A Bexar County jury took only half an hour Monday to find Otis Tyrone McKane guilty of capital murder in the 2016 shooting death of San Antonio police Detective Benjamin Marconi.
Jurors left the courtroom about 5:20 p.m. and returned at 5:53 p.m. to announce the verdict. As Bexar County District Judge Ron Rangel accepted the verdict and bailiffs moved to handcuff McKane, he struck a bailiff and tried to flee the courtroom but was quickly detained.
The punishment phase was scheduled to begin Tuesday afternoon. The capital murder conviction makes McKane eligible for the death penalty.
“We are very pleased with the verdict,” Bexar County District Attorney Joe Gonzales said. “I know [Marconi’s] family is pleased and relieved.”
After prosecutors presented evidence over two weeks, McKane’s defense team called only one witness to testify, a police detective who reviewed Marconi’s phone records for the jury. In his closing argument, defense attorney Joel Perez stressed that witnesses contradicted themselves and the police department didn’t follow protocols.
“There’s things that you don’t know,” Perez told the jury Monday.
Marconi, 50, was fatally shot in the head on Nov. 20, 2016, as he sat in his patrol vehicle following a routine traffic stop outside Public Safety Headquarters.
Beyond trying to show that prosecutors have not proven that McKane killed the police officer, the defense team aimed to persuade the jury that a conviction on a lesser charge than capital murder would be more appropriate. In his instructions to the jury before it began deliberations, Rangel said a lesser charge of murder also could be considered.
But the jury’s swift deliberations indicated they weren’t swayed by the defense’s argument.
“This is not a ‘whodunnit,'” prosecutor Mario Del Prado said in his closing argument. “We know it was [McKane]. And we know who he shot.”
During Prado’s closing argument, prosecutors displayed a photo taken by a video camera inside Marconi’s vehicle moments before the fatal shooting: a left hand reaching into a police vehicle and holding a gun to the back of the uniformed officer’s head.
For the jury, one element of weighing a possible conviction on a capital murder charge is deciding whether McKane murdered a “peace officer or fireman who is acting in the lawful discharge of an official duty and who the person knows is a peace officer or fireman,” one of the criteria for capital murder under state law.
“What was officer Marconi doing at the precise moment of his death?” Perez said.
Perez argued that the detective was texting about personal matters on his phone. Marconi’s friends and family members shook their heads in disbelief in the gallery as Perez spoke.
“Talk about grasping for straws,” Prado said, noting that personal communications while on duty are not prohibited by the police department. “That’s a ridiculous argument.”
The prosecution rested its case Friday after calling dozens of witnesses over two weeks. The jury heard emotional testimony from the doctors who worked to save Marconi’s life after he was shot and others who identified McKane as the man who shot Marconi twice in the head.
Jurors also watched an hours-long video of McKane interrogated by police after his arrest, during which he said: “I wanted to make the police station feel the burn that I felt in my heart.”
Later in the interview, McKane apologizes to Marconi and his family.
After his arrest, McKane told reporters he was upset over a child custody dispute and “lashed out at somebody that didn’t deserve it.”
In his closing argument, Perez said SAPD investigators were highly motivated to bring in anyone fitting the initial description of the shooter because one of their own was killed. He questioned police tactics and interrogation techniques.
Perez asked the jury: “Did [McKane] really waive his rights” ahead of that interview? He suggested that McKane was emotionally vulnerable and raised the possibility that certain witness testimony was rewarded with positions within the police department.
Prosecutors dismissed Perez’s arguments as “distractions” and a “conspiracy theory.”
McKane did not testify.
“That’s an awkward thing,” defense attorney Daniel De La Garza acknowledged, but he reminded the jury that it’s not an admission of guilt and that the burden of proof — beyond a reasonable doubt — lies solely with the prosecution.
Just after 11:30 a.m. on the day he was killed, Marconi pulled over a vehicle outside police headquarters. Shortly after he returned to his police vehicle to write a citation, he was shot by a person who approached Marconi on foot from behind, security videos show. That person then sped away in a black vehicle that witnesses testified looked very much like McKane’s.
The defense’s sole witness was homicide Detective Mark Duke, who testified about text messages sent by Marconi just prior to the shooting. The content of the messages was not shared in open court, but Duke testified that the messages seemed to be of a personal nature.
“Without knowing the context, I believe it could be” personal, he said.
The last text message Marconi sent was at 11:30 a.m. He was shot at 11:38 a.m., according to security video.
“We’re not saying that officer Marconi was acting unlawfully,” Perez said. “We’re just saying he was not in a discharge of his official duty at the moment of his death.”
Marconi’s ticket book was photographed on the dashboard of his vehicle, he said, which implies the detective was looking at something else such as a cell phone when he was killed. But Marconi had two ticket books, prosecutor Tamara Strauch pointed out. The one Marconi was using was covered in his own blood.
The prosecution argued that even if Marconi was on his personal phone or a break, someone who murders an on-duty, uniformed officer is guilty of capital murder.
“Even if you take this evidence at its face, with all the inferences you can draw in [the defense’s] favor, you still don’t defeat the fact that all the objective evidence otherwise shows that this man [Marconi] was murdered while he was issuing a traffic citation,“ prosecutor Nathan Morey told Rangel in the 379th District Court.
The prosecution moved to exclude Marconi’s phone records, but Rangel sided with the defense to allow the jury — which was out of the room when the judge ruled — to see them.
This is the first death penalty case in Bexar County in more than five years.
