Three weeks following his conviction on a felony murder and assault charge, Auburn police officer Jeffrey Nelson’s lawyers have filed motions for a new trial, and the recusal of the trial’s judge, citing misconduct, an “enormous” accumulation of errors, and deception and impartiality.

Nelson’s attorneys — Emma Scanlan, Kristen Murray and Timothy Leary, representing the Scanlan Law firm — filed the two motions on July 16, totaling 989 pages, for a new trial and the recusal of Judge Nicole Gaines Phelps from the case.

On June 27, a jury convicted Nelson of murder in the second degree and assault in the first degree for the on-duty shooting death of 26-year-old Jesse Sarey after multiple weeks of trial proceedings.

In the defense’s motion for a new trial, Nelson’s defense argued prosecutorial and judicial misconduct prevented his right to a fair trial.

“The breadth and scope of error is substantial,” the motion stated. “Moreover, the nature of the Court’s conduct is without precedent. Accordingly, the only appropriate remedy is a new trial.”

The motion alleges the prosecutorial team, represented by attorneys Patty Eakes, Angelo Calfo and David Howard, committed “egregious” and repeated prosecutorial misconduct: engaging in burden shifting, misstating the reasonable doubt standard entitled to a defendant to prevent a conviction, improperly commenting on Nelson’s right to remain silent, and personally vouching for the credibility of one of the state’s experts all while calling into question the credibility of the defense counsel.

The motion stated the court engaged in improper ex parte communications with an individual juror in the midst of the trial and with the entirety of the jury during deliberations, conducted a closed-door inquiry of a juror outside the presence of Nelson and his counsel over a defense objection, and engaged in coercive conduct with the deliberating jury.

Additionally, the motion alleged the court engaged in multiple instances of misconduct in regard to the jury’s preliminary verdict forms, including conduct “quite literally without precedent.”

Nelson’s defense stated the court hid the jury’s preliminary verdict forms and advised the parties the jury was unable to reach a consensus while having knowledge that the jury entered a verdict of guilty on the assault in the first degree charge; informed the jury and parties that the court was giving the jury “two clean verdict forms” to continue deliberations before proceeding to provide the jury with the original preliminary guilty verdict form on the assault charge and a new verdict form on the murder count, for which the jury indicated it was unable to reach a consensus; and refused to tell the defense the preliminary verdict of the jury to prevent the defense from trying to seek a “better outcome.”

“All told, the improper actions of the state and the court during trial, closing argument and deliberations, rendered invalid any verdict the jury returned thereafter,” the motion stated.

In the defense’s motion for the recusal of Judge Phelps and request for a visiting judge from a different county as replacement, the defense argued the court engaged in conduct that would create a perception that Officer Nelson was not provided with a fair, impartial, and neutral trial, in addition to violating the Washington State Code of Judicial Conduct by engaging in deception, impropriety and partiality.

As a result of Judge Phelps stating she consulted with other more experienced trial judges regarding the issue of preliminary verdict forms, the defense requested a judge from a different county be assigned.

“Some of the conduct forming the basis for this motion, namely, hiding the jury’s preliminary verdict forms from a criminal defendant, was undertaken after consultation with other unidentified judges in King County,” the motion stated.

The motion additionally stated Judge Phelps rebuked defense counsel in front of the jury and overruled defense objections to prosecutorial attacks on the defense counsel’s credibility, both violating code and creating a perception of partiality.

In one incident referenced in the motion, Judge Phelps reprimanded the defense counsel in front of jury members after the defense asked to address an issue outside of the presence of the jury.

“Jury, unfortunately, the attorneys don’t know how to follow instructions, so I’m going to go have you step outside for a moment,” Judge Phelps stated in the interaction referenced.

In the event the court denies the motion for recusal, Nelson’s defense plans to file a motion for emergency review with the Court of Appeals prior to further proceedings in the case.

“Under these circumstances, no reasonably prudent and disinterested observer would conclude that Officer Nelson obtained a fair, impartial and neutral trial,” the motion stated.”