One of the city’s star witnesses in the Alex Nieto case took the stand today, and the result was one of the worst legal train wrecks I’ve seen in years.
In his pre-trial deposition, which was quoted in court, and in his statements to the jury, Evan Snow, who was on Bernal Hill with his dog that night and said Nieto had threatened him, effectively admitted that:
— He had assumed Nieto might be a gang member because he was a Latino man wearing a red jacket, and based on Snow’s experience at Berkeley High School, that was grounds for concern that Nieto might be someone to fear.
“Given my experience at Berkeley High and the attire of gang members, I made a quick judgment to put Alex – Mr. Nieto – in that category of people I would not mess around with based on his attire at the time,” his deposition stated. “Berkeley High was very segregated. There were various gang factions and the Latino or Mexican gangsters would wear red windbreakers and black hats with flat bills, which is what Mr. Nieto was wearing.” He told the jury that “I saw him wearing clothes similar to what gang members wear.”
— He allowed his off-leash Siberian Husky, who was about a year old and aggressively pursued people with food, to chase Nieto because Snow was “distracted” by “an attractive female jogger” and was looking at her butt. One of the three most important things he remembers about the incident was the “jogger’s butt,” he said in a deposition.
— The dog was “barking and howling” at Nieto, Snow said in his deposition, although in court he said the better term was “vocalizing.”
— He texted a friend and said that he wished he was living in a state like Florida, where it would have been legal for him to shoot Nieto himself.
— He “might have” used a racial slur in referring to Nieto, but that was okay because his grandfather, who was Latino, sometimes used similar language.
— He talked about the joggers butt because he wanted to bring some levity and humor to the situation.
And Snow was supposed to be a witness for the city.
It boggles my mind that the City Attorney’s Office put him on the stand.
Deputy City Attorney Margaret Baumgartner asked Snow, who according to LinkedIn is a “User Experience Design Professional” at a tech company, to talk about that evening, and according to his testimony, he was walking his dog on the hill when he first saw Nieto.
He said he was immediately concerned because Nieto had “tight shoulders” and his “demeanor was very erratic.”
Snow’s dog ran over to Nieto, who was eating food, because the dog had a tendency to pursue people who might offer her a treat. At first he was able to call her back, but after he got distracted by the jogger’s butt, the dog took off again. He tried again to call the dog, but “she wasn’t responding, she was transfixed” by the food.
Nieto, Snow said, lifted his shirt (although by most accounts he was wearing a jacket) and showed what appeared to be a gun. He then “raised it in a menacing way.”
Snow, a registered gun owner, said he assumed the weapon was a pistol and that he was going to get shot. Nieto at this point had climbed up on a bench, possibly to get away from the barking dog.
Snow testified that Nieto the aimed the weapon at him and then at the dog – and at that point, it became clear that it was a Taser and not a pistol. Eventually, the dog returned to Snow, who quickly left the area. “I was very upset,” he said, and while he considered calling 911, he opted to call a non-emergency police number but couldn’t get through.
I don’t want in any way to dismiss the fear that Snow may have experienced if, as he testified, someone pointed what appeared to be a pistol at him. That’s a terrifying situation to be in. He said he feared for his life — “I thought I was going to die that night.” The fact that, after that experience, he never called 911 and gave up on contacting the police is a bit weird, although that’s not for me to judge.
But putting someone on the stand who essentially admitted to racial profiling and then made horribly insensitive comments … not good.
The idea of this witness, I suspect, was to give the jury the impression that Nieto was acting oddly (in his deposition, Snow said he thought the young man was mentally ill because he grew up in Berkeley and had worked in an office in the Tenderloin and thus had a lot of experience with mentally ill people), and was aggressive enough to aim his Taser at another person.
In the deposition, the Nieto family lawyers pointed out that it might not be unreasonable for a person who was being pursued by a loud, large, aggressive dog to react with fear.
But never mind that: The point was that the jury should see Nieto as a possible menace who was willing to pull his Taser and aim it at someone.
Snow did testify that he never saw a red laser dot from the Taser, didn’t know if it was even turned on, and never saw it fired.
But I walked away with two impressions: First, I’m not sure how any of this is relevant – the cops who responded knew nothing of Mr. Snow’s experience, since he had decided not to call 911 and gave up after not getting through on the non-emergency line. The fact that he might have pulled a Taser on a dog that he might have thought was attacking him has little bearing on whether a guy who studied criminology, had plenty of experience with the cops, and was a security guard would have pulled the weapon at armed officers who he knew would respond by shooting him.
Second, if the jury was supposed to find Snow’s dog story credible, I think any hope was utterly undone by the rest of his testimony.
When Lateef Gray, attorney for the Nieto family, asked about his references to the jogger’s butt, Snow said he was looking to put a little humor into the situation. I don’t think that plays well in a case about a young man’s death.
Nor does the fact that during a trial break, Baumgartner and the accused officers were joking and laughing — while Alex Nieto’s parents sat and watched the men who killed their son act like they were at some kind of a party.
After Snow was dismissed, Baumgartner did what defense lawyers always do at a certain point in the case: She asked the judge to grant what would amount to a dismissal. She said that “no reasonable jury” would believe the account by Antonio Theodore that contradicted the police version of events.
Adante Pointer, lawyer for the Nieto family, pointed out that, while the city was able to nitpick parts of Theodore’s testimony, nobody has directly challenged the essence of his claim, that Nieto was shot with his hands in his pockets and never pointed the Taser at the cops.
These dismissal motions are always a longshot – judges don’t like to take cases away from juries, and this one was no different. The judge said the city was welcome to try again after the trial was over, but for now, this case will go to the jury.
The city’s final witness was a man named Don Cameron, a former Berkeley cop and then BART cop (which alone gives me pause, but that’s another story, or two, or three) who now trains officers in the use of force. He also makes a lot of money working as an expert witness in police-abuse trials; he told me outside the courtroom that he charges $425 an hour for that work, and he has been on the stand hundreds of times.
Most of the time, he told me, he works with cities and departments where officers are accused of wrongdoing. Sometimes he works for plaintiffs, but not as often.
He testified that in the past few years he has been hired by the city to defend police actions at least 20 times. That’s a lucrative gig.
He said that everything the cops did in this case was just fine, perfectly in synch with their training, and that he saw nothing wrong whatsoever.
Pointer, in cross-examination, asked Cameron if it were true that in most cases, like this one, there are qualified experts on both sides who disagree. Yes, Cameron said, that’s the situation.
As it is here.
The defense rested its case after Cameron, and tomorrow morning the two sides will present closing arguments. Then it goes to the jury.
