A key eyewitness testified this week in the murder trial of Auburn police officer Jeff Nelson, who fatally shot 26-year-old Jesse Sarey on May 31, 2019. But the sparring in court over how to limit the witness’ testimony underscores the complexity of prosecuting law enforcement's use of force.
In August 2020, Nelson was the first officer charged under I-940, a voter initiative passed in 2018 that legal experts said removed a nearly impossible barrier requiring prosecutors to prove force was used with malice or evil intent. Before Sarey, Nelson had shot and killed two other people on duty, but prosecutors are prohibited from using those cases as evidence in his trial.
The fourth day of the officer’s trial Wednesday began in fits and starts as attorneys argued over what testimony was appropriate for the jury. After apologizing for referring to the lawyers as children, Judge Nicole Gaines Phelps asked the two sides to be less adversarial.
Prosecutors alleged Nelson should have waited for backup before arresting Sarey for disorderly conduct outside a convenience store. Instead, they said the officer unnecessarily escalated the confrontation with Sarey by picking him off the ground, wrestling and punching him in the head repeatedly.
Nelson has said in statements that he shot Sarey the first time because he’d grabbed the officer’s holstered handgun. He shot Sarey a second time, in the head, saying he feared Sarey had a knife that fell off his tactical vest.
In another case where Washington police have been charged with deadly force since 2018, three now-former Tacoma officers were acquitted last year in the March 2020 death of Manny Ellis. The officers’ defense attorneys sowed doubt about parts of the struggle that the two eyewitnesses may have missed and what may have transpired before they were able to hit record on their cell phones. The defense argued that the uncertainty about whether Ellis died of suffocation or a drug overdose also hampered the case tried by the state Attorney General’s Office and special prosecutor Patty Eakes.
In Sarey’s death, the King County Prosecuting Attorney’s Office had an abundance of evidence at its disposal: multiple angles of surveillance video, audio recorded from the officer’s patrol car, and witnesses who watched what started as an arrest for disorderly conduct end in gunfire a minute later. Eakes, a former King County deputy prosecutor, was also hired to try Nelson, along with former federal prosecutor Angelo Calfo and other private attorneys.
“Not to excuse Mr. Sarey's conduct — he should have complied,” Calfo said in his opening statement. “But a police officer should use his training to avoid the need to use force. That's not what happened.”
Still, the jury’s verdict will rely heavily on Nelson’s perspective and whether another “reasonable” officer would have found it necessary to fire their weapon. In the Tacoma case, two of the three officers who were acquitted testified at their trial. Nelson’s attorneys told the jury in opening statements that the officer plans to take the stand.
Key eyewitness testimony
Five years ago this month, Steven Woodard rode shotgun with his wife to the Sunshine Grocery convenience store in Auburn and had a front-row seat when Sarey was killed. Sarey, the son of Cambodian genocide survivors who became homeless after aging out of foster care, had just asked Woodard for spare change to buy a drink.
Woodard told the jury that he then watched Sarey dig through a cardboard box of trash looking for an unfinished beverage and sit against the wall of the store when he didn’t. Nelson walked up to Sarey shortly thereafter.
Woodard compared the six-foot-tall officer standing over five-foot-five Sarey to “David and Goliath.” According to court documents, the officer had just confronted Sarey about throwing things at cars in a different store parking lot and followed him when he jaywalked across the street.
After Nelson ordered Sarey to get up, Woodard said Sarey began flailing his arms strangely, as if he were intoxicated or had a mental illness. Sarey’s family has said they believe he was suffering from a mental health crisis.
At one point, the jury was ordered to destroy notes from an unedited video of an interview with Woodard from that day. The jury wasn’t meant to hear Woodards’ opinion on Sarey’s arrest.
“Officer Nelson's like, 'calm down calm down,' and then he went to restrain him because I think he was gonna put him in handcuffs for being here or loitering or God only knows what,” Woodard said at the scene of the shooting. “I kind of thought it was (expletive) the way the cop was (expletive) with him because he wasn't doing anything.”
Since that day, prosecutors said Woodard has come to support Sarey’s family. Defense attorneys had wanted to question Woodard about their relationship to show his bias, but prosecutors warned he might tell the jury he thought Sarey’s killing was unjustified.
Woodard put on his favorite T-shirt to testify, which is the same one he wore on the day of the fatal encounter, because it reduces his anxiety. He requested not to be shown on the court's live stream or in news photos.
Attorneys grilled Woodard for hours about his description of Sarey’s behavior—flailing, grappling, reaching—with the officer’s defense lawyers using Woodard’s prior statements to paint Sarey as the instigator of the struggle.
“And Mr. Sarey kept fighting Officer Nelson,” defense attorney Kristen Murray said to Woodard on the stand.
“He kept trying to get away, yeah,” Woodard replied.
“He kept fighting Officer Nelson,” Murray said.
“No, I wouldn't call that fighting,” Woodard responded.
Woodard testified that during the struggle, Sarey’s hand brushed the butt of the officer’s handgun. The officer then shoved Sarey into an ice freezer outside the convenience store and shot him in the torso.
Woodard testified Sarey looked like “he was dead, like he was dying. There was blood coming out of his mouth that was like old tomato paste.”
After Sarey hit the ground, Woodard testified that the officer cleared a jam in his gun.
“I seen him look at me and point his gun towards my direction,” Woodard said in court. “And then come back and shot Jesse point blank in the head.”
Audio recordings played for the jury captured Woodard’s wife coming out of the store and asking Nelson if he was OK. Woodard said Nelson barely spoke and crouched down into a squat until other officers arrived.
“And you described him as devastated?” Murray, Nelson’s attorney, asked Woodard on the stand.
“Yeah, at the time, that’s what I said, yes,” Woodard said.
The city of Auburn previously settled civil rights claims from Sarey’s family for $4 million. According to The Seattle Times, the city has paid close to another $2 million to settle other litigation over Nelson’s actions as a police officer.
Information from The Associated Press has been included in this story.
