Nesler Entitled to New Trial, High Court Rules

Ellie Nesler, who became a folk hero to some after gunning down a man charged with sodomizing her 7-year-old son, is entitled to a new trial to determine whether she was sane during the 1993 courtroom shooting, the California Supreme Court decided Thursday.

The Supreme Court ruled 4 to 3 that a biased juror tainted deliberations during the trial’s sanity phase. Atty. Gen. Dan Lungren was reviewing the ruling Thursday and will decide within the next several weeks whether to retry Nesler, a spokeswoman said.

In the meantime, a defense attorney said he will ask the trial court to free Nesler on bail, possibly as early as next week. “I think I will be able to get her out,” said attorney Paul Couenhoven.

Nesler, 45, is eligible for parole in January 1999.

A Tuolumne County jury convicted her of voluntary manslaughter for firing five shots into the back of Daniel Mark Driver’s head during a break in a preliminary hearing on charges that he raped her son and molested three other boys at a Christian camp.

During the second phase of Nesler’s 1993 trial, the jury rejected defense testimony that she had been suffering from post-traumatic stress disorder on the day of the shooting and found that she was sane at the time.

Nesler was sentenced to 10 years in prison. If the jury had found her insane, she could have been ordered to a mental hospital for as little as six months.

The court’s ruling affects only the sanity verdict, not the manslaughter conviction. If she were found insane in a new trial, she would be released from prison and could be sent to a mental hospital.

Nesler, who had taken methamphetamines, or “crank,” before the killing, shot Driver, 35, at close range as she and her son waited to testify against him. She had tried and failed to have her son’s testimony videotaped so he would not have to face Driver.

Fearful about the confrontation, the boy had been vomiting all morning. When Driver arrived at the courthouse, he looked at the boy and “grinned with a mean, disgusted and haughty look,” prompting the mother to lunge at him, the Supreme Court said. A family member held her back.

After the mother of another victim told Nesler that Driver probably “was going to walk,” Nesler grabbed a pistol from her sister’s purse and shot Driver as he sat shackled at a courtroom table.

Nesler’s trial sparked worldwide attention and inspired a folk song. Two banks in the Mother Lode region set up Nesler defense funds. T-shirts proclaiming “Nice Shooting, Ellie” sold briskly.

Some of her allure diminished during the trial as the gold miner’s daughter appeared to savor the publicity and word of her drug use spread. After the shooting, Nesler told authorities: “Maybe I’m not God, but I’ll tell you what, I’m the closest thing to it. I just felt he should be dead so I played judge and jury.”

The single mother of two was found to have advanced breast cancer at the time of her conviction. Recent tests have indicated that her condition may be deteriorating, her attorney said.

The Supreme Court overturned her sanity verdict on the grounds that juror Katherine Boje told other panelists that a baby-sitter for Nesler had told her Nesler was a neglectful mother who left her children for long periods of time and regularly used drugs. After the verdict, Boje was overhead saying: “The bitch got what she deserved.”

Chief Justice Ronald George, writing for the majority, said Boje demonstrated bias and violated her oath as a juror. The juror had spent 30 minutes in a bar during a break in deliberations, where she overheard a tirade by a woman who said she was Nesler’s baby-sitter.

Boje subsequently revealed the damaging information she heard to other jurors, misrepresenting her source as a baby-sitter for Nesler, rather than a stranger at a tavern who claimed to have been a baby-sitter, the court said.

“Although inadvertent exposure to out-of-court information is not blameworthy,” George wrote, “. . . it nevertheless gives rise to a presumption of prejudice because it poses the risk that one or more jurors may be influenced by material that the defendant has had no opportunity to confront, cross-examine or rebut.”

Justices Joyce L. Kennard, Kathryn Mickle Werdegar and Stanley Mosk agreed with George that a new trial on Nesler’s sanity was warranted. Justices Marvin Baxter, Ming W. Chin and Janice Rogers Brown objected, contending that the errant juror’s behavior had not clouded the sanity verdict.

“In the highly charged local atmosphere this case produced,” Baxter wrote for the dissenters, “it would have been almost impossible to protect defendant’s unsequestered jury from any and all exposure to outside rumor, gossip and discussion.”

He called the juror’s “unfortunate” conduct a “human mistake of the kind we must be prepared to accept as the price of our precious jury system.”

After allegedly molesting Nesler’s son in 1988, Driver told him that if he repeated to anyone what happened, Driver would kill him and his sister, the court said. The boy later confided to his family, but Driver fled when charges were filed and was not arrested for several years, the Supreme Court said.

On the morning of the preliminary hearing, Nesler appeared nervous, upset and extremely anxious about her son, the court said. She told an investigator he might not be able to testify.

After the boy entered the waiting room for witnesses, the mother of one of the other alleged victims told Nesler that she felt her own testimony had not gone well and that Driver had smirked when they arrived.

The woman said she wanted to kill Driver and urged Nesler to try to do better when her turn to testify came.

Nesler then went into a courthouse hallway, grabbed the pistol and emptied it into Driver, missing only once. She told authorities: “You don’t understand. He has raped hundreds of boys.”

A blood test revealed Nesler had a concentration of methamphetamines. At the time, the family was living outside Sonora in a trailer and she supported her children by chopping firewood and collecting welfare.

The Supreme Court ruling becomes final in 30 days, and Lungren has 60 days after that to file the paperwork to retry Nesler.

Couenhoven, Nesler’s state-appointed appeals attorney, said he will ask for a bail hearing next week but conceded that a trial judge could balk at setting bail before the Supreme Court ruling is final. “But after that,” he said, “it is just a matter of time.”

“I am ecstatic,” Couenhoven said. “What can I say? I don’t think she belongs in prison. I just want to get her out.”

Donald Segerstrom, one of Nesler’s trial attorneys, said she was in “good spirits” when he saw her several weeks ago but was worried that her cancer may be spreading.

Nesler’s son, now a teenager, and his younger sister have been living with Nesler’s sister while their mother is in prison.

“Every person who is a parent can sympathize with her situation and empathize and understand how those emotions could arise in a person,” Segerstrom said. “Any mother would understand the lengths to which a mother will go to protect her children.”

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The Saga of Ellie Nesler

* Summer 1988: Nesler’s 7-year-old son is allegedly molested at a Christian camp in the High Sierra by a camp kitchen worker.

* Late 1992: Former camp dishwasher Daniel Mark Driver, a fugitive, is arrested for shoplifting. He then faced previously filed charges of molesting Nesler’s son and three other children.

* April 1993: Nesler shoots and kills Driver, 35, at his preliminary hearing on molestation charges.

* May 1993: Prosecutors say Nesler used methamphetamine the day she shot Driver.

* August 1993: Nesler is convicted of voluntary manslaughter.

* September 1993: In the trial’s sanity phase, jurors find that Nesler was sane when the shooting occurred. She had claimed temporary insanity.

* October 1993: Nesler’s sentencing is postponed because she has received a diagnosis of breast cancer and is set to undergo exploratory surgery in November.

* January 1994: Nesler is sentenced to 10 years in prison. The judge allows her 15 minutes with her two children before bailiffs lead her from the court in shackles.

* September 1994: Nesler unsuccessfully petitions for bail as she begins appealing her conviction.

* June 1996: Defense attorneys petition a Fresno appeals court to overturn Nesler’s sanity conviction, alleging misconduct by one juror who persistently claimed special knowledge about Nesler.

* August 1996: Appeals court upholds the conviction, finding the juror’s statements improper but that they did not affect the verdict.

* November 1996: State Supreme Court agrees to review possible juror misconduct in the sanity phase of Nesler’s trial. Defense attorney says Nesler’s cancer, which had been in remission, has returned.

* August 1997: Supreme Court upholds juror misconduct allegation and orders a new trial to determine if Nesler was sane when she shot Driver. State prosecutors are considering whether to move ahead with a trial for Nesler, who would be eligible for parole in January 1999.

Source: Times news files

Researched by TRACY THOMAS / Los Angeles Times