King County prosecutors have responded to the defense team of convicted Auburn police officer Jeffrey Nelson after Nelson’s defense filed motions for a new trial and judge.

After weeks of testimony and trial proceedings, a jury convicted Nelson of murder in the second degree and assault in the first degree on June 27 for the on-duty shooting death of 26-year-old Jesse Sarey in May 2019.

On July 16, Nelson’s defense team filed two motions — totalling to 989 pages — for a new trial and the recusal of Judge Nicole Gaines Phelps from the case, arguing prosecutorial and judicial misconduct prevented his right to a fair trial.

In the two motions, Nelson’s defense team argued that the prosecutorial team engaged in “egregious” and repeated misconduct; the court engaged in improper ex parte communications with an individual juror; the court hid the jury’s preliminary verdict forms and misinformed the defense team in the matter; and Judge Phelps engaged in conduct creating a perception of partiality against Nelson’s defense team, including an incident of rebuking defense counsel in front of jurors.

“Individually, each error is of constitutional magnitude and a basis for a new trial,” Nelson’s defense stated in the team’s motion for a new trial. “Collectively, the accumulation of errors is enormous and inexorably leads to the conclusion that a new trial is required.”

In response, King County prosecutors filed 627 pages on July 31 of exhibits and arguments against the claims of Nelson’s defense team that the actions of prosecutors and judge rendered the verdicts delivered by the jury as invalid.

“On none of these arguments does Nelson come close to meeting the standard for a new trial,” stated King County prosecutors in the state’s response to the defense’s motions. “Even setting aside the overwhelming evidence of Nelson’s guilt, a careful examination of the record shows that Nelson’s claims lack merit under Washington law.”

The response of prosecutors stated Nelson’s alleging of cumulative error on behalf of prosecutors lacked “any meritorious claim” and labeled claims of deception and improper ex parte communication as “baseless” in regards to an incident involving the court’s replacement of the verdict form for the murder count.

“The Court intentionally deceived the parties when it characterized the jury’s verdict forms as ‘improperly filled out’ and intimated that the jury was potentially deadlocked on both counts, forcing Officer Nelson to make decisions based on false information,” stated the defense team’s motion for a new trial.

Prosecutors argued the court’s interactions with the jury in the incident served as “non-coercive, neutral, and conveyed no affirmative information.”

In regards to the defense team’s claims of judicial partiality, prosecutors argued Nelson’s defense provided no objective evidence of “personal or pecuniary” interests of the court in the outcome of the case, nor potential sources of biases to constitute a valid showing of judicial bias.

Addressing the defense team’s raising of concerns regarding an incident of Judge Phelps rebuking defense counsel in front of jurors, prosecutors stated “the comments were fairly understood as directed to both sets of attorneys.”

“The twelve jurors heard the eyewitnesses. They saw the videos. They heard the arguments Nelson’s highly experienced lawyers made on his behalf,” King County prosecutors stated in the response. “They were properly instructed on the law. And they found Nelson guilty beyond a reasonable doubt. That judgment should be respected.”

The court held a hearing for multiple motions and further proceedings in Nelson’s case on Aug. 9.

Matters included the motion for the continuance of Nelson’s sentencing hearing, the motion for the recusal of Judge Phelps, the motion for a new trial, and the defense’s request for an evidentiary hearing regarding a matter with a juror.

Judge Phelps will rule on whether to grant the motion for the recusal of herself on Oct. 4, she said at the Aug. 9 hearing.

In the event Judge Phelps grants the motion for recusal, King County Judge Ketu Shah will rule regarding the appointment of a visiting judge, with the defense requesting a judge from outside of King County.

Nelson’s defense requested a testimonial “evidentiary” hearing at the Aug. 9 hearing with Detective Sergeant C. Sam Hooper, head of screening and security at the Maleng Regional Justice Center — the location of Nelson’s trial.

In the defense’s motion for a new trial, the defense argued the court’s handling of an “upset” juror wanting to speak to the court regarding an incident involving security served as an “improper closed-door proceeding.”

“The Court reported to the parties that the plan was to have Chief Judge [Johanna] Bender and Sergeant Hooper follow up with [the juror] at the end of the day and question him to ‘find out exactly what’s going on and let us know more,’” the defense’s motion for a new trial stated. “… Defense counsel expressed ‘concerns about the juror having this conversation off the record with the Chief Judge and the court staff rather than in an on-the-record setting.’”

Nelson’s defense stated neither Nelson nor his team served as present for the questioning of the juror, with the court “never [providing]” additional information regarding what the juror said to the Chief Judge and Sergeant Hooper in his questioning.

The defense requests the evidentiary hearing as a result of lacking a “factual basis on what occurred” between the juror, Judge Bender, and Sergeant Hooper, Nelson’s attorney Emma Scanlan said.

What’s next

In the event Judge Phelps grants the motion for recusal on Oct. 4, Nelson’s defense and prosecutors will present arguments that day regarding the entitlement of defense to an evidentiary hearing.

In the event, the court grants the motion for an evidentiary hearing, the court will hold the hearing on Oct 18. Additionally on Oct. 18, the court will hear argument regarding the defense’s motion for a new trial.

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

The court scheduled Nelson’s sentencing for Nov. 8.