Proving officers’ guilt not easy task
Experts: Bodycams have improved odds
As ex-san Antonio police officer James Brennand awaits a possible trial, criminal justice experts say prosecutors likely will have a difficult time convicting the man who shot 17-year-old Erik Cantu of a crime.
And they said doing so would have been virtually impossible years ago, before body cameras became standard equipment for officers.
Sam Walker, a criminology and criminal justice professor at the University of Nebraska Omaha, said prosecutors generally must prove an officer’s guilt overwhelmingly to convince a jury — because many jurors are loath to put an officer in jail. It’s rare for an officer to be sentenced for actions committed on duty.
Notwithstanding such hurdles, the San Antonio Police Department, which fired Brennand shortly after the shooting, arrested him Oct. 11 on two counts of aggravated assault by a public servant. The next morning, he was released on $200,000 bail. A pretrial hearing had been set for this week but was postponed to an undetermined date.
About 10:45 p.m. Oct. 2, Bren
nand was responding to a disturbance at a Mcdonald’s in the 11700 block of Blanco when he observed Cantu’s car in the parking lot. Although Cantu was not involved in the disturbance, Brennand recognized the maroon BMW sedan as one that he’d tried to pull over the night before but that drove away.
He called for backup, but Brennand — a rookie who’d been on the force for only seven months — did not wait for other officers to arrive before he opened the driver-side door to Cantu’s car and ordered the teen to get out, body camera footage shows.
Instead of complying, Cantu drove backward for several feet and then turned toward the parking lot’s exit and drove away — as Brennand fired several shots into the car, striking Cantu. The wounded teen was found about a block away from the parking lot and taken to University Hospital, where he remained in critical condition and on a ventilator for several weeks.
He was recently discharged and is recovering at home.
In recent years, smartphones and body camera footage have helped bring police accused of wrongdoing to justice. In May 2020, former Minneapolis police officer Derek Chauvin was captured on smartphone video with his knee on the neck of George Floyd, who died during the incident. The video went viral, and Chauvin was convicted of murder in April 2021.
Without video recordings, said Adam Cortez, a criminal defense attorney in San Antonio, it’s hard to know whether Chauvin
or Brennand would have faced repercussions for their actions.
“If we didn’t have bodycam, James Brennand doesn’t get charged,” Cortez said. Officers “enjoy such immunity that it’s difficult to sue them, much less indict them for conduct during their course of duty.”
Law enforcement officials across the state are often able to avoid civil and criminal jeopardy under qualified immunity, a judicially created doctrine that places a higher burden for suing or prosecuting officers for actions committed while they’re carrying out their duties.
Shortly after Floyd’s death, multiple bills were introduced in Congress that sought to eliminate or reduce the scope of qualified immunity, but none became law.
Despite the heavy burden for prosecutors, Brennand is not the only former local law enforcement officer facing criminal proceedings.
In July 2020, a since-fired Bexar County sheriff’s deputy, Jean
Camacho-morales, was arrested for his alleged complicity in a violent attack on a jail inmate by at least six other inmates. To support Camacho-morales’ arrest, officials relied on video footage to demonstrate that he’d allegedly committed a crime.
Camacho-morales is awaiting trial on a charge of official oppression, having been indicted by a grand jury five months ago, online court records show.
At the time of the attack, Sheriff Javier Salazar said Camachomorales left the beaten man “to lay in a pool of his own blood for 30 minutes while the other inmates had time to clean up and destroy evidence.” He also allegedly misled investigators by naming as suspects inmates who had helped the victim.
Salazar alluded to civil unrest taking place nationwide in the wake of Floyd’s death, which occurred less than two months before Camacho-morales’ arrest.
“This is the kind of misconduct our country is reeling against today,” Salazar said, describing the ex-jailer’s actions as egregious and infuriating. “People like this is why millions of dollars in property damage has occurred around the country because of rioting and misconduct.”
The last time a local law enforcement officer was convicted of an aggravated assault followed a May 2009 arrest of a San Antonio police officer, according to a police crimes database maintained by Bowling Green State University.
Before smartphones with video capability and body cameras became prevalent, Cortez said, police accused of committing crimes while doing their jobs had an easier time convincing prosecutors that their actions hadn’t run afoul of the law.
“Without video footage, objective proof, the officer’s word carries so much weight,” Cortez said. “If this were 20, 25 years ago, James Brennand would not be under indictment, and it would’ve been just an unfortunate shooting of a young man.”
Cortez suggested one possible outcome of Brennand’s case: a deal in which he would plead guilty and surrender his law enforcement license to avoid a prison sentence.
Walker said it’s easier to prosecute officials charged with corruption than it is to prosecute officers, such as Brennand, for violent criminal offenses. But after Floyd’s murder, public opinion began to significantly turn against officers’ use of deadly force.
“We’re in the digital age of policing,” he said.
Still, without video, even eyewitness testimony might not be enough to convict an officer accused of committing a violent crime on the job, the professor said.