Chapter 9 – Are We Nearing the End?

 

“When Haug testified, that was all I needed. His testimony was really all that mattered to me.”

Juror #13 during deliberations

 

At the time Juror #13 said that, I couldn’t have disagreed more with his sentiment.

During the morning of June 10th, we heard from a couple of witnesses. The first was finishing testimony that had started the prior week. Russell Hicks, the assistant training officer during Officer Nelson’s academy training, testified about a variety of things related to what Nelson was trained on. He spoke about strategies for retaining one’s firearm and testified that Officer Nelson was explicitly taught to create distance from a suspect and tactically disengage if he couldn’t maintain control. Very importantly, he said Nelson was taught to give verbal warnings to a suspect before shooting, with repetition being key for these behaviors to become second nature.

A particularly poignant statement he made was that officers would actually fail the test if they called for backup but didn’t wait for it. I found Hicks’ testimony disturbing because that’s exactly what Nelson did—he called for backup but didn’t wait. To me, that was so dumb of Nelson. Why in the world didn’t he just wait a few minutes? I was mad to hear that he really should have known better, but I also recognized that this basic training took place more than a decade before the tragic incident at the Sunshine Grocery in May of 2019.

I believe the most important thing Hicks said he taught Nelson was that if there was a firearm malfunction, you need to tap the weapon, re-rack it, and then assess the situation, as things might have changed in the seconds it took to clear the malfunction. In Officer Nelson’s case, I saw that opportunity to "assess" as a gift that he chose to ignore. While Officer Nelson was clearing his jammed gun, video evidence showed Jesse Sarey falling away from him and becoming immobilized. Nelson had an opportunity to pause and assess further, but he didn’t. Instead, he fired a second shot into Jesse’s head, and I believe there was no reason for it.

While Mr. Hicks was very calm and collected on the stand, I got the distinct impression that he was monumentally disappointed in how much Officer Nelson failed to apply his training. After hearing Mr. Hicks, even though Nelson failed so badly, I still came back to the idea that if he truly felt his life was in danger, the first shot into Jesse’s abdomen might have been justified. But I walked away from Hicks’ testimony even angrier about Nelson taking that second shot.

Following Hicks’ testimony that morning, the prosecution called the Auburn police chief to the stand. What was stunning about the chief’s testimony was how incredibly brief it was. The prosecution tried to get him to say that Nelson didn’t follow his training, but Chief Caillier seemed to do everything he could to dodge the questions. He clearly didn’t want to be on the stand, and I got the distinct impression that he thought it was wrong for Officer Nelson to be on trial at all. The exchange had a bit of a hostile tone, and ultimately, his testimony lasted only about 10 minutes.

Right after lunch on June 10th, Mr. Howard, for the prosecution, called Scott Haug to the stand. Mr. Haug, a retired chief of police from Post Falls, Idaho, is now a consultant to law enforcement agencies. He had held various positions at the Post Falls Police Department—starting as a patrol officer, then becoming a training officer, sergeant, captain, and eventually chief. After his service in Post Falls, Mr. Haug founded a consultancy, where he now serves as an expert in arrest techniques and use of force. He’s involved in training law enforcement agencies, reviewing policies, and testifying as an expert witness in cases like this one. Despite Mr. Howard being a bit disjointed in his questioning, he effectively established Mr. Haug as a true expert on all the issues related to Officer Nelson’s interactions with Jesse Sarey.

As Mr. Howard conducted his questioning, I started to get the distinct sense that Mr. Haug was going to be the climax of the prosecution’s case against Officer Nelson. It seemed Howard’s questions were zeroing in on a few key points: Nelson should have slowed everything down during the interaction, he should have created distance between himself and Jesse, he should have tactically disengaged, and he should have used an alternative method, like deploying his K9 or using a taser, instead of shooting Jesse.

The testimony of Scott Haug went on for a long time, and it seemed like Mr. Howard kept asking the same questions in different ways, dozens of times. It was difficult testimony for me to stay focused on because, while I saw Mr. Howard as a brilliant attorney, he seemed to struggle a bit with his style of questioning witnesses. As I mentioned before, his questioning was a bit disjointed, and each question was sprinkled with multiple “ums.” I remember feeling like there was too much focus on minutiae, and I thought to myself, “Oh my gosh, we get it, land the plane, Mr. Howard.” It got to the point where I just closed my notebook multiple times and took a break from taking notes.

I sat there, listening as intently and with as open a mind as I could, but I was stuck on the fact that Officer Nelson should have done all kinds of things differently. Still, if Jesse was a threat in that moment, Nelson was justified in taking the first shot. I thought all of Haug’s testimony was nice, but it felt like a situation where hindsight is always 20/20.

Truthfully, I got quite frustrated as the questioning dragged on because nothing I was hearing invalidated the idea that if Nelson believed Jesse was legitimately trying to gain access to his firearm, or if Nelson thought Jesse had his service knife, then Nelson had a right to defend himself by taking that first shot. Mr. Haug introduced the idea of what a "similarly situated officer" would have done. At the time, that didn’t mean much to me, but it would later hold big significance once we received our legal instructions for deliberations. In that moment, though, I thought it was all dumb—I didn’t care what another officer might have done. What mattered to me was what Officer Nelson felt he needed to do in that moment. I thought that if, during the struggle, Jesse tried to get Nelson’s gun, that was the key.

I was convinced Nelson had made serious errors in judgment in trying to arrest Jesse in the first place, but if that made him guilty of second-degree murder, it would have a chilling effect on law enforcement in Washington going forward. I knew I shouldn’t think that way and that I should only focus on the facts of this case, but I couldn’t help it. I couldn’t envision a scenario where I would declare him guilty for the first shot because I could never fully know whether he truly feared for his life.

The testimony dragged on, and I started to tune out completely because I was absolutely convinced he wasn’t guilty on the first shot, but guilty on the second. By occasionally closing my notebook and probably not having a great poker face, I fear I gave the defense a false sense of security that I was a solid "not guilty" vote. When I say that, I don’t mean there was anything the defense could’ve done to get a different outcome. I just wonder if my body language made the defense feel more secure than they should have, and if that impacted their strategy.

The defense had essentially promised in their opening statement that Officer Nelson would take the stand and tell us how he felt during the struggle with Jesse. Ultimately, the defense chose not to follow through, resting without calling Nelson to testify. While I don’t believe his testimony would have changed the verdicts, I think they made a huge error in making a promise they didn’t keep. I hate the idea that I might have influenced the defense’s tactical decisions. That said, I’ll readily admit that thinking I was a deciding factor in how they handled their case is probably the height of narcissism.

Haug’s testimony continued, and I kept hoping the questioning would end, as I was so convinced it wasn’t important. Howard drilled into whether a similarly situated officer would have waited for backup, and Haug adamantly stated they would have. Haug testified that Officer Nelson had a critical decision point where he failed—when he decided to approach Jesse while he was seated and not causing a big disturbance. Haug argued that a similarly situated officer would not have engaged without backup because there was nothing urgent to address. He emphasized that all of Nelson’s training indicated he shouldn’t have engaged Jesse the way he did. He also pointed out that the Auburn handbook stated Nelson should not have acted that way, but he acknowledged that officers do have discretion when making arrests.

That was very important in my mind. I thought to myself, "Nelson can be guilty of violating all the policies, and he can be the dumbest person on the planet for not waiting for backup. He could even be the only person in the world who would have taken the actions he did, but does that make him guilty of murder?"

Haug continued. He stated that a similarly situated officer would have gotten out of their vehicle and used time, distance, and cover—they wouldn’t have approached Jesse. Then, he said Officer Nelson reached a second critical decision point when he grabbed Jesse, which was another big error.

As I’ve said, I never questioned whether Officer Nelson completely blew it—Haug made it so clear that he did. My questions centered around whether, in spite of Nelson’s stupidity, even though he created the dangerous situation, Jesse was still ultimately a threat Nelson needed to defend himself against. Haug went on to discuss that Nelson’s gun was in its holster, where safety mechanisms would’ve made it very difficult for Jesse to get a hold of the firearm. He argued that Nelson had control of the gun the entire time, so deadly force wasn’t required. I asked myself, "What about the knife, though?"

To me, all of Haug’s points were fair, but they felt like perfect-world scenarios. I didn’t feel like Haug was giving adequate deference to the dynamic situation Nelson had created for himself.

When Ms. Scanlan finally got the chance to cross-examine Haug, I felt she absolutely shredded the assertions made during Mr. Howard’s questioning. I found Ms. Scanlan’s courtroom demeanor superb. She was brilliant at what she did and how she questioned witnesses. As she spoke to Haug, she zeroed in on the fact that officers can make innocent mistakes of fact. She painted a picture of Officer Nelson being completely calm in all his interactions with Jesse, and that it was only when Nelson calmly engaged with Jesse at the Sunshine Grocery that Jesse instigated a dangerous and unexpected altercation.

As Scanlan impeached Haug, she got him to concede that regardless of whether it was ill-advised to try to arrest Jesse, once Nelson stated, “You are under arrest,” Jesse should not have been allowed to escape. To me, that was an important point—once Nelson committed to the arrest, right or wrong, he had to follow through, along with all the consequences that came from that decision. Ms. Scanlan also dismantled the notion that Nelson should have used his K9 or taser. Haug readily admitted that tasers are often ineffective, and introducing a dog into a situation with other witnesses around—whom the dog could mistake for a suspect—would have been chaos.

Probably the strongest point Scanlan made was how Haug seemed to completely ignore Woodard’s eyewitness testimony, which stated that Sarey was trying to get Nelson’s gun. She got Haug to admit that he discounted Woodard’s interviews from the day of the shooting because he believed Woodard’s later accounts, weeks and months later, were more reliable. That was a stunning point of view to me, as I felt the exact opposite. I believed Woodard’s immediate accounts should be relied upon most—those were the freshest recollections of how things happened.

Scanlan finally got Haug to admit what was the true crux for me: use-of-force decisions should not be made with 20/20 hindsight. When she hammered that point home, I looked over at Mr. Calfo, and he looked despondent. His face said he thought the prosecution’s case might be toast.

At that moment, I was absolutely convinced all the other jurors must be on the same page as me. I was positive that at least a majority likely felt Officer Nelson was not guilty on count one. I still solidly felt he was guilty on count two, and I wondered if our biggest battle in deliberations would be about that count.

Mr. Howard had a few more questions for Haug before finally closing out his time on the stand. Toward the end of Haug’s testimony, Mr. Howard asked two questions that ended up becoming very important:

Howard: “Would a similarly situated officer have used deadly force with respect to the first shot?”

Haug: “No.”

Howard: “Would a similarly situated officer have used deadly force with respect to the second shot?”

Haug: “Absolutely not.”

Shortly after these questions, Mr. Haug was released from questioning, and we heard the words we had been waiting to hear for weeks: “The state rests, Your Honor.” What a relief it was to hear those words. The state was finally done, and we could move on to the defense’s case. I pondered in that moment, “Would the defense take as long as the prosecution? If so, we’re going to get deep into July before we finally go to deliberations.”

That afternoon, the defense called a few witnesses who were not terribly significant. In an attempt to show that Officer Nelson was not the aggressor the prosecution tried to make him out to be, they called a records analyst who testified that the EMS records indicated Officer Nelson was injured by Jesse. Following that witness, they called a representative from the maker of the holster that Officer Nelson used. The defense worked to get that witness to say it was possible for a suspect to disengage the safety on the holster and gain possession of the firearm. There was some back-and-forth between both sides with this witness, but by the end of the afternoon on Wednesday, June 12th, that witness was released, and we the jury were let go for a long weekend. While there would normally be court on Thursday, for some reason, the court was going to take a break that day. I was a bit bummed that court would not be in session that Thursday because I was so ready for the trial to be over. I was of the mindset that it would be great to be in session as much as possible so the case wouldn’t drag on for weeks and months.

We all arrived at court on Monday, June 17th, and headed upstairs as we always did. That morning, I turned to one of the other jurors and wondered aloud how many witnesses the defense might have. Fairly quickly, we were led into the courtroom. We took our seats, and Judge Phelps said, “Okay, Defense?” Ms. Scanlan quickly stated, “The defense rests, Your Honor.” I was stunned. I did not see that coming from a mile away. Suddenly, things got very real. I could not believe that we were finally going to start deliberating this case soon. I sat there, flabbergasted, that the defense had basically decided not to put on a case. I was shocked, but I also felt like I understood why they made that decision. To me, they had made their case on count one through the prosecution’s witnesses. If they had made their case already, why risk any damage by calling new witnesses that the prosecution might tear apart? That said, I thought they really messed up if they wanted to make a case about the second shot. I did not believe they provided many good arguments about why Officer Nelson didn’t adequately assess the situation and hold off on firing the second shot into Jesse’s head. I sat there, questioning whether I had heard things correctly in Ms. Scanlan’s opening statement weeks ago. Didn’t she say we would hear from Officer Nelson? Didn’t she promise us that? I wondered if I had misheard that (I know now that I didn’t).

It was all so jarring that after weeks of witness testimony, we were unceremoniously finished with all of that. As quickly as we arrived at court that Monday, we were released for the day so the judge and attorneys could prepare for closing arguments and our jury instructions on the law. We were told to come to court the next day for just an hour for Judge Phelps to instruct us on the law, and then we would hear closing arguments on Thursday. Walking away from court that morning, none of us could believe that we would finally be able to discuss the case amongst each other by the end of the week.