Town backs mom who put child molester in his grave

April 06, 1993|By McClatchy News Service

SONORA, Calif. -- Hollering "Free Ellie" and waving freshly printed bumper stickers, 100 or more people gathered outside the courthouse where Ellie Nesler faced arraignment on charges she killed the man accused of molesting her son.

"Justice drew me out," said Bob Pierson, trying to elicit honks from heavy downtown traffic with a sign that read "No Second Time Sex Offenders."

She was freed after friends posted $500,000 bail.

Authorities in this Gold Rush town dismissed yesterday's demonstrations as a vocal minority and said most people in Tuolumne County don't support the type of vigilantism Ms. Nesler represents.

"We had the taking of a life Friday," said Assistant Sheriff Michael Costa. "If we condone that as a society, we can just throw the rest of the system away."

On Friday, Daniel Mark Driver, 35, sat in a makeshift courtroom in nearby Jamestown for a preliminary hearing on charges that he molested four boys between 1986 and 1988. One of them was Ms. Nesler's son, who was 6 at the time.

Witnesses say Ms. Nesler -- set to testify that day -- walked up behind Mr. Driver, put a .25-caliber semiautomatic pistol to his head and fired five times.

"I'm not sure some of us wouldn't have done the same thing," said Kim Podoll of Sonora as she joined the rally outside the county's main courthouse. "I don't think the laws are stiff enough in cases where they've done it before."

Criminal experts say that type of community support could make an apparently clear-cut murder case a difficult one to prosecute.

No matter how clear the prosecution's case, no matter what a judge may instruct a jury about its legal duty, "the jury can just come back and find her not guilty if they feel strongly enough about it," said Kent Scheidegger, legal director of the prosecution-oriented Criminal Justice Legal Foundation in San Francisco.

The 300-year-old process is known as "jury nullification." At least theoretically, it closes the case forever.

Historically, it has been used successfully in the name of several causes -- from Quakerism in 17th-century England to racial bigotry in 20th-century North Carolina. Even if they don't vote to nullify the case, said one expert, a jury can apply the law in a way to mitigate punishment.

James Larson, president of the defense-oriented California Attorneys for Criminal Justice, predicted community sentiment will become an official factor early in the case.

Prosecutors could ask for a change of venue to get away from local biases. But more likely, Mr. Larson predicted, the prosecution will offer Ms. Nesler a deal to keep the case from going to a jury.

Tuolumne County residents hail Ms. Nesler as a hero forced into violence by a lax justice system. They view Mr. Driver's history as reason enough for Ms. Nesler vigilantism.

Mr. Driver was convicted of child molestation in 1983 and placed on probation, court records show.

Last December, he came to authorities' attention again. Palo Alto Police arrested Mr. Driver on shoplifting charges, according to Sgt. Dennis Burns.

While still in custody, Mr. Driver was charged in a local child molestation case.

Then police discovered the 1989 Tuolumne County warrant.

Mr. Driver was taken to the Tuolumne County jail Feb. 27 and was being held there on $20,000 bail until he was shot to death as he sat next to his attorney.

Over the weekend, more than 100 people called the Tuolumne County Sheriff's Department to protest Ms. Nesler's arrest, said Mr. Costa, the assistant sheriff.

Yesterday, Tim Newhoff of Sonora established the Ellie Nesler Defense Fund, he said, because "something needs to be done."

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