click to enlarge James Heimer

In federal court this week, lawyers for the family of a man shot and killed by an off-duty cop are trying to convince a jury that San Antonio Police Department officers attempted to cover up what really happened the morning of February 28, 2014.That’s when a fender-bender at a northeast side Chacho’s led to an altercation between Robert Encina, an off-duty SAPD officer working security at the restaurant, and the drunk driver of a green Cadillac that pulled into the drive-thru lane. Encina fired eight bullets at Marquise Jones, a passenger in the car who jumped out and started to run toward the street (Jones died from a bullet to the back).The officer later told investigators Jones had a gun in his hand and “looked back over his shoulder at me” before he fired.On Thursday, San Antonio Police Chief William McManus took the stand to defend his department’s investigation into Jones’ death – which critics have argued was so shaky that it underscores the need for independent investigations of police shootings On the stand, McManus walked back previous criticism he’d made of his detectives’ handling of the case just months earlier in a court deposition, saying his opinion on the case had evolved. He defended how the department disciplines its own, while also admitting that in certain cases his “hands are tied” by disciplinary rules dictated by a police union contract with the city that McManus himself has advocated changing. He claimed he’d never once heard of cops covering up mistakes for each other, despite disciplinary records showing he’s suspended officers for doing just that.It was at times evasive and vague testimony, often raising more questions than it answered. Basically, it was exactly what you’d expect from the Marquise Jones case at this point.The reason the whole Marquise-Jones-was-a-coverup argument has even made it in front of a jury is because, as a federal magistrate wrote in a report recommending the case go to trial, “there is a genuine factual dispute regarding whether Jones had a gun and whether he made any threatening gestures to justify the use of deadly force.” That’s because, apart from officer Encina, only one other witness who gave a statement to police that morning said they saw Jones with a gun. In total, five other eyewitnesses signed statements that either don’t mention seeing a gun or say outright that Jones did not have one.That is just one of the critical details Daryl Washington, the attorney for the Jones family, says was missing from the so-called “prosecution guide” SAPD gave the Bexar County District Attorney’s Office after its investigation into the shooting, a report the DA’s office uses as the basis for any possible criminal case they might present to a grand jury. Retired Austin police detective Jerry Staton, the expert Washington hired to review SAPD’s investigation into the shooting, testified in court Thursday that the case SAPD forwarded to the DA’s office “leaves out some extremely vital information.” Staton concluded that, more likely than not, multiple SAPD officers “tried to conceal evidence in this investigation that would have contradicted Encina’s version of events.”In court, Staton added that he was genuinely troubled by that conclusion, saying, “It’s why I couldn’t sleep last night.”Staton also called it “extremely troubling” that investigators overlooked two witnesses who later came forward to say they saw the shooting, that Jones didn’t have a gun, and that police never so much as asked for them for statements. One of those witnesses, Lamar English, signed two affidavits and gave a deposition repeating the story until he was confronted by DA investigators who mysteriously turned up security camera footage inside the restaurant the morning of the shooting. Officials now maintain that video – which Chacho’s had previously said in court did not exist – discredits English’s account, something Washington vehemently denies. Regardless, English changed his story once the DA’s office got to him.Not so with James Brantely, who says he was in his car, in the drive-thru lane next to the Cadillac Jones was sitting in the morning of the shooting. Brantley claims that after the shooting, Encina walked up to him and repeatedly asked, “You seen the gun, right?” When Brantley told him no, Encina made a strange face and walked off. Brantley testified that minutes later, once more police had arrived on scene, another officer asked him to move his car out of the drive-thru lane. He was so close to the shooting the cop had to help him maneuver the car around bullet casings.Nobody on scene bothered to get Brantley’s statement. ( As we wrote earlier this week , Brantley also claims that sometime after he came forward, a mystery man who looked like a cop stopped him, cuffed his hands behind his back, put him in the back of what looked like an unmarked cruiser and drove him around downtown without explanation.)On the stand Thursday, Chief McManus refused to criticize how his officers handled Brantley at the scene, saying it’s not clear police “necessarily” knew the man they were backing out of a crime scene was a witness.McManus also struggled to address another critical question in the Jones case: What happened to the gun police say they found 15-30 feet away from his body? For years, SAPD said the gun wasn’t tested for fingerprints or any other physical evidence. When pressed in court depositions, the department’s own experts admitted they hadn’t attempted to gather any evidence on the gun because of a “patina” that made it unlikely to render prints.On Thursday, McManus admitted police could never with certainty tie the gun to Jones. He also admitted he has no idea why the department just found out the gun actually was tested, unsuccessfully, for prints back in January 2016 ( a revelation the city made just a week before trial ). He couldn’t say why police would test a piece of evidence nearly two years after the fact. Aren’t there any procedures for evidence involved in city litigation? “I suppose that would probably be a good idea, yeah,” was the chief’s response on the stand.McManus eventually pointed to his department’s record of disciplining officers as evidence the kind of cover-up the Jones family has alleged could not happen in his department. And then, when asked if he has final say on department disciplinary matters, gave what has become a pretty standard McManus non-answer: “Yes and no, if I can be so vague.”That’s when an attorney for the Jones family confronted McManus with statements he’d made in his deposition last year that he sometimes felt union pressure in disciplinary cases. By the time McManus took the stand at trial, his thinking had evolved on that one, too.“On reflecting back, I wouldn’t call it pressure,” the chief said. He acknowledged that someone from the San Antonio Police Officers Association calls him every time he’s considering disciplining a cop, adding, “If you call that being pressured, then I guess you could say they’re trying to pressure me.” McManus was asked about whether last year’s overwhelming no-confidence vote by union members – a vote in which they explicitly blamed the chief for “poisoning the community” against an office r he’d briefly considered terminating for shooting and killing an unarmed man – constituted union pressure over disciplinary matters. McManus was again dismissive, insisting the vote had nothing to do with officer discipline.Eventually, McManus was asked about a perk in the union’s contract that allows officers to basically avoid suspensions by paying them off with unused vacation or holiday time. It’s why Encina, the officer who shot Jones, didn’t actually miss any work when, in 2010, he was handed a 45-day suspension for a drunken tirade through a northwest side restaurant where he sometimes worked security. According to court records, Encina harassed kitchen staff, hurled insults and obscenities at customers, and even antagonized one group of black customers, calling himself a “baller” from the East Side. Some of his off-duty buddies had to force him outside the restaurant. Attorneys for the Jones family have seized on the incident as sign Encina was a problem officer the department failed to properly supervise and discipline.McManus said he's in the past pushed for changing that vacation-swap rule so he gets to decide whether that’s allowed on a case-by-case basis. He’s also asked for the city to change the part of its contract with the union that takes final hiring and firing decisions out of his hands, a provision under which officers can appeal their suspension or termination with an arbitrator, who has final say. Probably the most extreme example of what that policy can lead to is case of Michael Garza, who was drinking on duty with his girlfriend in 2012 when her ex showed up and started shooting at them. Despite his girlfriend being wounded, department disciplinary records state Garza chased after the ex-boyfriend for some two miles and shot him in the back as he tried to run inside his northwest side home. In addition to firing him, McManus even filed a murder charge against Garza.Instead, Garza was cleared by a grand jury and eventually got his job back through arbitration. SAPD has said at least five fired officers like him have successfully appealed to get their jobs back in recent years. On the stand, a lawyer for the Jones family asked McManus whether his department suffered from a culture in which officers eschew supervision. “It’s been said that they would prefer to be left alone, but I don’t know if there’s a culture of it,” was his response. Some might argue that culture is baked into the department’s union contract and disciplinary structure.Ultimately, McManus finished his testimony saying he knows with certainty that coverups aren’t happening on his watch because he pays “very close attention” to such matters. “I can sit here today and tell you I know that that is not going on.” In fact, he said that in his decades of law enforcement experience, he couldn’t recall ever even seeing an officer attempt to cover something up.Which is strange, considering it was McManus' name on the paperwork suspending officer Gary Nel for 40 days last year after the department discovered he’d arrested an officer while out on DWI patrol one night, only to let him go once he found out he was a fellow cop. Suspension records also show that last year McManus suspended officer Hector Gallardo for 10 days after he was caught filing bogus charges against someone because, in Gallardo’s words, "I figured we’d fuck him over so he doesn’t talk shit or call and complain on us.”Then there’s the case of Sgt. Michael Garcia, who was supposed to be investigating a fellow cop who got into a fight while off-duty. According to his 2014 suspension records, Garcia told fellow officers that, “Basically, what we are trying to do is cover the officer,” and that police would probably need to do "extra" work to clear the case at hand since the other guy in the fight "looked like he had the shit kicked out of him."McManus' name appears on Garcia's paperwork suspending him for three days. Two years before that, after a police sergeant in his underwear smashed his city-issued pickup truck into a highway guardrail north of downtown, McManus went public accusing the six officers who responded of trying to cover up the sergeant’s crash. Still, this was McManus’ testimony Thursday when asked about officers covering for each other: “Looking back in my 42 years as a police officer, I can’t remember a case where an officer has covered up and it has come to light in a disciplinary hearing that I have been involved in.”So much for paying “very close attention.”