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Sunday, June 16, 2024 | Back issues
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Jury Set to Decide SF|Police Shooting Case

SAN FRANCISCO (CN) - Attorneys representing San Francisco and the family of a man shot and killed by police two years ago offered dueling distillations of the shooting in final arguments to a jury on Wednesday.

Civil rights attorney Adante Pointer highlighted evidence that he says contradicts four San Francisco police officers' claims that 28-year-old Alex Nieto was gripping a gun-shaped Taser when he was shot and killed by police two years ago.

The city's attorney, Margaret Baumgartner, called that evidence "inconclusive" and told the jury not to rely on the testimony of one "not credible" eyewitness who contradicted the police officers' story.

The closing statements delivered to an eight-member jury Wednesday morning ended an eight-day trial of a lawsuit accusing police officers Jason Sawyer, Roger Morse, Richard Schiff and Nathan Chew of excessive force and civil rights violations.

Pointer presented the jury with a crime scene photo showing the Taser Nieto allegedly pointed at officers lying on the ground in the off position next to his body after the shooting.

"This picture demonstrates that Taser was not on, was not being brandished or threatening these officers," Pointer said.

Baumgartner said the photo of the Taser on the ground "has no weight" because many things could have occurred between the time of the shooting and the time the photo was taken.

She suggested the Taser could have been turned off when Officer Morse kicked it out of Nieto's hand after the shooting.

Spectators in the courtroom gasped after the city attorney suggested Nieto himself could have turned the Taser off after he pulled its trigger and before he was killed by a hail of bullets.

Pointer disputed the accuracy of an expert witness's analysis of the Taser, which found the Taser's internal clock was off by four and a half minutes and that its trigger was pulled multiple times during the police shooting.

"The second set of timestamps was based on speculation and logic," Pointer said. "Speculation is guess work, and you've been asked not to engage in guess work."

The city attorney said the expert who analyzed that Taser determined the time drift independently without knowledge of the exact time the shooting occurred. Pointer produced a document which he said shows the analyst did know the time of the shooting before he conducted that analysis, suggesting the timing was intentionally changed after the fact to support the officers' claims.

The civil rights attorney also asked the jury to consider how a bone fragment ended up in Nieto's jacket pocket if he was holding the Taser in his hands when police shot him.

"Alexander Nieto was not Harry Houdini," Pointer said. "That's physical evidence - unbiased, uncontroverted. His hand was in his pocket, ladies and gentlemen."

Baumgartner responded, "We don't know how that got there, but there were no holes in his pocket so we can't infer anything from the bone in his pocket."

A witness, Antonio Theodore, testified that Nieto's hands were in his pockets when he was shot and that police only shouted "Stop" before firing their guns at him, not "Show me your hands" as Officers Schiff and Sawyer testified.

The city's attorney ran through a list of reasons why the jury should not rely on Theodore's testimony. She said the witness was far away when he saw the shooting, that he had bad eyesight, didn't wear glasses, was distracted by his dog and had admitted his memory has been damaged due to drinking.

She also told the jury Theodore appeared to be "talking to himself on the witness stand" and that he contradicted numerous statements he gave in deposition testimony.

"He is simply not a credible witness," Baumgartner told the jury.

Baumgartner finished her closing statement by urging the jury to look closely at the evidence, saying they will find that each officer acted reasonably when they used lethal force in the face of an imminent threat just as they were trained to do.

Given the last word of the trial, Pointer barraged the jurors with a stream of questions, asking how the Taser got turned off, why the Taser's time stamp was altered, how a bone fragment ended up in Nieto's pocket and why no other witnesses could verify the officer's account of what happened.

Pointer also asked how Nieto could have continued pointing his Taser at the officers, even after he fell to the ground in a hail of bullets. The defendants say Nieto assumed a "tactical position" on the ground with his head up and hands pointing the weapon at them as they continued firing at him.

"Mr. Nieto was a lot of things, but he's not Clark Kent. He's not Superman," Pointer said. "How does someone not named Clark Kent continue to point a weapon after being shot multiple times?"

U.S. Magistrate Judge Nathaniel Cousins told the jury that to reach its verdict, it must decide based on a preponderance of evidence whether the officers used excessive force and acted under the color of law to deprive Nieto of his civil rights.

For undisclosed reasons, the plaintiffs' third claim of wrongful death was dropped from the lawsuit before the trial ended.

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