The Trial

Cops on Trial

What

The trial for the federal civil action filed by Refugio and Elvira Nieto v. SFPD officers and the City and County of San Francisco for the wrongful death and civil rights violations of their son, Alejandro “Alex” Nieto.

Days of trial:

March 1st to March 10th; year 2016

Time:

9am to 4pm, (lunch break 12pm-1pm)

Where:

Federal Courthouse 450 Golden Gate, 15th floor, Courtroom D

Who:

Refugio and Elvira Nieto (the parents of Alex Nieto) have sued the four San Francisco Police Department officers—Lt. (then Sgt.) Jason Sawyer and officers Nathan Chew, Roger Morse, and Richard Schiff— who fired 59 bullets at Alex Nieto, killing him on Bernal Heights Park on March 21, 2014. Judge Nathaniel Cousins is the federal court judge.

Jury Composition

  • 8 person jury selected; Jury decision must be unanimous
  • Gender: 6 women, 2 men = 8; Race: 5 Caucasian women, 3 persons of color (Woman of apparent Indian descent: Man of apparent Indian or Middle Eastern descent, Man of apparent Asian descent)
  • What we know about jury: During jury selection we learned that one of the men is very disturbed by the sight of blood, one of the white women does not believe any monetary compensation should be given for loss of a child’s life, one of the white women comes from a racially mixed family. Jurors come from various cities of Northern California, one of the white women is a San Francisco librarian

Index to Days of Trial

Day of Trial

Procedures and Evidence Introduced

Day 1: TUE March 1st
  • Jury selection
  • Opening statements
Day 2: WED March 2nd
Day 3: THURS March 3rd
  • Testimony of Ofc. Nathan Chew
  • Testimony of the 911 Caller Justin Fritz – Eyewitness to Alex and Ear witness to shots fired and pause
  • The 911 Call (initial volley of shots audible) (listen to a partial version in I-Team story by KGO ABC Ch7, but please note that there is an incorrect statement in KGO report. The 911 Caller testified that he never saw the “taser”, his partner told him that Alex was touching the gun at his hip and the 911 Caller imagined that Alex was perhaps pretending to draw)
  • SFPD CSI Officer Rosalyn Rued
  • Photos of crime scene shown
  • SFPD Homicide Inspector John Cagney and Chronological Homicide report referenced as relevant to Taser evidence
  • Eye Witness to Shooting (and to pause between shots) Antonio Theodore (On Direct)
Day 4: FRI March 4th
  • cont… Eye Witness Antonio Theodore (On cross examination)
  • Medical Examiner Amy Hart, autopsy report referenced
  • Photos of autopsy shown as evidence
  • Autopsy drawing by Medical Examiner Hart introduced into evidence
  • Robin Bullard Eyewitness to Alex and Ear Witness to shots and pause between shots
  • SFPD Criminalistic and Firearm Expert Officer Croya on number of casings and bullets shot from officer guns and which bullets were extracted from body and matched to which gun
  • Officer Roger Morse (4th shooting officer) providing testimony that contradicts other three officers
Day 5: MON March 7th
  • Ofc. Roger Morse
  • Taser International Expert Witness
  • 3D Scene Reconstruction Expert
  • Dr. Clark, police policy expert for Plaintiffs
  • Elvira Nieto
Day 6: TUE March 8th

 

Day 7: WED March 9th

 

Day 8: THUR March 10th

  • Evan Snow, (racist) Alaskan husky dog owner
  • Tim Isgitt, partner to 911 Caller
  • Lt. Jason Sawyer, recalled to witness stand
  • Rule 50 Motion to Dismiss case by City; deferred by judge
  • Mr. Cameron, expert on police training for Defendants

 

  • Jury instructions
  • Closing arguments

 

  • Jury verdict delivered: Officers did not use excessive force.

Sources for our Report

Members of Justice & Love for Alex Nieto Coalition are attending the trial. Below is a summary of key trial moments and accumulating evidence. Our primary sources are Ben Bac Sierra’s notes (see reference below) and Adriana Camarena’s notes. (This page maintained by A. Camarena)

For play by play accounts, see Ben Bac Sierra’s posts Todo Bodo Down: The Bac Sierra Blog:

Also check out our list of Media coverage of the trial! Our local and independent reporters have done the best coverage! Hope you can keep up the good work!

For information prior to Trial see… Case Status and Alex’s Story.

Opening statements (what each side says the evidence will prove)

SFPD/City Attorney Margaret Bumgartner says Nietos/Counsel of record Adante Pointer says
  • Dispatch sends out a call about a Latino Male, 6 foot tall, wearing a red jacket, black pants, gun at his hip, eating sunflower seeds or chips
  • Officer Richard Schiff, Sergeant (now Lt.) Jason Sawyer arrive first by police car followed by Officers Roger Morse and Nathan Chew in their police car.
  • Officers Richard Schiff and Sergeant Jason Sawyer circumvent the locked gate at the park entrance at the bottom of the hill by driving on a pedestrian path
  • They see Alex Nieto walking “purposefully” towards them down middle of the road
  • They stop 75-100 yards away and ask Alex Nieto “Show us your hands”. Alex Nieto responds, “No, You show me your hands”
  • Alex Nieto takes his taser out of his holster and stands in a punched out (both arms extended) tactical position.
  • Officers see a red laser light coming from the weapon and shoot in fear of their lives
  • Alex Nieto drops to a punched out tactical prone (i.e. belly down) position on the ground
  • Ofcs. continue to shoot until “threat is neutralized”, i.e. until Alex dropped his head and taser
  • 59 bullets were fired at Alex Nieto
  • Eyewitness says that Alex Nieto was walking casually down the hill with his hands in his pockets
  • First officers to arrive (Schiff and Sawyer) open car doors, conceal in V between door and car, yell “Stop” and within seconds shoot first rounds that mortally wound Alex
  • Officers Schiff and Sawyer decide to keep on shooting after Alex goes down. Each unload one clip (13 bullets) and reload their .40 caliber guns. They shoot 23 and 20 shots respectively each one.
  • Ofcs. Chew and Morse arrive and start shooting; and fired 5 and 11 more shots.
  • A crime scene photo of Alex turned over on his back, riddled and bleeding out was shown.
  • Officers wrongfully killed Alex Nieto.

Controversies and Evidence…

Did the 911 caller mention a threat?

Around 7:11pm Justin Fritz on request of his partner Tim Isgitt called 911. Prompted by the dispatcher they provide information on Alex’s height, weight, race, location, what he is wearing. Callers remain online throughout. Dispatcher requests caller to keep Alex in sight and even get closer.

No threat is reported in the 911 call. Neither Fritz nor Isgitt interacted with Alex Nieto.

Fritz testified that when passing Alex he did not see a weapon on Alex. Fritz only saw Alex eating and making up and down motions with hand as one does to draw food to mouth, while walking near chain link fence.

Fritz testified that he got increasingly worried because Isgitt became increasingly agitated. Isgitt said Alex was reaching down to touch his weapon and Fritz IMAGINED that Alex was practicing to draw. So, Fritz began imagining that this may be a Sandy Hook or Colombine scenario. [Note from Justice&LoveForAlexNietoCoalition: For the record, the majority of mass shooters are white.]

The Apology: When court goes to recess, out of sight of judge or jurors, Fritz apologized to Nietos: “I am very sorry. We never meant to cause you any harm. We thought we were doing the right thing, keeping people safe. No parent should have to go through what you have gone through.” Refugio Nieto extended his hand and embraced Fritz. Elvira heard the apology but did not allow Fritz to make contact. We remind our readers that grief is an individual journey and each victim of violence is entitled to find their peace in their own way. Refugio later said that at that moment he was reminded of Alex’s words that even with the people that we have conflict we need to take the higher ground and show the best of ourselves.

Did dispatch radio relate a threat to officers?

7:11 pm Dispatch radio issues priority A class call to Bernal Heights Park about a Latino male, 200 pounds, 6 foot tall, wearing red jacket, black pants, gun at his hip, eating sunflower seeds or chips.

An A class call is the highest priority call. It was issued because the caller erroneously said there was a gun.

What was Alex’s state of mind right before encountering officers?

Robin Bullard was the last person to see Alex Nieto alive. He walks his dog past Alex and then walks down the side trail on the bend where Fritz and Isgitt have descended while calling 911.

Bullard testifies that he was not threatened by Alex. He said, “He was just a guy. Just a guy…” He notices that Alex’s red 49ers jacket is brand new and wonders whether Alex might be a tourist. Bullard testified that he almost talked to Alex, thinking Alex was exercising his right to open carry. Bullard was about to inquire about the weapon, when his dog approaches Alex because Alex is eating a burrito.  Bullard knows that some people are afraid of dogs or find them a nuisance and calls back his dog.

As he descends down the side trial, he encounters the 911 callers and even converses with one of them, mentioning that he thought California was an open-carry state. He had just reached the first street Stoneman when the shots fired by police rang out.

How many shots were fired?

No controversy: 59 shots were fired. The rookie officer Richard Schiff and Sergeant (now Lt.) Jason Sawyer rode their police car past the locked gate and confronted Alex Nieto first. Ofc. Schiff unloaded an entire clip and reloaded his .40 caliber gun, firing a total of 23 rounds. Sgt. Sawyer unloaded an entire clip and reloaded his .40 caliber gun, firing a total of 20 bullets. Officers Morse and Chew arrived next in their car and respectively shot 11 and 5 bullets.

Officers are responsible for each shot fired. Their guns are not automatic and they must pull the trigger every time. By law, they must continuously assess the situation for a threat. They can only use their firearms if the threat implies serious risk of death or bodily injury to themselves or others. Officers must stop firing as soon as the “threat is neutralized.” In other words, officers must justify every bullet expended.

The facts contested at trial…

SFPD officers say… Contradictory evidence says…
Did officers provide Alex Nieto proper warning?
Ofc. Schiff drove past other officers gathering at the northside Bernal Heights park gate who were setting a perimeter, under alternative guidelines that seek to avoid use of force. One of the officers at the gate had a rifle.

 

Ofc. Schiff did not turn on his lights or sirens when driving up the hill.

 

Officers stopped their car 30 yards away from Alex Nieto, exited and each took cover in the v-shaped space between their open car door and the body of the car.

 

Ofc. Schiff alleges that Alex Nieto was walking “purposefully” towards them. He claims to have made eye contact with Alex Nieto and saw Alex’s forehead “scrunch up” and his cheek bones raise, which told him Alex was visibly upset.

 

Schiff and Sawyer say they shouted commands “Stop!” “Show me your hands”. Alex Nieto allegedly shouted back “No, show me your hands.”

 

 

Mr. Theodore was on a dirt trail on the hill raised above the paved trail of the park. He observed officers gathering at the northside gate of the park, including an officer who had started to walk up the path with a rifle.

 

A police car goes around the gate, past these officers, and up the hill to an encounter the man wearing a red jacket, wearing a hat. The police car did not have lights or sirens on. Mr. Theodore was not precise on how far away they stopped.

 

Mr. Theodore testified that the man in the red jacket was walking casually down the hill with his hands in his pockets, unaware of police coming up the hill.

 

Mr. Theodore, as well as two other witnesses to Alex Nieto (Mr. Fritz and Mr. Bullard) have all testified that they saw Alex Nieto wearing a baseball cap with bill facing forward. The autopsy report also shows that there is damage to Alex Nieto’s baseball cap consistent with a wound to his temple. Material evidence points to the fact that Alex Nieto was wearing a baseball cap making it impossible that Ofc. Schiff saw him “scrunch up” his forehead. The autopsy report also shows that Alex’s sunglasses were broken and there is a wound on his cheek consistent with the glasses striking his face likely as he fell to the ground. Material evidence points to Alex Nieto wearing his sunglasses at the time, and therefore, making it impossible that Ofc. Schiff made eye contact with him.

 

Mr. Theodore says the officers exited and took cover behind their car doors with guns aimed, and yelled “Stop!” and within seconds shot four or five times, and the man in the red jacket fell down.

 

Why do Schiff and Sawyer shoot?
Schiff and Sawyer contradict themselves on what Alex Nieto did next. Schiff says Alex raised both his hands to chest level, but then dropped his right hand and drew his taser.

 

Sawyer says Alex Nieto moved his left hand across his chest to draw his taser that was on his right side.

Schiff and Sawyer next claim that Alex Nieto drew his taser and pointed at them in a punched out tactical position with both hands on or near the taser.

 

Both officers claim they saw the red taser laser light, and feared for their lives and started shooting…

Mr. Theodore testified that Alex Nieto’s hands never left his pockets.

 

Mr. Theodore says the officers exited and took cover behind their car doors with guns aimed, and yelled “Stop!” and within seconds fired four or five times.

 

Noteworthy is Ofc. Schiff’s testimony that he was visited in the police station, where he was supposed to be sequestered from other officers, by his father who is also a police officer before he provided testimony. At trial, we also learned that Sgt. Sawyer, who was afterwards promoted to Lt., is married to another police officer, also a Lt.

 

Why do officers keep shooting?… 59 rounds…
Officers claim they held a continuous volley of shots until Alex Nieto ceased to pose a threat to them.

 

Schiff and Sawyer testified that Alex Nieto posed a continuous threat to them by remaining in a punched out tactical position with both hands on or near the taser.

 

They both claim to have seen a red laser light pointed at them coming from the taser.

 

They claim that Alex Nieto held this punched out tactical position standing and facing straight at them while they fired each an entire clip of .40 caliber bullets. They reloaded while covering for each other.

 

Sgt. Sawyer claims that Alex Nieto seemed unaffected by the bullets, and that Alex Nieto at some point actively dropped to a tactical position on the ground also with arms “punched out” facing straight at them and with his head raised.

 

This is when Sawyer decides to put Alex Nieto “in his sights” and shoot him in the head.

 

Officers Morse and Chew arrived at some point during the shooting, and at trial, provided contradictory testimony as to whether Alex Nieto was standing or on the ground when they arrived.

 

Both claim that they were threatened by Alex and shot in fear of their lives.

 

Officers say they stopped shooting when Alex’s head drooped and he put down the taser, and Sawyer shouted, “Cease fire.”

Mr. Theodore says that after the initial few shots, Alex Nieto fell to the ground. He says the shooting stopped and then the two officers unleashed numerous rounds into Alex Nieto who was already on the ground.

 

Mr. Theodore says Alex Nieto never removed his hands from his pockets, and seemed mortally wounded on the ground from the initial shots. Mr. Theodore walked away seriously disturbed by the scene, and did not see another arriving police car.

 

Mr. Justin Fritz, the 911 caller, also recalled a pause between initial shots and a second volley of shots.

 

Mr. Robin Bullard, who was the last person to see Alex alive before the encounter with officers, also recalled a pause between the initial volley and second volley of shots.

 

While all the officers involved claim they believed Alex Nieto had a gun and he was firing, none of the officers saw recoil consistent with a gun being fired, nor ever heard shots striking glass, metal or the ground near them. Some of the officers mentioned that they saw muzzle flashes, which would be impossible for the taser to produce. Officer Morse testified against the other officers that he never saw any red laser light coming from the taser.

 

Witnesses fled the scene during the shooting. Mr. Fritz testified to hearing shots flying and hitting the eucalyptus trees above his head. At this point, he was running downhill, underneath the trees that were to the far right of the officers. His testimony points to a reckless use of force in a public park.

Did Alex Nieto fire the taser or not…?
The City presented as evidence the time stamps from the taser’s microchip. The time stamps were downloaded by Taser Intl on request of the Office of the District Attorney. In their email, the D.A. provided a time of the incident that they were searching for. Taser Intl returned three

 

1st set of time stamps downloaded were from March 22nd, 2014 2nd set of time stamps were recalculated by changing time zone from Greenwich Time to Pacific Day Light Saving Time, therefore, now March 21st, 2014 3rd set of time stamps were recalculated based on a “time drift” theory developed after the D.A. said they didn’t match someone’s story. With recalculation date is March 21st, 2014
2:14:16 19:14:16 19:18:45
2:14:23 19:14:23 19:18:52
2:14.32 19:14:32 19:19:01

 

The second time stamps placed the firing of the taser at the same time that the dispatch and 911 call time stamps show Fritz describing Alex as resting his hand on his “gun.” That is 4 minutes before the shooting takes place.

 

The time drift theory was developed by Taser Intl after the D.A. asked for a recalculation because the time stamps “did not add up to someone’s story.” The Taser Intl expert calculated that the taser clock was slow by -2.36 seconds per day. All things remaining the same, this meant that the taser clock had “drifted” 4.29 minutes since the taser was first produced. (2.36 seconds per day x 114 days to the shooting = 4 minutes and 29 seconds)

 

Once the third time stamps were calculated under the new “time drift theory”, they coincided perfectly with the time of the shooting.

 

 

 

The Crime Scene Investigation (CSI) photos show that the taser is set to an “off” position. When off, the taser does not issue a red laser light. On close visual inspection, the taser is “off” in the CSI photos.

 

When a taser is fired, yellow blast doors open and release afids. Neither blast doors nor afids were found. By way of explanation, the CSI investigator claims it was very windy, and in fact, did not secure the crime scene properly while they chased around money that flew about.

 

Testimony from the Taser Intl expert says that when turned on the taser is maintained in this position by a click button so that the taser does not accidentally turn off while in use.

 

Mentioned at trial but not introduced as evidence is that since the report delivered by Taser Intl the company has received a $2.3 million dollar contract for body cams from the City & County of SF.

 

Ofc. Morse who reached Alex Nieto first alongside Ofc. Chew (who handcuffed him) testified that he saw no taser wires nor red laser light issued from the taser. However, the CSI photos taken hours later show that the taser is “off” but the taser wires and prongs are splayed out in front.

 

The taser time stamps could also imply that the taser was fired on March 22nd during the dawn, after the first night of investigation. The Taser Intl expert testified that his time drift calculations were based on speculation, because he cannot know to what time the taser had been set.

 

SFPD Firearms expert Croya testified that Sgt. Sawyer’s weapon had a flashlight and a red laser light that were fully functional. An alternative theory is that the laser light seen by the officers during their one sided gun battle was Sawyer’s.

 

Overall the entire evidence produced by the City implies tampering with the taser to fit the police officers narrative.

What does the autopsy report say about the trajectory of the shots?
Alex Nieto’s body showed 14 bullet wounds that were caused by at least 10 to 15 or more bullets. Specifically, the medical examiner reported…

 

·       1 wound (N) to the right leg, from back to front, and left to right with slightly upward direction. There is also a bruise to the left shin and knee.

·       2 wounds that correspond to 2 bullets entering from the front to the back of the body in a linear and slightly downward direction: B (to the face) and H (high on the right arm)

·       2 wounds (F and G) that correspond to 2 bullets entering his torso from the left side and lodging into his lung cavity

·       6 wounds that correspond to 7 bullets entering his body in a downward head to toe direction: A (to the left temple), C (to the left chest), I (to the right chest), D and E (these are two wounds that correspond to three bullets entering the left shoulder), and J (a downward shot to the L3 in the back)

·       1 wound (L) that went through the left wrist with a trajectory from left to right. A fragment of bone was found in the left hand pocket of the jacket

·       1 wound (K) that went through the left lower arm

·       1 graze wound (M) to the back of the right hand

 

The easiest form to understand the trajectory of shots fired is to look at the drawing included below. This drawing was introduced into evidence during the trial, alongside a drawing by Dr. Hart. The full medical examiner’s report can be found on www.justice4alexnieto.org

 

How do the Defendants (SFPD Officers) explain the autopsy? How do the Plaintiffs (Nietos) explain the autopsy?
The City Attorney paid $40,000+ to a 3D crime scene reconstruction expert Mr. Frieze to explain the shots according to the SFPD officers’ testimonies that Alex Nieto stood in a punched out tactical position holding the taser, first standing, and then on the ground.

 

The expert used the location of the casings noted in the CSI report to locate officer positions behind their car doors, and the trajectory of the shots from the Medical Examiner’s report to determine from where shots were fired to which part of the body.

 

But the 3D expert considered only a few scenarios, because his intent was to explain everything exclusively according to officers’ testimony:

·       He depicted Alex Nieto on the ground in what one might call a “half downward dog position” while facing downhill. This is his explanation as to how Alex Nieto received a downward shot to the back (lumbar L3). Officers say they faced Alex Nieto, therefore only such a position would expose his back to the officers. The depiction however does not show how Alex Nieto would hold that position and continue to be in a punched out position holding the taser.

·       The shots to Alex’s face (B) and temple (A) were explained by depicting Alex Nieto in what one my call a transition from “half downward dog position” to “cobra position” in which his head and back are arched and his rear end remains partially in the air. Once again common sense would dictate that it is extremely difficult to see how this equates to a “punched out tactical position” on the ground in which arms are extended with a taser. 3D-Alex is depicted resting on his elbows.

·       An image of Alex Nieto was provided in a standing punched out tactical position facing the officers, as well as a half crouch punched out position, but none of the shots he received were actually explained in either of these position, because, well, it would deny officers’ testimony that Alex Nieto remained standing while they shot at him, and only killed him after he and actively dropped to the ground remaining in a threatening position.

·       An image of Alex Nieto half turned to the side was used to explain shots F&G to the   left side of his torso. But these shots match none of the officers’ testimonies, since they all say Alex faced them frontally.

·       The expert tried to refute the claim that Alex Nieto had his hands in his pockets with 3D depictions with hands in pockets by saying that the trajectory of the shots would need to come from the ground and sideways. The problem is that when cross examined, he had to admit that the shots to the hands can also not be explained by standing or laying in a punched out tactical position.

·       In the end, perhaps most damning, the 3D expert witness could not account for the shot to the leg with a front to back and left to right trajectory with an upward tilt. It would require an officer shooting from the left and below.

 

 

The wound to the leg with a slightly upward trajectory, and bruise to the right knee and shin are evidence that Alex Nieto was shot to the ground and fell to his knees.

 

Most likely he was shot in the upper lip (B) and arm (H) once he fell to his knees, since officers are downhill from him, but these shots show downward trajectories.

 

As he is falling, he may have received shots to the left wrist (L), left arm (K), and graze wound on the back of the right hand (M). A bone in his left hand jacket pocket is physical evidence that bone from the shattered wrist ended up in the pocket.

 

With a hit to the face (B), Alex Nieto fell over his hands with his head facing downhill, into the “half downward dog” position depicted in images by the 3-D reconstruction expert.

 

In this prone position, officers shot the seven head to toe downward shots into his body.

 

An officer may have simultaneously circled Alex and shot him in his left side torso. If he continued circling behind him it could also explain the shot to his back.

 

The expert witness also did not take into account the missing 11 casings, which for all we know may have been removed from closer locations to the victim’s body.

 

Common sense would lead us to believe that the simplest explanation is always right. The simplest explanation is that Alex Nieto was shot down to the ground with a first round of shots, and executed with the second round once he lay prone on the ground. This would also be consistent with testimony of two sets of volleys.

 

It is not believable that Alex Nieto withstood a barrage of bullets, and then dropped unharmed into a prone position, while continuing to threaten officers with a taser.

 

 

 

Did officers follow policy in responding to call?