High Court to Review Part of Nesler Case

The state Supreme Court will review possible juror misconduct in the case of Ellie Nesler, the Sonora mother convicted of gunning down her son’s alleged molester in open court three years ago.

The decision by the state’s high court Wednesday is limited to only one phase of Nesler’s 1994 trial in the sensational shooting death of Daniel Mark Driver.

If the court finds that juror misconduct denied Nesler a fair trial during the sanity phase of the proceedings, she will be entitled only to a new trial on her mental competence at the time of the shooting. She will not be retried on the manslaughter conviction.

Nesler, who is battling advanced breast cancer, is serving a 10-year sentence in Stockton.

In April 1993, she shot Driver five times in the head and neck during a recess at his preliminary hearing on charges that he molested her young son at a summer church retreat.

Her action, which she said was prompted by delays in the case and her fear that Driver would be set free, was hailed by some and was the subject of intense media interest.

When it was revealed that Nesler was high on crank, or methamphetamine, at the time of the shooting, the TV-movie deals went away.

A state appeals court upheld her conviction in August, finding that reported statements by a juror during the trial’s sanity phase were improper but did not affect the verdict. In agreeing to review the case, the state Supreme Court said it would consider only juror misconduct and not other claims of error in the trial.

A majority of the justices--Chief Justice Ronald George and Justices Stanley Mosk, Joyce Kennard and Kathryn Mickle Werdegar--voted for a new hearing.

No matter the result of the hearing, Nesler, 44, is scheduled to be released from prison in January 1999. “She will have served most of her sentence by the time this case is decided,” said defense lawyer Paul Couenhoven.

Couenhoven said he will ask for an expedited hearing unless he can get Nesler released quickly on bail. He said her breast cancer, diagnosed during her trial and later declared to be in remission, has returned.

Couenhoven said he did not know how serious Nesler’s condition was or what treatment she was receiving. Family members met with Gov. Pete Wilson’s staff last month to plead for Nesler’s release.

In appealing the jury verdict, Nesler’s lawyers said one female juror apparently told other jurors during the sanity portion that she had information that shed a bad light on Nesler. She said she overheard Nesler’s baby-sitter say Nesler was a bad mother who used drugs. “If you only knew what I know,” the juror said, “you would feel differently.”

Superior Court Judge William Polley refused to overturn the verdict and his decision was upheld by the 5th District Court of Appeal.

Although the juror brought up improper information about Nesler during deliberations, her misconduct “was not inherently and substantially likely to have influenced any juror,” said Justice Nickolas Dibiaso in the 3-0 ruling.

Couenhoven said Wednesday that the appeals court had ignored the effect of the information on the juror herself.

“By saying, ‘If you only knew what I know’ . . . she’s confessing to bias,” the defense lawyer said. “She’s saying, ‘I am basing my decision on things that I learned apart from the evidence at trial.’ ”

Times legal affairs writer Maura Dolan in San Francisco contributed to this story.