Tuesday, June 20, 2017

San Antonio's Strange Definition of “Transparency” When It Comes to Police Shootings

Posted By on Tue, Jun 20, 2017 at 5:04 PM

click to enlarge JAMES HEIMER
  • James Heimer

Back in March, on the eve of the trial over Marquise Jones’ 2014 death at the hands of an off-duty cop, the City of San Antonio backtracked on a significant point.

A critical detail in the case had always been a pistol police say they found some 25 feet from where Jones’ body collapsed on the pavement after San Antonio Police Department officer Robert Encina, who was working security at a northeast side Chacho’s, shot him in the back. It was key evidence, considering five out of seven eyewitnesses police interviewed on scene that February morning said they either didn’t see Jones with a gun or swore that he flat-out did not have one when he started running away from the restaurant drive-thru, where Encina was trying to detain someone over a drunken fender-bender.

After the shooting, investigators didn’t even attempt to test the gun for fingerprints or other forensic evidence, testifying later via deposition that a “patina” on the weapon made it unlikely to render prints so they just didn’t bother. Police eventually admitted they could never tie the gun to Jones. For the Jones family, the gun was another sign that SAPD’s investigation was so shoddy that it obscured the truth, either intentionally or due to incompetence. The federal magistrate who recommended the case go to trial (which is rare for lawsuits over officer-involved shootings) concluded that the investigation had left “a genuine factual dispute regarding whether Jones had a gun and whether he made any threatening gestures to justify the use of deadly force.”

But as City Manager Sheryl Sculley and City Attorney Andy Segovia revealed to city officials the day before jury selection began, SAPD had tested the gun — in January 2016, some two years after Encina killed Jones. City and police officials involved in the lawsuit claimed they didn’t know it had been tested. Not that the test really mattered much anyway. In their memo, Sculley and Segovia told city council and the mayor’s office that testing failed to turn up any prints that would tie the gun to Jones.

To Daryl Washington, the attorney for the Jones family who’s handled other high-profile police shootings across the state, it was yet another infuriating, late-in-the-game revelation that raised more questions than answers. Who ordered the test of a key piece of evidence two years after a fatal police shooting, after an internal investigation had already cleared the officer? Why didn’t anyone seem to know about it? When he took the stand at trial, SAPD Chief William McManus couldn’t answer even those basic questions. Shouldn’t SAPD have policies for handling evidence at the center of a lawsuit against the department — particularly when one of the main claims in said lawsuit is that police actively tried to coverup another officer’s mistake? “I suppose that would probably be a good idea, yeah,” was his response. (In fairness, McManus did seem to suffer from memory lapses on the stand.)

While Segovia and Sculley wrote that there was no evidence of “tampering or deliberate withholding of information” in the case, the city still hired an outside law firm to conduct an independent review of the city’s handling of evidence. Such a report was needed, they explained, “to ensure full transparency so that the parties involved, the City Council and the community have full confidence in the City’s handling of the investigative and litigation process.”

“Full transparency” evidently means making sure the public never sees that report. As Express-News writer Emilie Eaton reports this week, the city is now attempting to block hers and another's request to make that report public, citing “attorney-client privilege.”

The last minute-revelation that sparked that report was just one of the surprises in the Jones case that officials have struggled to explain.

Early on in the case, for instance, when Washington sought any surveillance video from the restaurant the morning of the shooting, attorneys for both Chacho’s and the city swore none exited. Which made it all the more astonishing when last year closed-circuit security footage surfaced showing the inside of the restaurant the morning of the shooting. Conveniently, the city and Bexar County District Attorney’s Office then used that footage to challenge the testimony of someone who came forward to say he witnessed the shooting, that Jones didn't have a gun, and that police never so much as asked for him to give a statement that morning. After swearing to that story in two affidavits and a court deposition, that witness, a Chacho's employee, folded when confronted by the DA's office with video evidence that nobody else even knew existed.

Similarly, officials can’t or won’t explain what happened to James Brantley, who says his car was parked right next to the one Jones ran from before Encina shot and killed him. Not only did police never take a statement from Brantley (who others confirmed seeing that morning), he testified on the stand that police even asked him to back his car out of the crime scene before telling him he could go. He was so close, he testified, that his ears were ringing after the gunfire and officers had to help him maneuver the vehicle around bullet casings.

Brantley also testified at trial that after he came forward with his story last year, signing an affidavit that he witnessed the shooting and that Jones didn’t have a gun, someone followed him to his car at night, handcuffed him and then put him in the back of what looked like an unmarked cruiser (he says there was a metal grate with a rifle rack that separated the back from front seats, what Brantley called a “police cage”). He says the man who detained him — wearing a blue shirt, slacks and boots — looked like a cop, but wouldn’t show him a badge or answer any of his questions. After stopping somewhere downtown to chat with another driver Brantley couldn’t see (he was handcuffed in the backseat the whole time, he says), the mystery cop drove Brantley home, no explanation.

After that, Brantley started dodging city attempts to depose him in the case. A judge eventually filed a warrant for his arrest to compel his testimony at trial. The DA’s office won’t say why they didn’t do the same thing to force his testimony in front of a grand jury.

The Jones family lost at trial in early April when a jury cleared Encina of liability in the shooting. While they’ve requested a new trial, it’s unclear when, if ever, many of the questions raised by the first one might be answered.

But when it comes to how police handled the gun they could never tie to Jones, it seems the city doesn’t want those questions answered publicly. In an appeal to the Texas Attorney General’s Office this month seeking to block release of the report on the matter, assistant city attorney James Kopp writes that, despite initial promises of “full transparency,” the report was never meant to be made public, “has not been shared with anyone outside the City, and was only viewed by a few persons within the City who are lawyers with the City Attorney’s office, or those City officials, who are clients of the City Attorney’s Office, who have supervisory authority over the Police Department.” (The City Attorney's office didn't return our calls for comment on Tuesday.)

The city’s argument for keeping the report secret leans on an understandable enough legal principle, “attorney-client privilege.” It’s just that the “client” in this instance is a taxpayer-funded institution that’s seeking to withhold information from the public.

That, apparently, is what now counts as "full transparency" when it comes to how San Antonio police investigate their own.


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