A judge ordered the release of 78 photographs of tattoos that cover the body of an Auburn police officer charged with murder, but said prosecutors must redact roughly half of the photos after finding them “inflammatory” and stating that their release could jeopardize the officer’s right to a fair trial.
King County Superior Court Judge Nicole Gaines Phelps, following an hourlong hearing Wednesday morning, said the release of 38 photographs of Officer Jeff Nelson’s extensive body art does not endanger his defense or violate his right to privacy.
The prosecuting attorney’s office released the 38 unredacted photographs Wednesday afternoon. They depict Nelson shirtless, revealing a fantastical tapestry of ink that includes several stylized skulls, howling wolves, a grim reaper, a snake curling around one arm, flames and spiderwebs. His back is covered by a set of wings and he has an inked spine on the skin above his own backbone.
As reported earlier, one wrist contains the block letters “Judged by XII” and the other “Carried by VIII,” presumably a reference to a longtime police and military catchphrase: “Better to be judged by 12 than carried by eight.”
Prosecutors, in court briefings, have argued: “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).”
However, the other 40 photographs that were not released Wednesday — taken by prosecutors as they build their case against Nelson for the 2019 on-duty shooting death of Jesse Sarey — must be redacted before release and cannot be seen in their entirety by the public.
The redactions will include “visible wording” inked on his stomach, chest, neck and legs, according to an exhibit filed by the judge after the hearing.
None of the photographs released Wednesday show a full-frontal view of Nelson’s torso.
The Seattle Times had filed a public disclosure request seeking all photos, and its attorneys intervened in the case in hopes of convincing the judge that their release was in the public interest, given that Nelson is the first police officer in King County in decades to be charged with homicide for the use of deadly force while on duty.
“The court is redacting the information … because the court finds that the photographs if put into the public domain at this point in the proceedings, the information is more likely than not of a nature that would elicit inflammatory responses, emotional responses,” the judge said.
That would make it difficult for the court, she added, to “be able to effectively and efficiently select jurors that don’t have those biases or have been affected by pretrial publicity.”
Moreover, the judge said it was likely that portions of an upcoming pretrial hearing where attorneys will argue the admissibility of the photographs in Nelson’s trial could be closed to the public — a rare move in criminal proceedings.
Seattle Times Executive Editor Michele Matassa Flores said the newspaper is considering an appeal of the judge’s ruling.
Times attorney Eric Stahl from the firm Davis Wright Tremaine said the court’s ruling “made clear these pictures are of legitimate public concern.”
“The public needs to know what is in them,” he said following the hearing. “We don’t believe Officer Nelson established any likely threat to his right to a fair trial.”
The judge allowed King County prosecutors to photograph Nelson’s tattoos after they argued that the body art was relevant and potentially key evidence in his upcoming murder trial. Nelson’s attorneys have argued that the tattoos have “no bearing whatsoever” on Nelson’s decision to shoot and kill 26-year-old Sarey during a scuffle outside an Auburn market on May 31, 2019.
Nelson, a 43-year-old Iraq War combat veteran, has pleaded not guilty to charges of second-degree murder and first-degree assault for shooting Sarey after responding to reports of disorderly conduct involving a man acting strangely, throwing items at cars and kicking buildings.
Nelson has extensive tattoos on his torso, back, legs and arms that prosecutors have argued might offer evidence to “prove his state of mind and the reasonableness of his actions as a police officer” when he shot Sarey, according to court filings.
One segment of tattooing not released Wednesday, but partially revealed in booking photographs, shows the words “one day as a” visible at his neckline.
Prosecutors believe those words are part of a quotation most often attributed to 20th century Italian dictator Benito Mussolini: “It is better to live one day as a lion than 100 years as a sheep.”
Phelps granted prosecutors’ motion to photograph Nelson’s tattoos after they argued that the actual extent of Nelson’s tattoos was unknown and that the court — and ultimately a jury — would benefit from knowing the extent of his body art.
“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.
Phelps then ordered almost all of the photographs sealed, including several taken when Nelson was booked into jail.
Altercation and shooting
Nelson fatally shot Sarey after the two got into a physical altercation and, Nelson claims, Sarey tried to grab his folding knife and gun.
According to witnesses and video of the shooting, Sarey had his back to an ice machine when Nelson shot him in the abdomen and he slumped to the ground. Nelson’s gun malfunctioned, so he cleared the jam and fired a second shot into Sarey’s forehead, 3.4 seconds after firing the first round.
Nelson later said in a written statement that he believed Sarey had a knife and posed a threat before firing the first shot — and that Sarey was on his knees in a “squatting fashion … ready to spring forward” before he fired again.
Nelson is the first officer prosecuted under the state’s new law enforcement deadly force statute, revised by the passage of I-940 in 2018. He’s also the first police officer charged in a line-of-duty homicide in King County in more than 30 years.
An autopsy showed Sarey was under the influence of methamphetamine.
Nelson has been involved in three fatal shootings and dozens of other uses of significant force during arrests, according to court records.
Auburn has already paid $4 million to settle a claim filed by Sarey’s family and $1.25 million to settle a lawsuit filed by the brother of Isaiah Obet, who Nelson shot and killed in a downtown Auburn intersection in 2017.
In 2011, Nelson shot and killed Brian Scaman, who “reportedly taunted him with a knife during a traffic stop,” according to court documents. When Scaman refused to drop the knife, Nelson shot him.
Joseph Loren Allen — a convicted drug dealer Nelson ran down with his patrol car during an arrest — also sued the city in federal court last year.
Both of Allen’s ankles were broken during the 2018 incident, which also dislocated his shoulder. The lawsuit remains pending.
