I would not normally post a second article in a continuing series a mere day after the last, but breaking events, as you’ll see gentle readers, demand it. As I’ve often observed in covering police issues, what should have been done but wasn’t, is often more informative than what was done. So it is with this case. NBC News reports:
County attorneys do not yet have enough evidence to file charges against a Minneapolis police officer who mistakenly shot and killed an Australian bride-to-be in July, according to the prosecutor handling the case.
We know this because of a surreptitious video of Freeman shot at a recent union event in Minneapolis. Whether Freeman was aware he was being recorded is unknown. His comments:
I’ve got to have the evidence, and I don’t have it yet.’
‘And let me just say, it’s not my fault. If it isn’t my fault, who didn’t do their jobs? … Investigators — and they don’t work for me. And they haven’t done their job.. [skip]
In a statement provided to NBC News, the county attorney’s office said: ‘We are working diligently on the case to complete the investigation as soon as possible. Beyond that, we cannot comment at this time.
All of this is not only confusing, but deeply unsettling, as I’ll explain shortly.
I don’t understand why this seems to be such, like, a hard thing,’ one of the activists in the video can be heard telling Freeman.
‘Fair question. I have to prove, beyond a reasonable doubt, the moment he shot the gun he feared for his life, and he used force because he thought he was gonna be killed. But he won’t answer my questions, because he doesn’t have to, OK? We all have Fifth Amendment rights, and I respect that.
Uh, no. Freeman has to proved Mohamed Noor didn’t have reason to fear for his life when he fired. Freeman is the prosecutor, not Noor’s attorney.
If you look at this, here’s a nice lady who hears something bad outside, she calls the cops, they don’t come, she calls again. They drive by in her alley, they don’t stop to talk with her, and she comes out in her jammies, and she’s killed by a cop. Sounds easy doesn’t it? But, it’s not just.. Can I prove the cop shot her? I could’ve done that the first day.
Mohamed Noor’s lawyer, Tom Plunkett, is also concerned, but may also be dancing for joy, saying Noor…
personally extends his continued condolences to her friends and family for their loss.’ [skip]
‘I am very concerned about what Mr. Freeman had to say about Officer Mohamed Noor. No lawyer wants their client placed under a Christmas tree as a present to a vocal segment of the community. … Investigators gather evidence, they don’t create it. That is their job. I am concerned by any supplemental investigation — especially if it is directly overseen and influenced by the County Attorney.
Plunkett may be happy because Freeman sounds like a man trying to give the defense issues they can use.
Minnesota Public Radio adds additional details from Freeman:
I’m not going to make it worse by just doing a knee-jerk charge and say let the jury decide. No, no. I have to know what happened before I can charge. And that’s when I’m doing my job. And thanks for having some patience.
Trust me. Nobody wants it done for Christmas more than me. That’s … that’s the big present I’d like to see under the Christmas tree. So thanks for listening.”
Freeman added that [Matthew] Harrity, Noor’s partner who was driving the squad car at the time of the shooting, didn’t provide enough information to bring charges.
Freeman explained that he must analyze the shooting extensively with physical evidence, along with use of force expert analysis of the incident, before coming to a decision to charge Noor.
Attorney Plunkett wasn’t impressed:
No lawyer wants their client placed under a Christmas tree as a present to a vocal segment of the community. That said, this case is about an officer that followed procedure and training,’ Plunkett said. ‘This lead to the death of a very fine person which is a horrible tragedy, but not a crime.
Attorney Bob Bennett, representing Ruszczyk’s family in Australia:
I hope that the BCA hasn’t so irretrievably damaged the evidence, or failed to recover evidence that should be reasonably expected to be recovered at the time that the crime occurred. And I use the term crime pointedly and intentionally.
Freeman noted that Noor wasn’t talking and Ms. Damond is deceased. ‘So, I can’t talk to her cuz she’s gone, and the other cop just gave us shit, okay?
Johnson’s commentary is particularly on point:
As I say, Freeman has sat on the BCA investigative file for three months. He could at any time have brought the case before a grand jury and compelled the testimony of Noor’s partner and any other witness except Noor. I don’t understand Freeman’s complaint. He should have brought the case to a grand jury and gathered whatever evidence he needed. His finger-pointing is pathetic.
By all means, take the link to Johnson’s article, which contains links to the video and a transcript of the video.
Freeman’s comments should be of great concern to anyone invested in the fair and competent administration of justice. Consider this from Update 11: The Law:
609.19 MURDER IN THE SECOND DEGREE.
Subdivision 1.Intentional murder; drive-by shootings.
Whoever does either of the following is guilty of murder in the second degree and may be sentenced to imprisonment for not more than 40 years:
(1) causes the death of a human being with intent to effect the death of that person or another, but without premeditation; or…
As Johnson observes, this statute would be chargeable given what is now known only through media sources. There are also several lower charges that would arguably be easier to prove, including Murder In The Third Degree and Manslaughter In The First and Second Degrees. Johnson’s assertion that Freeman could empanel a grand jury to obtain the evidence he claims not to have is also telling. Is Freeman looking for evidence necessary to properly do his job, or for someone to blame for not doing it?
These—and certainly other—questions remain, most foolishly raised by Freeman himself:
Is the BCA incompetent? As I noted in Update 7 and Update 7.2, their use of search warrants in the Damond case certainly raises that possibility. At the least, any evidence gathered under the crime scene warrant is certain to be attacked, probably successfully, by the defense—if there is a trial.
Could they have forgotten some other essential details? If so, it’s hard to imagine what they could be, unless the BCA is, in fact, incompetent. From what is known, there seem to be no mysteries in this case.
As I’ve also reported, several local Sheriff’s investigators have been assigned to the case. Why? What could they possibly be investigating? A case with this dearth of complexity could and should easily be wrapped up within a matter of weeks, not months. There are few witnesses, little physical evidence, and, compared to many murder investigations, likely little paperwork.
What evidence is Freeman lacking? From his comments, he seems to imply without a confession from Noor, or some undetermined, much more definitive statements from Noor’s partner that night, Officer Harrity, who gave Freeman “shit”–whatever that may or may not be–he is helpless to proceed. Freeman’s comment suggests Freeman’s statement is devoid of evidentiary value. This is difficult to imagine, though I suspect there’s not much more than Harrity hearing a noise and suddenly, Noor’s gun goes off in his face, stunning him.
Freeman boldly says he must know what happened before he proceeds, but this is not a complex case. The shooter is known. The circumstances are known. There is no doubt who shot Damond, when and where. The gun has been recovered, and presumably all related evidence and tests have been collected and completed. Officer Harrity has presumably explained what happened in sufficient detail to place the gun in Noor’s hand and the bullet in Damond’s body. Freeman’s statement seems to confirm that. If there is anything Harrity might be withholding, as Johnson noted, all Freeman need do is convene a grand jury and gather that evidence, or any other necessary evidence. I suspect, however, Harrity is not withholding anything.
All that might be left is why? Why did Noor shoot Damond? Whatever Noor might say at the moment will surely not vary from the “I feared for my life” narrative Plunkett has surely drilled into him, and is hoping Noor never has to say aloud.
Is Freeman actually unwilling to charge Noor without a confession, perhaps even video of the shooting filmed from multiple angles, with perfect lighting, and edited, Hollywood style, with an appropriately tear-provoking music track? Noor is obviously unwilling to speak, but in such cases, that’s a given. It would be nice to have his statement, and particularly nice to have a confession, but every prosecutor in similar circumstances knows he’s going to have to proceed without that kind of help, and the law doesn’t require it for charging or a conviction. To what would Noor confess? That he screwed up and shot Damond without justification? We don’t know that now? Freeman can’t make that case? What possible additional evidence could be floating out there that would get Freeman closer to that? Is Freeman trying to use a lack of the most perfect, unassailable evidence ever seen in a courtroom as an excuse to avoid charging Noor?
Is this case as politicized as it appears, as I explained in Update 13? Is Freeman doing his best to uphold a progressive narrative that must excuse Noor because he’s black, and a Somali immigrant? Is he helping the Minneapolis City Government and Police Department hide the possibility Noor was a diversity hire, a man manifestly unfit to be a police officer?
Does Freeman truly not know in this case, and any similar cases, conviction rests on his ability to convince a jury, beyond a reasonable doubt, that no truly reasonable police officer would have done what Noor did in that alley, that night? That would not seem to be such a difficult task. In fact, I’ll provide part of Freeman’s closing to the jury, no consulting fee, free of charge:
Ladies and gentlemen of the jury, this is a case about fear, fear and belief. Mohamed Noor would have you believe a call of a woman screaming was particularly dangerous. Police officers routinely handle this kind of non-emergency call, but he would have you believe it anyway.
He would have you believe he feared an ambush, but instead of parking a safe distance away and walking that alley, walking so he could see and hear clearly, walking so he could use cover and concealment and the night itself, walking so Officer Harrity and he could cover each other, he chose to turn off the lights of his patrol car and noisily and blindly cruise down that alley, making himself an obvious target, making it easy for his imaginary ambushers.
He would have you believe that hearing a noise, an unidentified noise that startled him, that scared him so badly he feared for his life, it was reasonable for him to shoot at mere movement, the first person he saw: Justine Damond.
He would have you believe it was inherently reasonable for him to shoot Justine Damond, without warning, across the body of his partner, inches from his face and chest. He would have you believe she, a woman in her pajamas, the person who called for him, a woman carrying only a cell phone, was putting his life in imminent jeopardy.
Mohamed Noor would have you believe all of this was the act of a reasonable, well-trained, experienced police officer. It was what any competent, professional police officer would have done were he in that alley, that night. If he’s right, God help us all.
God help us all, because this is not about reason, but fear, sheer, naked, stark, unreasonable, debilitating fear. It was the fear reasonable police officers are trained to control, the fear we expect them to control so they don’t shoot innocent, non-threatening citizens, citizens trying to report a possible crime, citizens in their pajamas, citizens only trying to speak with them, to direct them to where someone might need help. It is the fear we expect them to control, we need them to control, because if they don’t, people like Justine Damond die. People like our daughters, our wives, our mothers, die.
It was fear that caused Mohamed Noor to use bad tactics, to hide in his metal, rolling safe room. It was fear that caused Mohamed Noor to draw and clutch his gun. It was fear that so terrified him he couldn’t think. He could only jerk the trigger of the gun that should have been in his holster, to shoot at movement, or a shadow that turned out to be a human being. It was fear that caused him to shoot in the face of his partner. It was fear that killed Justine Damond, not reasonable fear born of professional, concrete observations, but unreasoning, stupefying, blind panic born of a lack of ability and temperament necessary to be a reasonable police officer, a police officer that would never have shot and killed Justine Damond, because he would have been in control of himself. Mohamed Noor wasn’t. Mohamed Noor wasn’t reasonable, and the proof of that is Justine Damond is dead. Is that what we think reasonable behavior in our police officers? Is that to be the standard?
I’ll let Mr. Freeman fill in the elements of whatever crime he charges, but of course, this is hypothetical. I doubt there will be charges. I hope I’m wrong, but the doubt remains.
Is the BCA incompetent? Is Freeman incompetent? Or are we working too hard to find answers when plain old political corruption is the most likely culprit? One thing is certain: what should be happening in this case isn’t, and what should not be happening, is. And five months after Damond was shot and died in a dark alley, Mike Freeman is still trying to find out what happened. He sounds like a man trying to figure out how to absolve, not charge, Noor without public outcry blowing up in his face.