At the request of his defense, Auburn Police Department Officer Jeffrey Nelson’s trial for the assault and killing of Jesse Sarey has been delayed until Nov. 28, 2022, according to a May 3 decision by Judge Nicole Gaines Phelps.

This is the third time Nelson’s trial has been postponed. Prior to last week, the trial was scheduled to take place this June.

The decision to postpone the trial again came after Nelson’s defense team said they needed more time to gather evidence from public disclosures and expert testimony. The prosecuting attorneys wanted the case to begin in August 2022.

“We can try to be ready by the end of August, but I still don’t think that we’re going to be ready at that point,” said Emma Scanlan, Nelson’s defense attorney.

Scanlan explained that she and Nelson’s other attorney, Kristen Murray, are still receiving responses to public disclosure requests regarding Nelson’s police training. Once they receive those records, they need their experts to examine the records, which will also take time, Scanlan said.

Nelson’s defense would be ready for trial by October, but Murray is involved in another trial that begins on Sept. 12 and is expected to last eight weeks, Scanlan said.

After hearing the defense’s arguments, Judge Phelps agreed to begin jury selection on Nov. 28, 2022, and to start opening statements beginning the week of Jan. 2, 2023.

The prosecuting attorneys expressed their frustration with further delays due to the defense.

“I’m probably channeling some of the frustration of the people who are watching,” prosecuting attorney Mark Larson said. “You know, last October we sat down and said we can do this in June. Some very important deadlines have been blown through.”

Larson said going forward, it’s important both parties adhere to the deadlines. Judge Phelps said that from the court’s perspective, the issues raised by the defense were legitimate reasons for postponing the trial. However, Phelps said she wouldn’t be lenient regarding deadlines in the future.

After both counsels were done, Elaine Simons (Jesse Sarey’s foster mom) asked the judge where Nelson was located because previously the judge indicated that he was out of custody.

“Where is the defendant Jeff Nelson currently?” Simons asked. “My understanding is that he’s on house arrest and I want to make sure for our family’s well-being that that is the case.”

Judge Phelps confirmed that Nelson is on electronic home monitoring house arrest and that when she earlier said Nelson wasn’t in custody, she meant he wasn’t incarcerated at one of the county’s jails.

Phelps also said that people who are on electronic home monitoring are not given priority for trial dates over people who are incarcerated in jail if a scheduling conflict arises like in the case of Murray’s other client.

Simons was frustrated by this because she felt Nelson was only given the luxury of home monitoring in the first place because he’s a police officer, Simons said. When charges were initially filed against Nelson the prosecuting attorney’s office did not request bail.

If a civilian was charged with the same crimes Nelson was, they would probably be in jail and their case would have been prioritized for trial, Simons said.

In May 2019, Nelson shot and killed Jesse Sarey after attempting to arrest Sarey for jaywalking. Over a year later in 2020, King County Prosecutor Dan Satterberg filed assault and second-degree murder charges against Nelson for the killing of Sarey.

Nelson is the first officer in Washington to be charged with murder since the passage of Initiative 940, which changed the standard for holding police criminally liable for excessive use of force.

Prior to Initiative 940, prosecutors had to prove a police officer acted with evil intent when they killed someone in the line of duty in order to charge that officer with murder — essentially an impossible standard to meet, Satterberg said.

Under Initiative 940, prosecutors now have to prove that a different, reasonable officer would not have used deadly force in the same situation.