I am not a lawyer. I don’t know the rules of evidence. I don’t know what you can and can’t mention in a closing argument. But I was there in the courtroom for most of the Nieto trial, so here’s what I would want to say if I were the one facing the jury in the case tomorrow morning on behalf of the family.
Let’s start like this:
Ladies and Gentlemen of the jury, you have heard two very different versions of the events of the night when Alex Nieto was shot and killed by San Francisco police officers.
One version comes from the officers themselves. They are, as you have heard in this case, professional witnesses; they are trained to appear in court, to help persuade juries to convict suspects. They have a lot of experience making a good impression; some of them have done this hundreds of times.
They have a very big stake in this case. If they officers did, in fact, shoot and kill Alex Nieto without the proper legal grounds – and if they admitted they screwed up and shot a man who should never have died – their careers would have ended. The rookie officer who apparently was the first to open fire was still on probation; one bad incident and he would be gone from the force. The sergeant who was with him was soon promoted to lieutenant; if he’d admitted to killing a man who should never have been shot, his promotion, his career – and his very lucrative pension – would be in jeopardy.
Here is a true fact: The officers involved, by definition, by axiom, by the reality of police life, could not possibly come forward and admit that they did something terribly wrong that night.
Oh, and if they were to admit that, the city, represented ably by the representatives of the City Attorney’s Office here in this court, would be on the hook for millions of dollars in damages.
I have never heard of an instance where a police officer killed someone and then admitted it was a bad shoot. That would be an admission that they were unqualified to continue in their chosen line of work. It doesn’t happen. Ever.
The other version of events comes from a man who has no stake in this case at all. Mr. Theodore didn’t want to come forward to tell what he saw. He’s an African American man who doesn’t trust the police; in that, he’s not a bit unusual.
He didn’t know Mr. Nieto or his family. He has no financial stake in this case. He has absolutely no motive to fabricate what he saw; in fact, he had every motive to hide from the entire case and never tell anyone anything. That would have been the safe decision for him, just as presenting a scenario where the killing was justified is the safe – in fact, the only — option for the officers.
The city has tried to impeach Mr. Theodore, to say that his memory wasn’t perfect, that he has been drinking a lot since the event. But all of the inconsistencies that the city attorney has pointed to are only marginally relevant. Never did he back off from the description of what happened that night.
Ask yourself: Why would he bother to make up this story? He has nothing to gain from it – and by putting himself up against the cops, he has a lot to lose. Maybe his story isn’t perfect, but it doesn’t have to be: Unless he completely hallucinated what he says he saw, unless nothing – nothing – in his account is remotely accurate, then the story the police officers told you is dead wrong.
We all know that no eyewitness testimony in a fast, traumatic event like this one is perfect. In the moments of fast action, in the fog of war, everyone forgets little details; nobody has the memory of a video camera, and sadly, there was no video of this event.
So let’s not get into the details. Let’s look at the facts:
The Taser that was found near Alex Nieto’s body was not emitting a laser light. If Mr. Nieto aimed a Taser at the officers, and turned on the laser light, he would have somehow then had to turn it off again, after absorbing some 14 bullets and dying on the ground.
The officers were firing powerful .40-caliber pistols that are designed for their “stopping power.” If Nieto was hit multiple times and was still a threat, if he was able to dive to the ground, as the cops say, and assume another firing position, he would have had to be some sort of superhero.
I would urge you not to put too much stock in the words of the expert witnesses who talked about police training, police procedures, and whether the officers in this case followed the rules. Expert witnesses are hired by both sides. They typically disagree, as they did here.
Use your common sense. How could the officers have seen the laser light if nobody can prove that the Taser was even turned on? Was it really necessary to fire 58 rounds of lethal lead at a young man who almost certainly couldn’t have been a threat after absorbing the first few shots? How was it that, as the city attorney says, Alex “inexplicably” remained standing after taking enough bullets to kill an elephant?
Or was he a young man who studied criminology at City College, worked as a security guard, had plenty experience with the police – and would have known exactly how armed officers would respond to a man who aimed a Taser at them?
Why would he put himself in that situation? Why would he challenge and threaten people who he well knew would respond by shooting at him?
Or could he have been on his way to work, heading down the hill past where the cops were, seeing no reason to respond to or even acknowledge them because he knew he had done nothing wrong?
Could this all be a tragic mistake? Might a rookie officer, with less than two months on the job, have overreacted, started pulling his trigger, and set off a hail of gunfire that gave Alex Nieto no hope of surviving?
Could Mr. Nieto have, as the one witness who has no stake in the outcome testified, had his hands in his pockets? Could that explain why, as the coroner testified, there was a bone fragment in that pocket? Is there any other way that bone could have wound up there?
Alex Nieto was a Latino man in a neighborhood that is rapidly gentrifying, where working-class Latinos such as himself are being forced out and replaced with higher-income mostly white people – like Mr. Snow, who thought Nieto was a gang member and who texted that he wished he could shoot him.
This case in not about racial profiling, not in the way the police presented it. But in a larger sense, that’s exactly what it’s about. Ask yourself: If Alex Nieto was white, was wearing different clothes, would he be alive today?
You as jurors have to decide who to believe, who is telling the truth, and who has a motive to manipulate the facts. You have the power of justice; please use it.
