Refugio and Elvira Nieto walking towards the courthouse on Tuesday. Photo by Joe Rivano Barros.

See Mission Local’s full coverage of the Alex Nieto shooting here.

In the last day of arguments in the Alex Nieto trial, counsel for the Nieto family said key pieces of physical evidence bolstered their argument that Nieto never pointed a taser at the four San Francisco police officers who shot and killed him in Bernal Heights Park in March 2014.

City attorneys, on the other hand, said the physical evidence was on their side and argued that the officers used adequate force against a man they believed to be armed with a pistol.

An eight-person jury will decide whether to award Nieto’s family damages for civil rights violations, depending on whether the officers are found to have used excessive force or not.

Each side has exposed flaws in the other’s witness testimony, and both said during closing statements on Wednesday that the scant physical evidence supports their case.

The jury will have to weigh two sets of wholly contradictory testimony. All four officers involved say that Nieto pointed what they took to be a gun at them. Nieto carried a taser for his work as a security guard, but an eyewitness — Antonio Theodore — testified last week that his hands were pocketed during the shooting.

That testimony forms the backbone of the argument that officers used excessive force when confronting Nieto that day in March.

“What brings us here today are 59 shots, 59 shots that were fired during the course of a one-sided firefight, 59 shots that were fired on March 21, 2014, by these four defendant officers,” said Adante Pointer, the attorney representing Nieto’s family.

But on Wednesday, Margaret Baumgartner, a deputy city attorney representing the police, reminded the jury that Theodore admitted last week that heavy drinking since the incident affects his ability to recall specific details.

“He is simply not a credible witness,” she said.

Pointer sought to save his key witness during closing statements, saying Theodore showed “great bravery” for coming forward with his testimony. Theodore testified last week that he felt threatened by the police and waited more than a year to come forward with his version.

“What motive does Mr. Theodore have to come here to be subjected to what he himself said was badgering?” Pointer asked.

He also questioned the decision by officers to continue firing on Nieto after he hit the ground. Officers testified last week that Nieto aimed his taser at them from a “prone tactical” position on the ground, and expert testimony from a medical examiner showed that some of Nieto’s 14 gunshot wounds were sustained while he was lying face-down on the ground.

“How does someone not named Clark Kent survive all of these shots and still manage to hold his taser with both hands and point it at the officers?” Pointer asked.

Baumgartner maintained that all four officers responded as warranted to a man they believed was armed.

“On March 21, 2014, Sergeant Jason Sawyer used reasonable force against a man with a gun. He used the amount of force that he thought was necessary so he could go home at the end of the day to his wife and children,” she said, repeating the same for each of the four officers.

Pointer also noted that the safety on Nieto’s taser was on after the shooting, according to pictures shown at trial, which would have prevented it from firing.

Baumgartner admitted she did not know why the safety on Nieto’s taser was on after the shooting, but said its lever could have been switched after being kicked out of Nieto’s hand or that Nieto himself could have turned it after being shot.

“We don’t know what happened, and how this taser was turned off, but we do know it was on during the period of time that these officers were firing at Mr. Nieto,” she said.

Pointer also said a bone found in Nieto’s jacket pocket corroborates Theodore’s testimony. He has repeatedly stated that Nieto would have had to be a magician to move the bone into his pocket.

“Mr. Nieto might be a lot of things to a lot of people, but nobody has come in here and told you that he was Harry Houdini,” Pointer said during closing statements.

Baumgartner said the bone fragment could have slipped in to Nieto’s pocket.

“The bone fragment could’ve happened anywhere from the time of the shooting to the autopsy,” she said outside the courthouse.

She also added that wires from Nieto’s taser were found 13-14 feet from his body after the shooting and that timestamps downloaded from the taser — and analyzed by a technician from Taser International — match three trigger-pulls to within seconds of the shooting. Baumgartner said that was evidence that Nieto fired at officers.

That sequence has been disputed by Nieto’s lawyers because it required a recalculation by Taser International that Pointer said was not scientifically rigorous.

The corrected time logs then showed that the first trigger-pull on Nieto’s taser occurred just two seconds after officers opened fire, Baumgartner showed on Wednesday.

Deliberations by the jury will resume at 9 a.m. on Thursday and could last hours or days. Jurors are instructed to first decide whether officers used excessive force when confronting Nieto before going on to decide on further charges and specify damages.

A quick decision will likely mean jurors could not move past that first question and would be good news for the city, which would otherwise be on the hook for possibly millions in damages.

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