SONORA, California -- A judge told the jury Thursday they could consider a verdict of manslaughter in the trial of the Northern California woman who killed her son's alleged molester.
Ellie Nesler is on trial for the murder of Daniel Driver, who she shot six times at close range as he sat in a courtroom last April. Driver was accused of molesting several children, including Nesler's son.
Both the prosecution and defense wanted the trial to be an all or nothing case: either guilty of first-degree murder or innocent. But Judge William Polley said he felt it was proper to give the jury the option of a verdict of second-degree murder or manslaughter.
Defense attorney Tony Serra immediately told Polley such an instruction would be grounds for an appeal.
'You cannot give instructions about manslaughter if the defense objects, and I object,' Serra said.
However, Polley disregarded the objection and went on to instruct the jury of seven women and five men that they could consider any of a number of verdicts.
Serra then said he would fashion his closing statements toward either a not guilty or manslaughter verdict.
'I'm constrained by the evidence and instruction to argue for manslaughter,' said Serra before beginning his closing arguments. 'I would have liked to argue for innocence by insanity.'
The famed defense attorney was spellbinding as he delivered his closing statements. With equal amounts of passion and emotion, Serra said Nesler collided with Driver in an 'evil second.'
Nesler -- dressed in a turquoise blouse and flowered skirt -- cried quietly.
Serra described Driver as 'a Jack the Ripper, who stalked children. A rotten man, a sick snake with no goodness in him.'
Prosecutor Jo Graves, meanwhile, hammered away at contradictions in statements made by Nesler. Graves went through Nesler's taped confession, stopping at certain quotes for emphasis.
'In her confession,' Graves said, 'Ellie Nesler said, 'He's dead. I'm glad he's dead. The man deserved to die. Maybe I'm not God, but I'm the closest thing to it.''
The prosecutor also told the jury that 'sympathy cannot overpower reason in this case.'
If the jury finds Nesler guilty of any charge, there will be a second hearing on her sanity. Nesler pleaded not guilty by reason of insanity.
Nesler had considered Driver a friend before he was charged in seven separate molestation incidents between 1986 and 1989. Four of them involved Nesler's son, who is now 11. The two met at a Sierra summer camp where Driver washed dishes.
Driver was convicted of child molestation in 1983 but served no prison time.
Nesler said in a pre-trial interview that she feared Driver would escape punishment again in the court system. She also disclosed that she had used methamphetamine, or 'crank,' the day of the killing.
