelson’s gun or knife. She was incredulous over the fact that Nelson didn’t follow his training.

Juror #3 repeated what I felt was a could’ve, would’ve, should’ve mindset. He said Nelson should have waited and had the dog he could have used. He agreed with #5 that Nelson was guilty because he didn’t adhere to his training.

At that point, I retorted, “But does that make him guilty of murder? If I screw up at my job, I get fired. Are you saying that if a police officer screws up, they should go to jail?” Incredible to me, a few jurors nodded yes.

Juror #1, who worked in the medical field, verbally responded, saying that if she made a serious mistake at her job, there were scenarios where she could go to jail. She argued that, like her profession, a police officer shouldn’t be allowed to make a fatal mistake with complete impunity. That notion didn’t sit well with me; I worried about public safety’s future if there was no grace for officers making terrible mistakes. To me, convicting a police officer of murder for a mistake seemed wrong, unless it was a malicious act. I said something to that effect, and #1 quickly and emphatically countered, “But malice isn’t the standard of law; it’s about what a similarly situated officer would do.”

Juror #7, who rarely spoke, jumped in to offer his take. He argued that if Nelson believed Jesse was reaching for the gun, then the video shows Nelson stepped back and controlled it. If he was in control of the gun at that moment, how was he threatened by an unarmed man? He claimed Jesse wasn’t fighting, and I challenged him on that as well as on Jesse being unarmed. I asked how, in light of Woodard’s testimony, he could say Jesse wasn’t fighting or was unarmed. #7 replied that he didn’t put much stock in Woodard.

Juror #1 spoke up again, saying that as strongly as I felt about a not-guilty verdict, she felt just as strongly on the other side. She expressed disgust as an Auburn resident over what she saw as a culture within the Auburn PD of quickly clearing calls without regard for the people behind those calls. She wondered aloud if Jesse was somehow seen as less valuable. Then, to adhere to #2’s request, she moved to a more fact-based argument. She suggested instruction #22 was crucial in understanding what “good faith” meant. She questioned whether another officer would have done what Nelson did, especially with multiple people testifying that they wouldn’t. She went back to the training and reminded us of testimony that a cadet would automatically fail scenario testing if they didn’t wait for backup in emergencies. She was adamant that nothing in the defense’s cross-examination of Haug made him less credible. For her, Haug was key. She pointed out that if the knife had truly been a threat, or if Nelson felt it was, a reasonable officer would have moved away, not engaged further. She passionately stated that, per instruction #22, there was no good faith here.

Anthony, juror #6, spoke after #1, focusing again on Nelson’s extensive training, which he felt Nelson had seemingly ignored. Anthony shared that he had a non-verbal grandson, expressing fear that something like what happened to Jesse could happen to him. He insisted Nelson broke his oath to protect and serve, passionately declaring that officers train for hundreds of hours to prevent incidents like this.

Our foreperson spoke up next, focusing tightly on the instructions. The main question he posed was whether a similarly situated officer would have done what Nelson did. He established that this was the key issue we needed to come to terms with. He agreed with Anthony that officers are trained repeatedly so that, in critical moments, they don’t make the wrong choice. The foreperson expressed his belief that, despite all of Nelson’s training, he made multiple bad decisions that no similarly situated officer would have made.

After going around the room again, it was clear that my speech hadn’t shifted anyone’s views aside from juror #8’s. I was disheartened. Some arguments for guilt were compelling, but at that point, I was determined not to give an inch. I told everyone that, as I had said in my letter, I wouldn’t get there with them. I emphasized that it was more likely people would arrive at a not-guilty verdict than the other way around. I added that if people didn’t believe they could ever reach a not-guilty verdict on count one, we should consider signaling to the judge that we’d never get anywhere on it.

The foreperson replied that no one should change their mind just to go along, and that we were getting a pretty good sense of where everyone stood. He then asked if we should submit how we felt to the judge right away. We agreed to take a vote and decided that we should.

Without giving it much thought, instead of filling out a question on the supplied form, we started filling out the verdict forms instead. I guess we figured, why wouldn’t we fill out the verdict form since we had a unanimous verdict on count two?

For posterity’s sake, we took another vote on count one, which again came out 8-4 in favor of guilt. Our foreperson filled out the forms, with count two showing a guilty verdict and count one indicating we couldn’t reach a consensus.

As I said earlier, our main goal was to signal to the judge that we would not reach unanimity on count one. We didn’t expect Judge Phelps to accept that after just one and a half days, but we weren’t sure how else to start sending that message. We planned to report each day that we couldn’t reach consensus until she finally accepted it.

We had no idea about the commotion we were about to cause. In hindsight, it seems obvious that we should have simply asked how long to keep deliberating if we couldn’t reach a decision on one of the counts. By filling out the verdict forms, we inadvertently caused significant issues for the court, and we later learned that our actions made headlines.

We called the bailiff, and the forms were turned in. Once that was done, we all sat there chatting about all kinds of things other than the case. We were resolved to sit back and wait until we were inevitably instructed by Judge Phelps to keep at it.

As I sat there next to Anthony, it gave us a chance to talk more about our lives and our shared faith. I really enjoyed getting to know him better, and my respect for him only grew. That camaraderie would become stronger as our deliberations continued. Throughout our discussions, he and I would make points to each other, even though we saw things differently. We were able to do so respectfully, in a way that’s rare these days. It was refreshing to connect as two people committed to doing the right thing, despite having different points of view.

A few hours went by, and in the later part of the day, we were summoned back into the courtroom. There stood Nelson, all of the attorneys, and a stern-looking Judge Phelps. When we were all seated, she proceeded to simply instruct us to read the instructions the court provided us and to go back to deliberations.

We had no idea that we’d created an unprecedented situation, where the judge now knew our verdict on one count but not the other. We didn’t realize this fact caused such disorder that Judge Phelps had to seek advice from a senior superior court judge to decide what to do with us. With the other judge’s input, it was decided that just a day and a half of deliberation was nowhere near enough to declare a hung jury on one count. However, it created quite a conflict since the judge now knew about our verdict on count two. This raised the question of whether the prosecution and defense should be informed. The judges decided to hold back that information from the parties for the time being and sent us back to resume.

For the remaining couple of hours on Tuesday, June 25th, we watched more video, combed through the instructions, and pored over multiple pieces of evidence. It all felt futile, as we were certain we’d never agree. We could have stayed until 5 p.m., but by 4 p.m. we were ready to call it a day. We called the bailiff and let her know we wanted to head home.

While everyone remained polite, it had been a hard and frustrating day. It was tough for me to realize I was on a different page than so many other jurors, and I know the eight people firmly set on a guilty verdict were frustrated that the four of us “not guiltys” were so unmovable. None of us saw a point in doing this all again tomorrow, but we knew we had to.