Prosecutors can photograph tattoos of Auburn officer charged with murder, judge rules

The tattoos of an Auburn police officer — including one believed to quote the late fascist dictator Benito Mussolini — are relevant and potentially key evidence in the upcoming trial of the first officer charged with murder under Washington’s new police-accountability legal standards, a King County judge has found.

In turn, Superior Court Judge Nicole Gaines Phelps has granted a request by King County prosecutors to photograph Officer Jeffrey Nelson’s “torso, front and back, left and right arms, including his wrists, hands, neck and legs,” according to a four-page order filed on Tuesday.

“The Court finds that the examination and photographing of defendant Nelson’s tattoos is relevant” under legal standards “for proving the charges, for impeachment, and for disproving the defendant’s defense of justifiable homicide” as an officer using deadly force in good faith, the judge’s ruling states.

But the public may never get to see photos of the tattoos that prosecutors contend demonstrate Nelson’s “aggressive, shoot-first posture toward policing.” Already, the judge has sealed three of Nelson’s booking photos in the public court file, and her ruling says additional pictures taken of his tattoos “shall not be further disseminated without Court order.”

Nelson, 43, has pleaded not guilty to charges filed last year of second-degree murder and first-degree assault for the fatal shooting of 26-year-old Jesse Sarey, who the officer encountered while responding to a disorderly conduct call in 2019. He became the first officer charged with murder in Washington following voters’ approval in 2018 of Initiative 940, which implemented new legal standards for prosecutions in police use-of-force cases.

Last month, King County Senior Deputy Prosecutors Kathleen Van Olst, Mark Larson and Ian Ith filed a motion seeking to extensively photograph Nelson’s tattoos, arguing his body art demonstrates “Nelson’s approach to and attitudes toward policing.”

The tattoos offer potential evidence to “prove his state of mind and the reasonableness of his actions as a police officer at the time of Sarey’s fatal shooting,” the motion added.

Prosecutors based their argument on observations of police photos and booking photos already in hand that showed some, but not all, of what they believe is an elaborate, thematic tapestry of tattoos across Nelson’s body.

Some of the available photos captured “tattooing on Nelson’s wrists, extending up his forearms” that contain part of a longtime police and military catchphrase, “Better to be judged by 12 than carried by eight,” the motion states.

“This phrase indicates a willingness to use force (including deadly force) and face legal consequences (judged by 12) rather than be carried by pallbearers (carried by 8),” prosecutors argued.

In another part of Nelson’s tattooing, partially visible at his neckline in the available photographs, the words “one day as a” can be seen, the motion states.

Prosecutors believe, after conducting online research and consulting with FBI tattoo experts, that those words are part of a quotation most often attributed to 20th century Italian dictator Benito “Il Duce” Mussolini: “It is better to live one day as a lion than 100 years as a sheep.”

But because the available photos “do not show the entirety of Nelson’s tattooing,” the prosecution’s theories of what actually is inked on the officer’s body may be “misrepresenting or underrepresenting the full context and meaning of the themes that are visible,” the motion states.

“It benefits both parties and this Court to have complete pictures of Nelson’s complete tattooing so this Court later can make thorough, informed and thoughtful rulings about admissibility, when and if the State were to elect to offer the tattooing as evidence,” prosecutors argued.

In response, Nelson’s defense attorneys Emma C. Scanlan and Timothy Leary countered his “tattoos have no bearing whatsoever” on the key question of “whether a similarly situated reasonable officer would have believed that the use of deadly force was necessary to prevent death or serious physical harm to the officer or another individual.”

Contending Nelson justifiably shot Sarey in self-defense, his lawyers unsuccessfully argued the officer’s “state of mind is not at issue in this case because intent is not disputed (it is not disputed that Ofc. Nelson intended to shoot Mr. Sarey, knowing that death was a probable result).”

Nelson killed Sarey outside the Sunshine Grocery on Auburn Way North, after the officer responded to reports of a man throwing garbage at cars, banging on windows and kicking walls outside of businesses in the area.

While trying to take him into custody for a misdemeanor disorderly conduct offense, Nelson punched and grappled with Sarey, then shot him once in the abdomen, charging papers say. Then, after Sarey fell to the ground, Nelson’s gun jammed, so he cleared the slide and shot Sarey a second time in the forehead, 3.4 seconds after firing the first shot, the charges say.

Sarey was the third person killed by the Auburn officer during his 12-year police career, records show. By the time the officer encountered Sarey on May 31, 2019, Nelson had used force dozens of times by means of his feet, fists and neck restraints and through his police dog, Taser, patrol car and firearm during arrests.

Tuesday’s court order, which follows the judge’s oral ruling last week, sided with prosecutors’ arguments, finding additional photographs of Nelson’s tattoos are “reasonably necessary and not unreasonably intrusive.”

Under the ruling, prosecutors will get to choose a “law enforcement representative” to photograph Nelson’s tattoos “at a reasonable date, time and place” to be determined.

After the photos are taken, prosecutors must notify Nelson’s lawyers if anyone requests copies of them under the state’s Public Records Act so that the defense attorneys “may take such action as is needed regarding the release or examination of the photos,” the judge ruled.