Jury in Nesler Trial Begins Deliberations : Courts: Crucial point is defendant’s state of mind when she shot and killed the man accused of molesting her son. Defense says that the act was not premeditated.

After a week of testimony with no surprises, the trial of a mother accused of killing her son’s alleged molester in April basically comes down to this: When or, more precisely, how did Ellie Nesler get her gun?

For the jury, which began deliberations late Thursday, Nesler’s state of mind the moment she picked up the gun is critical in deciding whether she formed the requisite malice or intent to kill. If the jury decides that a blinding rage impelled her to take up her weapon--that the act was not premeditated--then manslaughter is the most serious charge on which she can be convicted.

Prosecutors contend that Nesler, a 40-year-old single mother of two, left her trailer home the morning of April 2 with the palm-sized .22-caliber semiautomatic in her car. She was intent on killing Daniel Driver, 35, a convicted child molester who was appearing at a preliminary hearing in nearby Jamestown on charges that he had sodomized Nesler’s son, then 6 years old, and three other boys at a Christian camp here in 1988.

As the boy and Nesler waited to testify against Driver, prosecutors argue, the divorced mother steeled herself to make good on a promise of vengeance she had uttered numerous times over three years.

During a break in Driver’s hearing--her first opportunity--prosecutors said a “calm and focused” Nesler walked up to Driver, who sat shackled next to his attorney, and pumped five bullets into his head and neck.

“She meant to, expected to, intended to kill Daniel Driver,” said prosecutor Jo Graves in an hourlong closing argument Thursday. “We’re talking about the murder of a man in custody in handcuffs. Empathy should never, never encompass coldblooded murder.”

Defense attorney J. Tony Serra, in an impassioned two-hour closing argument that moved between shouts and near-whispers, offered an intricate story of how the gun wound up in Nesler’s hands.

Serra said Nesler--a victim of child molestation--was pushed over the edge by a series of fast-moving events that morning.

First her son could not stop vomiting in anticipation of testifying against Driver, who had once threatened to kill the boy and his mother if he told anyone about the molestation.

Then, as Driver walked into the courthouse, he flashed a smirk at Nesler and the boy.

Finally, another mother testifying against Driver told Nesler in the hall outside the courtroom that her testimony was weak and that Driver “was going to walk.”

“Coldblooded murder--baloney,” Serra said, delivering his statement without notes. “She was crazy, she went stark raving crazy at that moment. . . . How did she have cold blood? Her blood was too hot.”

How the jury answers the question of intent will determine if Nesler receives a life sentence for first-degree murder, prison time of up to 11 years for manslaughter, or is acquitted.

Tuolumne County Superior Court Judge William G. Polley is presiding over a two-part trial. Unless Nesler is acquitted, a second phase beginning Sept. 7 will decide whether she was sane at the time of the shooting. A finding of temporary insanity would probably mean that Nesler would spend her sentence in a mental facility.

To support their theory of premeditation, prosecutors Graves and W. Scott Thorpe point to a rambling statement Nesler gave to state investigators hours after the shooting, in which she said she had envisioned shooting Driver several times over the past three years and that she had left her house that morning with the gun in her car.

She also admitted being wired on methamphetamine, or crank, at the time of the shooting. “Maybe I’m not God but I’ll tell you what, I’m the closest thing to it,” she told investigators. “I just felt he should be dead so I played judge and jury.”

Nesler and her sister, Jan Martinez, had told investigators that day that Nesler had retrieved the gun from her car. But Martinez has since testified that Nesler filched it from Martinez’s purse while at the courthouse. They said they lied because Martinez had been convicted of a marijuana charge and as an ex-felon was not allowed to carry a handgun. A single mother of five, Martinez feared spending time in prison.

Martinez said the reason she had the gun, which belonged to her deceased father, was because she had recently purchased a 1963 Bentley belonging to drug smugglers at a government auction. She had been warned that the drug smugglers were still interested in the Bentley and when the car later turned up with a mysterious brake problem, Martinez decided to carry the handgun for protection.

Prosecutor Graves said that even if that version were true, premeditation existed because in the minutes it took Nesler to retrieve the gun from the purse she had formed the intent to kill.