Ellie Nesler Gets 10 Years in Court Killing

A Tuolumne County judge sentenced Ellie Nesler to 10 years in prison Friday for gunning down her son’s accused molester in court last spring, calling the killing an execution showing a “high-degree of viciousness.”

Nesler, 41, who has breast cancer, showed no emotion as Superior Court Judge William G. Polley pronounced what is considered a “midterm sentence.” She faced a maximum 16 years. She will be eligible for parole in five years.

Polley granted Nesler 15 minutes with her two children. Then bailiffs shackled her and led her out the back door of the courthouse to a van. She was asked by reporters if the sentence was fair. “Yeah,” she smiled slightly. “It was fair.”

A jury convicted Nesler in August of voluntary manslaughter in the death of 35-year-old Daniel Driver, a killing that drew worldwide attention and turned the gold-miner’s daughter into a symbol for some people besieged by crime. The jury determined that the single mother was legally sane when she walked into the Old West-style courtroom in April and shot Driver as he sat shackled at the defense table.

Nesler and her attorney, J. Tony Serra, pleaded for leniency during a four-hour hearing Friday, citing her advancing cancer and the welfare of her two children, ages 12 and 8.

“I wouldn’t undo what I did,” she told the judge. “But I don’t condone what I did. If you send me away for a short period, I could make it. But if I’m sentenced to a long period I would rather die. . . . Please, your honor, give me a chance to give something back, to give to the children.”

Serra asked the judge to set his client free on probation. “There’s nothing good about this case. It’s all a tragedy,” he said. “The only way to make sense out of this is allow her to go out on probation. . . . If she dies in prison, I think the legend of Ellie Nesler will only be greater.”

Polley rejected those arguments. “This crime, in fact, was an execution. The defendant knew full well the penalty when she shot Daniel Driver and she intended to pay that penalty.” He called Serra’s request for probation inappropriate.

The killing took place April 2 during a break in a preliminary hearing to determine if Driver would stand trial on charges that he molested Nesler’s son, then 6, and three other boys at a Christian camp in 1988. Driver had spent three months in Santa Clara County Jail in 1983 for child molestation.

After the shooting, Nesler told authorities that she feared he would be set free without a trial. “Maybe I’m not God but I’ll tell you what, I’m the closest thing to it,” she told authorities. “I just felt he should be dead so I played judge and jury.”

The sentence marked perhaps the final chapter in one of the most sensational and resounding criminal cases in the colorful history of this Mother Lode region. In the days after the killing, Nesler was praised as a heroine frustrated by the judicial system and acting out of concern for her son, whom Driver allegedly threatened to not testify in the molestation case.

A multitude of journalists, talk show and TV movie representatives swooped down on this rustic area, which served as backdrop for “High Noon” and other Hollywood Westerns. Two banks set up Nesler defense funds and shops and honky-tonks along Main Street collected cash in big glass jars. T-shirts and bumper stickers proclaimed “Nice Shooting, Ellie.” Calls of support poured in from across the country and Canada, Italy, Spain and Denmark.

Hollywood got cold feet when it was revealed that Nesler was on methamphetamine at the time of the shooting. Even some of her local support began to wane as Nesler seemed to bask too much in the publicity of the case.

During her trial, Serra argued that Nesler would have never shot Driver had she not been 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 once allegedly threatened to kill the boy and his mother if he told anyone about the molestation.

Then as Driver was led into the courtroom by sheriff’s deputies, he reportedly smirked at Nesler and the boy. Nesler lunged at Driver and had to be held back by family members.

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

At that point, Nesler, according to Serra, filched a palm-size small-caliber semiautomatic from her sister’s purse, which was hanging unattended in the court hall, went back into the courtroom and emptied the pistol, missing only once.

Prosecutors argued that Nesler was making good on a promise of vengeance she had uttered many times over the three years it took for the case to get to court. “She meant to, expected to, intended to kill Daniel Driver,” prosecutor Jo Graves argued. “We’re talking about the murder of a man in custody in handcuffs.”

The probation report said Nesler showed no remorse for the killing and would probably do it again. A Stanford doctor has said that Nesler has a 50% chance of surviving five years with chemotherapy. But the cancer is so far advanced that a mastectomy would not be effective.