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Nesler Found Legally Sane at Time of Shooting

SPECIAL TO THE TIMES

Six weeks after finding Ellie Nesler guilty of voluntary manslaughter, a Tuolumne County jury declared Wednesday that she was legally sane when she entered a courtroom last spring and gunned down a shackled defendant charged with molesting her son.

The decision means that the 41-year-old Nesler--whose arrest touched off a nationwide reaction, mostly in her defense--could face up to 16 years in prison. She remains free while awaiting sentencing Oct. 29.

Nesler, who claimed she suffered from temporary insanity set off when the suspect smirked at her, greeted the verdict with a nervous smile. Later, surrounded by a crush of reporters, she expressed her disappointment.

“I was very shocked,” said Nesler. “I’m going to have to be away from my children for quite a while and that’s the biggest hurt.”

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Nesler said she felt jurors had ignored evidence of her temporary insanity and instead voted based on the charged atmosphere surrounding the case, especially here in the Sierra Nevada foothills where residents have debated whether the shooting was a crime or a justifiable act of informal justice.

“They didn’t want it to look like a vigilante town,” Nesler said. " . . . I still think we need to change the laws to protect the children. The children need to grow up innocent.”

Prosector W. Scott Thorpe said the verdict sent an important message. “We’re talking about taking the justice system into your own hands,” he said. “We’re talking about the sanctity of the courtroom. We’re talking about how you deal with rage and anger.”

The decision came after five days of jury deliberation. Nesler had been convicted of voluntary manslaughter--rather than the first-degree murder charge sought by prosecutors--by the same jurors last month.

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On April 2, Nesler pumped five bullets into 35-year-old Daniel Driver, a vagabond who had spent three months in a Santa Clara County jail in 1983 for child molestation.

Driver was appearing at a preliminary hearing to decide if he would stand trial on charges he molested Nesler’s son, then 6, and three other boys at a camp here in 1988.

After the shooting, Nesler told authorities that she feared Driver would be set free without trial. “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.”

The sanity phase of the trial, which began three weeks ago, turned on the question of Nesler’s state of mind the moment of the shooting.

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Juror Lillian Bertnick, a retired grocery clerk, said Nesler suffered a mental disorder but was not insane at the time of the shooting. “I think she’s a troubled person,” Bertnick said. “I think she needs some help. She acts before she thinks.”

Nesler’s attorney, J. Tony Serra, argued that a blinding rage impelled Nesler to grab the palm-sized .22-caliber semiautomatic from her sister’s purse moments before the shooting.

She had been “pushed over the edge,” he said, by a series of fast-moving events that morning. First, Nesler’s 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. Nesler lunged at Driver and was held back by family members.

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

Defense psychiatrist Fred Rosenthal testified that Nesler was suffering from a “brief reactive psychosis.” In that temporary delusional state, the doctor said, Nesler somehow believed that all the lawmen at the court that day were part of a conspiracy to kill Driver and that she had been chosen to carry it out.

But Nesler admitted that she had taken the drug methamphetamine that morning. Two court-appointed mental health experts said Nesler did not meet the legal or medical definition of temporary insanity.

“Yes she was hyper-emotional,” said Stockton psychologist John Chellsen. “She was impulsive. But she was not psychotic. She was not delusional.”

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Serra said he will appeal the decision. The sentence could range from probation to 16 years in prison.

Fuller, a special correspondent, reported from Sonora. The story was written by Times staff writer Arax in Fresno.


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