The Attorney for Jeffrey Nelson, the Auburn Police officer charged in the May 2019 shooting death of Jesse Sarey, has filed a motion for the removal of the judge currently assigned to the case. (click to read) Arguments for dismissal due to “disqualification on (the) grounds of actual prejudice” were submitted alongside the motion.
Jesse Sarey | courtesy photo, Elaine Simons
Nelson has been charged with second-degree murder and first-degree assault. After speaking with Sarey near Walgreens, Nelson re-contacted him outside of Sunshine Grocery on Auburn Way N. According to Nelson (click to read), he had probable cause to arrest Sarey for Disorderly Conduct. A physical altercation ensued when Sarey allegedly resisted Nelson’s attempt to arrest him. Sarey was shot twice during the altercation.
Legal Basis for Removal
Allen Harvey, Nelson’s attorney, asserts that according to RCW 4.12.50 and 4.12.40, and Superior Court Criminal Rules (CrR) 8.3(b) and 8.9, should be disqualified and removed from the case.
The two RCWs Harvey references outline the process to disqualify a judge from presiding over a matter. The key part of 4.12.50 in this instance is: (read the full RCW)
“(a) Notice of disqualification must be filed and called to the attention of the judge before the judge has made any discretionary ruling in the case.”
Citing Washington Court CrR 8.3(b) (read the full rule) and 8.9 (read the full rule), Harvey contends there is justification for dismissing the case. The September 3 motion cites CrR 8.3(b). An amended motion filed September 11, added CrR 8.9 to the motion.
Declaration in Support of Motion
Harvey begins his declaration with a summary of the facts before the arraignment:
- On August 20, Nelson was an Auburn police officer. Before appearing in King County Superior Court August 24, Nelson had been placed on administrative leave.
- On August 20, King County Special Deputy Prosecuting Attorney Mark Larson filed a Motion for Order for Summons, incorporating by reference the filed Information and Certification of Probable Cause. (click to read)
- In his Order for Summons, Larson cited CrR 2.2. Harvey states, “Mr. Larson indicated to the court that “there is no evidence to support a request for bail under this rule” adding, “provided that Officer Nelson is not working in law enforcement as an officer.”
- King County Superior Court Judge Catherine Shaffer approved the orders as Larson requested, ordering only that Nelson’s firearms be surrendered.
At Nelson’s August 24 arraignment, Larson reiterated the position to not ask for bail. He cited the exceptions under CrR 3.2.1 that lead to the decision not to request bail:
- Nelson was not believed to be a flight risk. Larson observed that Nelson remained in the community during the public 15-month investigation.
- During the 15-month investigation, there is no indication Nelson or Harvey had contact with any witnesses. Larson did request a no-contact order but said he didn’t “think that those issues require the setting of bail.”
- Larson conceded that Nelson poses a risk for committing a future violent offense. However, in his opinion, the case’s information indicates the alleged unlawful and excessive deadly force stems from his work in law enforcement. “Apart from his work in law enforcement,” said Larson, “we are unaware of any other circumstance that leads us to believe that there is a risk of a violent offense occurring.”
In concluding his argument, Larson clarified that “some have suggested that the State’s position to not request bail, in this case, reflects a policy change regarding bail. It does not. Rather, it is an application of the unique facts of this case to the rule which presumes release and the imposition of conditions over bail. In the end, of course, it is left to the court to best interpret the rule and its application to this case.”
Arguments for Removal
Harvey’s declaration outlines arguments supporting the motion for “change of judge for actual prejudice and/or disqualification” as follows:
- No new facts or information was presented to Galvan at the August 24 arraignment.
- According to Harvey, Larson provided information “that was essentially identical to his filings before Judge Shaffer.”
- Recounting Galvan’s words, Harvey accused that the court stated, “Mr. Nelson’s matter was an “intentional murder.” This statement is not supported by the filing of a Murder in the Second Degree as currently charged.”
- Harvey indicated Larson was admonished in open court, with media present, when Galvan accused the state of “turning itself into pretzels to explain to me why the rule applies” to Nelson.
- Harvey argued that the court focused on Nelson’s profession, again quoting Galvan. “The idea that merely wearing a uniform means that somehow he cannot be violent in any other circumstance is not an argument that sits well with this court.”free Auburn Examiner newsletter.
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