Summary of the Testimony Thus Far in Neighbor Alex Nieto’s Wrongful Death Trial

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Last week, the civil trial pursued by the family of Bernal neighbor Alex Nieto against the San Francisco Police Department got underway to determine if police wrongfully killed Alex Nieto during a March 21, 2014 officers-involved shooting on  the north side of Bernal Hill.

San Francisco Chronicle reporter Kale Williams described the key elements of Wednesday’s testimony when SFPD officer Richard Schiff was on the stand:

Upon pulling within 25 to 35 yards of Nieto, Schiff testified, he got out of his car and immediately demanded to see Nieto’s hands, at which point Nieto began walking “purposefully” toward the officers and responded, “No, you show me your hands.”

“As we got out of car, he took what we call a boxing stance,” Schiff said, getting up to show the jury how Nieto allegedly raised his arms to his chest. Schiff said he saw the pointed weapon and the red laser beam before he began shooting, and stopped when [SFPD training sergeant Jason] Sawyer instructed him to cease fire.

Schiff said he continued to fire even after Nieto went down because Nieto ended up in a “prone position,” still facing the officers and appearing to point the Taser.

On Thursday, lawyers for the Nieto Family presented their new witness, Antionio Theodore, who described seeing something very different that night. Joe Rivano Barros from MissionLocal summarized Theodore’s testimony:

Theodore — a Trinidadian singer with the group Afrolicious — said that Nieto had his hands in his pockets the entire time and did not make any movements towards his waist. He also said the only command he heard from officers was one “Stop,” before they started firing and said he heard nothing from Nieto, a contradiction of police testimony offered on Wednesday.

“[One officer] fired a first shot at the man in the red jacket,” testified Theodore, who was the last witness called to the stand and was examined by the plaintiffs until the trial ended for the day. “He then fired another shot, fired a third shot, the person then fell on their knees, [and] within a second he got a fourth shot and he fell on his face.”

Theodore then testified that a 45-second pause followed the fourth shot, when Nieto had already fallen to the ground. At that time, another officer in a parking lot down the hill “was loading up a semiautomatic rifle and he got on the scene [of the shooting] right after the fourth shot, and they all started firing up on the man while he was on the ground.”

Theodore returned to the stand on Friday, as Deputy City Attorney Margaret Baumgartner, representing the defense, questioned his recollection of events.  Kale Williams from the Chronicle described what happened next:

Baumgartner repeatedly questioned Theodore about a deposition she took from him in May 2015, in which some of his answers were purportedly different than the ones he gave in court.

Theodore had not gone to police to give a statement in the immediate aftermath of the killing — he said he was scared of them and didn’t trust them — and city lawyers have suggested he is biased against law enforcement.

Asked Friday whether he had ever spoken with an investigator from the offices of the Nieto family’s attorney, Theodore replied, “No.” But Baumgartner read a transcript from the deposition in which Theodore recounted speaking with the investigator on three occasions, once in person and twice on the phone.

Baumgartner also indicated that, in the deposition, Theodore had recalled telling the crowd at a music venue that he had witnessed the shooting and thought it was unjustified. But Friday, Theodore said he had not made such a public statement.

At one point, Theodore attributed his difficulty recalling specific dates and times — and recalling his deposition answers — to heavy drinking.

“You have a different memory now from the one in the deposition?” Baumgartner asked.

“Slightly,” Theodore responded. “I drink a lot and that kind of helps sometimes, but I do not remember.”

The Nieto trial resumes this week, with testimony expected to continue at least through Friday.

(Review all Bernalwood coverage of Alex Nieto)

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