'The Mother That Sits Alone': Elaine Simon's Pursuit of Justice for Jesse Sarey

On the afternoon of July 12, Elaine Simons sat down for an interview with the Emerald and she had one thing on her mind: the sentencing of the police officer convicted of murdering her foster son, Jesse Sarey, a 26-year-old Khmer American man.

Former Auburn police officer Jeffrey Nelson is the first officer to be convicted under a new Washington law, Initiative 940, which eased legal requirements to charge officers in police shootings. Nelson was found guilty of second-degree murder and first-degree assault for killing Sarey.

"My biggest concern is that we're going to get some people in [the courtroom] who have never been there and never had the same respect coming in and bringing their own agendas," Simons said. "Everybody's got eyes on us. We're not going to be who they think that impacted families are because that's what they want to believe."

Originally scheduled for November, Nelson's sentencing was delayed for months. On Jan. 23, Nelson was sentenced to 200 months in prison following a six-week-long trial. When the day of sentencing finally came, the courtroom was so packed that the courthouse had to set up an observation room in the courtroom upstairs from Judge Nicole Gaines Phelps' in order to accommodate everyone in attendance.

Six years ago on May 31, Sarey was shot and killed in the parking lot of Sunshine Grocery by Nelson, who was responding to 911 calls reporting erratic behavior. According to the case filing, after a violent struggle in which Nelson punched Sarey in the face and abdomen seven times, Nelson shot Sarey in the torso and then in the forehead, killing him.

"When I saw it on the news, I didn't at that time know it was Jesse," said Simons. "Part of me is like, 'I probably know who this is,' just because I've worked in [the] homeless community for years."

Jesse's biological mother died in June 2021, and though Simons was responsible for Jesse's care for only six months, she raised Jesse's brother Torell until he was an adult. It was Torell who told her that Jesse was killed.

"On the morning of June 1, I got a phone call from my son, Torell … and he's like, 'Did you see the news?' and I [said] 'Oh, no,' and I knew it was Jesse," Simons recalled.

"Jesse was a funny and sweet young man who loved breakdancing, wrestling, and Naruto. His laugh was a distinct trait of his. Every so often, I watch a video of Jesse dancing as he was a line cook at around 23 years old — you can hear him laughing while prepping food and dancing," said Simons in her victim impact statement at Nelson's sentencing. "Mr. Nelson, you robbed his family and the world of this incredible human being."

The prosecuting attorney's office for King County filed the case against Nelson on Aug. 20, 2020, about three months after the murder of George Floyd, who, for some families of victims impacted by police violence, pointed the public's attention toward their case. It was at a Black Lives Matter rally for George Floyd where Simons spoke publicly about Sarey for the first time.

"I get up there, I have a beautiful written speech and I don't know where to begin. We're in Auburn. I'm surrounded by all these police and the Auburn chief of police, and I've got to say this," Simons said. "I started my speech, and also I'm shaking and I stop. The whole audience, 'Mama, we gotcha. It's okay,' and that's when I [thought,] 'I'm okay, I'm okay.' I did my speech and then I called out his name and said, 'Remember this name! You're going to know this name!'"

From that day on, Simons began speaking about what happened to Sarey at rallies, protests, and events across the country. She connected with other mothers whose children were killed by police, creating a community of impacted families to help support her as she pursued justice for Sarey.

Nelson is the first police officer to be convicted under Initiative 940 (I-940) and only the third officer in Washington State history to be indicted for murder. The initiative removed the legal requirement that prosecutors prove that the officer acted with malice.

Following the guilty verdict, Leslie Cushman, citizen sponsor and chief drafter of I-940, said that the legislation has come a long way from collecting signatures in 2018.

"This was an initiative to the Legislature, so we had to take a stop there first," Cushman said in an interview with the Emerald. "There was a team of us working on it and we had to collect signatures. After we got enough signatures, we submitted it to the Legislature and they had the opportunity to pass it or not. It went to the voters in November 2018 and we had a robust campaign called 'De-Escalate Washington.'"

In addition to changing the legal requirements for prosecution of police officers, I-940 requires police officers to complete de-escalation and mental health training.

"[I-940] changed the standard for when a police officer could claim that their force was justified. The standard prior to the initiative and being enacted was that a prosecutor would have to establish that they had malice, which is evil intent, and that was a really difficult threshold," said Cushman. "We changed it to what is common throughout the United States, which is the objective reasonableness test and whether a similarly situated reasonable officer would have done the same thing."

The initiative also required the state to pass a law that required officers to administer first aid at the earliest opportunity. The case filing states, "There is no indication in the video that Mr. Sarey was handcuffed by Officer Nelson or that Officer Nelson rendered medical aid to Mr. Sarey after the shots were fired."

This is not the only way in which Nelson disregarded his training, according to the case filing. It states that Nelson, who was a K-9 officer and did not have enough room in his vehicle to transport a detainee in the event of an arrest, should have waited for backup before attempting to handcuff Sarey. Additionally, Nelson could have used a less lethal alternative to subdue Sarey prior to shooting him, including his K-9, Taser — which he never used — and de-escalation techniques.

The State hired use-of-force experts Jeff Noble and Scott Haug who determined that Nelson's repeated failure to follow his training "needlessly provoked the circumstances that led to the use of deadly force against Mr. Sarey."

In their analyses of the footage, both experts found Nelson's second shot to Sarey's forehead to be unreasonable. Noble, however, could not definitively determine if Nelson's first shot was justified and recommended that it be left to the jury to decide.

Haug, however, found both shots to be unreasonable. An excerpt from his analysis is included in the case file: "I have carefully reviewed Officer Nelson's report and the facts cited by Officer Nelson to justify the fatal shooting of Mr. Sarey — they are inconsistent with the evidence. There are numerous inconsistencies. The fatal shooting of Mr. Sarey was an unnecessary and unreasonable application of deadly force by Officer Nelson during a chaotic scenario best described as a police-created emergency."

Sarey is not the only person Nelson has killed. In 2011, Nelson fatally shot Vietnam veteran Brian Scaman in the head after refusing to drop the knife he got out of his car with. Nelson pulled Scaman over for a missing headlight. In 2017, Nelson shot and killed Isaiah Obet in the abdomen and in the head after siccing his K-9 on him for acting erratically. Though Nelson was never prosecuted, the city of Auburn reached a settlement with Obet's family, paying them $1.25 million. The Auburn Reporter obtained documents detailing incidents of misconduct throughout Nelson's 12-year career at the Auburn Police Department.

During victim impact statements at Nelson's sentencing, Simons and Amelia Dillard, Sarey's foster sister, pointed to Nelson's track record in the Auburn Police Department, mentioning the fact that Sarey was not Nelson's first victim.

"Today is a day of justice for Jesse, for our family, but it is also a day of justice for Brian Scaman, who Jeff Nelson also murdered in 2011, and Isaiah Obet, who he murdered in 2017," Dillard said before Phelps asked her to "please don't." Dillard continued, "It is also a day of justice for the countless lives that based on Jeff Nelson's track record, would have ended had he been allowed to continue his reign of terror on the streets," she said.

In her victim impact statement, Simons spoke about the price she and the Sarey family paid for justice. "​​Waiting for this murder trial has taken a tremendous personal toll on me emotionally. I fought this fight through traumatic loss, as my father died in October of 2020. Jesse's mother, Kari, died in June of 2021, and I had to take her off of life support with two of her nephews and her best friend. In August of 2022 his younger brother, Torell Sarey, who I raised, died. Jesse's biological father had died in Cambodia years earlier. Only Jesse's younger and older half-brothers are alive. Jesse's bloodline died with him," said Simons. "For over 2,064 days, I have stayed the course. This fight came at a huge cost to me and my family. I had to take unpaid leave of absence from work to ensure I could be in the courtroom throughout the entirety of the trial, while you Mr. Nelson, were on paid administrative house arrest."

Before Phelps handed Nelson his sentence, she addressed Simons directly. "I've had a note up here on my bench throughout this trial, and the sticky note says, 'The mother that sits alone,'" she said. "You have made every court appearance except for one over the course of these years, every single one except for one. There were times we were here ready to go when the court came back and said, 'I got a continuance.' You came back, you came back, you came back."

In another interview with the Emerald post-sentencing, Simons reiterated the toll the last six years advocating on Sarey's behalf has taken on her. "I feel a kind of lost identity from all the years focused on State v. Nelson," she said. "When the judge did say those words to me, I just was kind of like, 'Wow. She was aware. She was paying attention.'"

Simons said she felt it was necessary for her to attend every proceeding, "When you go on this journey, you can't miss anything because then you have nothing to fall back on. If you see something that's not in the trial, you can't say anything because you missed that motion or that hearing."

Now that sentencing has happened, Simons said she has finally started thinking about what might be next for her. "One of my friends said to me the other day, 'That was your lifeline. That's all you did. Who are you? What is your joy? What do you want?' [We] had talked before about what will be my purpose and I think it'll come to me naturally."

Simons said she has thought about telling Jesse's story in the form of a graphic novel. "I really want to make a graphic novel. I want to find somebody who is talented enough to do the imagery, and then I bring in the story," she said. "There's just so much in my journals that I wrote. I have eight journals that I did while I was in the trial. So [I'd] pull out some excerpts from those."

In addition to telling Jesse's story, another motivator for writing a graphic novel is to be able to provide other impacted families with a template to help prepare them for trial. "I think what happened in our courtroom is a template for other families," said Simons. "I see myself coming into it from an educational [perspective,] using the graphic novel zine type approach that makes it easier to be able to get the information out there. So if I was able to make it virtual as well as hard copy, then it could really get out there to teachers [who would] be able to use it."