BCA, Betsy Hodges, Bob Bennett, Bob Kroll, Fred Bruno, Garrity v New Jersey, grand jury, Justine Damond, Marsh Halberg, Matthew Harrity, Mayor Jacob Frey, Mike Freeman, Minneapolis PD, Mohamed Noor, Thomas Plunkett
The prosecutorial circus revolving around the killing of Justine Damond by Minneapolis Police Department Officer Mohamed Noor has jumped into a new ring. Prosecutor Mike Freeman has decided, more than six mouths after Damond died in an alley after being shot in the abdomen by Noor on July 15, 2017, to empanel a grand jury. Before discussing that Twilight Zone development, however, let’s consider the five most likely outcomes of this case.
Outcome 1: Freeman will, either on his own, or through the grand jury, charge Noor with some crime, likely the least serious possible charge. Freeman will present a competent case, and Noor will be convicted. The MPD will, with great reluctance, fire Noor, being careful to announce, however, this action in no way reflects on the brilliance and necessity of its vital diversity and inclusion outreach. Justine Damond will still be dead.
Outcome 2: Freeman will, either on his own, or through the grand jury, charge Noor with some crime, likely the least serious possible charge. Freeman will present a weak, even incompetent case, and Noor will be exonerated. See outcomes 3-5. Justine Damond will still be dead.
Outcome 3: Freeman will not charge Noor with any crime. He will announce that there was insufficient evidence to prove any crime beyond a reasonable doubt. He will blame the grand jury, the BCA, the Minneapolis PD, a banana peel on which he slipped, the sun getting in his eyes, racism, xenophobia, global warming and of course, Donald Trump. Mohamed Noor, as an inestimably valuably diverse member of the MPD, will face no internal discipline and will continue to work for the MPD. As is so often the case with dangerously incompetent officers, he will soon be promoted to remove him from actual contact with citizens and working cops. In the meantime, smarter and more professional officers will avoid him like the plague, but not a plague from Somalia, which is absolutely not a s***hole, and is rather a valuable source of the kind of diversity and inclusion so important to Minnesota. Justine Damond will still be dead.
Outcome 4: Freeman will not charge Noor with any crime. He will announce that there was insufficient evidence to prove any crime beyond a reasonable doubt. Noor will face internal discipline, will be found liable, and will be fired. Justine Damond will still be dead.
Outcome 5: Freeman will not charge Noor with any crime. He will announce that there was insufficient evidence to prove any crime beyond a reasonable doubt. Noor will face internal discipline, but will be exonerated, promotion to follow after a decent interval when the MPD thinks normals have forgotten about the whole thing. Whoever the mayor may be at the time will proudly proclaim that the system worked, and the diverse and inclusive policies of Minneapolis have been, once again, proved indispensable. Justine Damond will still be dead.
And now, submitted for your approval by way of The Minneapolis Star Tribune:
Hennepin County Attorney Mike Freeman is convening a grand jury to gather evidence in the 2017 shooting of Justine Ruszczyk Damond, but said he still will decide whether Minneapolis police officer Mohamed Noor will face charges in her death.
About 35 to 40 Minneapolis police officers have been subpoenaed to testify, according to Bob Kroll, president of the Minneapolis Police Federation, the union that represents the department’s rank-and-file officers. Among them was Matthew Harrity, Noor’s partner the night Damond was killed, and the only living witness aside from Noor. His attorney, Fred Bruno, said Harrity was served Wednesday.
‘It came as a surprise,’ Bruno said. He declined to say when Harrity will testify.
Actually, it’s strange indeed, but hardly surprising if Freeman is doing everything possible to keep his options open rather than seeking an indictment, and he says he is not.
Freeman’s decision comes after a pledge he made in 2016 to no longer use grand juries in officer-involved shootings. Hennepin County attorney’s office spokesman Chuck Laszewski maintained that Freeman ‘will continue the office’s two-year-old policy where he makes the decision on whether or not to bring charges in officer-involved shootings.
It will come of no surprise to learn Freeman’s office is refusing to say anything about this development, citing grand jury secrecy, which is likely a primary reason Freeman took this step. Grand juries can, of course, issue subpoenas and compel testimony, and witnesses may not have their attorneys present. The Fifth Amendment does apply, however. There is some confusion on whether Freeman can lawfully retain sole charging authority and use a grand jury only as an investigative tool. Normally, grand juries are empaneled to hear evidence for the purpose of making charging decisions, and prosecutors determine what evidence they hear, thus the pithy aphorism that a prosecutor can get a grand jury to indict a ham sandwich. Thomas Plunkett, Noor’s attorney, is remaining mute.
Bob Bennett, an attorney for Damond’s family, said they support Freeman’s move, saying police and other witnesses involved in the case have been uncooperative and ‘untruthful.’ He would not go into specifics.
‘I and the family are happy that the Hennepin County Attorney is using every means at their disposal to get people to cooperate in this investigation and suffer the penalties of perjury if they lie to the grand jury,’ Bennett said.
‘I question whether [witnesses] have been totally forthcoming or told the truth in whole,’ he added.
This is odd indeed.
Kroll said several officers declined voluntary interviews, but said none of them were at the scene.
‘They are calling in everyone that ever had anything to do with Officer Noor,’ Kroll said. ‘Totally irrelevant.”
If what Kroll says is accurate, and the numbers supposedly called amount ot a fishing expedition, he may be right. However
In a statement issued Wednesday, Minneapolis Mayor Jacob Frey said: “Arriving at the right decision requires the right facts and complete truth. No institution — including the City of Minneapolis — should stand in the way of uncovering that truth.
Perhaps the new Mayor is being honest, but Democrat-controlled city governments uniformly have no more credibility in protestations of honesty and transparency than the Obama Administration–most transparent in history–did. Twin Cities.com adds some additional information:
Marsh Halberg, a criminal defense attorney who is not connected to the case, said it could give Freeman a strategic advantage by requiring witnesses to testify under oath and lock down witness testimony in advance of a possible trial. Still, Halberg said, it’s unclear whether a grand jury can be used strictly for investigative purposes on the state level, and it’s not something he has seen in his 40-year career.
Lying before a grand jury can result in perjury charges. Halberg said Freeman could be using the grand jury as ‘a tactical reason to get evidence from people who are maybe refusing to testify.’ [skip]
The grand jury process has been criticized for its secrecy and because it rarely results in charges against officers.
Freeman was the first to break precedent with the standard practice of having a grand jury decide charges in police shootings after the November 2015 death of Jamar Clark. Freeman noted at the time of Clark’s death that grand juries had been used to consider police shootings in his county for more than 40 years and no officers had been indicted.
It’s difficult to know what is going on here. It’s an issue I addressed in Update 15: Political Calculations, in response to very strange public gaffes by Freeman:
…gather all evidence…’ And what evidence might that be? This is a simple case. All evidence was present at the scene, and despite the BCA’s unlawful warrant–to the extent the BCA can be trusted–nothing was found in Damond’s home. There is no question who shot Damond. The police have the gun. Any ballistics/powder residue and related tests have surely been done, though it’s hard to imagine of what evidentiary value they might be. There is no question who shot Damond and with what. The circumstances, positions and distances are known. They have a fellow police officer/witness who has been interviewed, one supposes more than once and in sufficient depth. An autopsy has been done (one hopes). There appears to be no additional evidence of any kind to discover, gather and process, and all evidence already collected must have been analyzed—to whatever degree that was necessary—months ago.
‘…follow every lead…’ What leads? All witnesses are known. Leads, in this context, refer to clues that might help the police identify the suspect or find some crucial piece of evidence. All the evidence has been found. There are only two known witnesses: the unidentified bicycle rider and Officer Matthew Harrity. Both have been identified and interviewed. There is no known reason for any of them to withhold evidence or lie. One might consider officers that were present at the scene, the involved dispatcher, etc. “leads” or witnesses, but there is no reason—none whatsoever—they would not have been interviewed, and if necessary, re-interviewed as many times as required, months ago. Of course, such people must also file reports on their actions relating to the case, and there is no known reason any of them might withhold evidence or lie. There is no whodunit. The case is solved. It was solved within minutes of Damond’s death.
‘Police cases…are very complex.’ Some are. This one is not. Complexity, apart from highly technical evidence analysis, is almost entirely in unknown factors, unknown clues and leads, missing witnesses, missing, undiscovered evidence, and even missing victims. None of that applies to this case. Who, what, when, where and how are known, analyzed and considered. Only why, why did Mohamed Noor shoot and kill Justine Damond, remains partially unknown…
If media accounts can be taken at face value, Freeman is calling forty of so police officers to testify. Noor and Harrity are two, add every other BCA agent and MPD officer that might have been at the scene, and that might make a total of twenty. What are the rest, who presumably have no direct knowledge of the case, going to say? Again, based on media accounts, Freeman has Noor and Harrity’s training records. If he speaks to everyone involved in the training of both officers, that might add up to forty–ish.
The problem is, more than six months have passed, and interviews of that kind can be handled within a month, perhaps two at the outside. So what’s going on?
Freeman and Bennett are insinuating some witnesses–which can presumably only be police officers–are either not cooperating, or are lying. Is there a blue wall of silence in the MPD? If so, the police union has been surprisingly quiet about everything relating to this case. Apart from a passing bicyclist who apparently saw and heard nothing other than Noor and Harrity trying to revive Damond, there are no other known non-police witnesses.
As I mentioned earlier, every law enforcement agency has regulations that require all officers to cooperate with investigations, particularly those in which they are involved. Can the public accept less? Can officers decide they just don’t feel like talking about their actions? The relevant case is Garrity v. New Jersey (1967), decided by the U.S. Supreme Court. More on that case, in layman’s terms, is available here, but what applies in the Damond case is police officers retain their Fifth Amendment right against self-incrimination. They can, if they choose, refuse to follow their agency’s rules, and say nothing about their official conduct, as Officer Noor has apparently chosen to do.
However, every agency also has rules that provide for punishment, up to termination, when officers refuse to complete reports, be interviewed, or otherwise refuse to do their jobs. Compelling officers to speak under threat of termination is a violation of the Fifth and Fourteenth Amendments, so if they cooperate, nothing they say may be used against them in a prosecution, but if they refuse to cooperate, they may be fired, and the public is justified in thinking them criminals.
This was a significant issue in the Erik Scott case in Las Vegas. The entirely corrupt police union arrogantly asserted that no officer, even those not directly involved, would cooperate with any investigation into the murder of Scott by three Metro officers. The equally corrupt and arrogant Metro would never discipline such officers for any reason.
Is that the case in Minneapolis? Are officers refusing to do their jobs to protect Mohamed Noor, and perhaps Matthew Harrity? And if there are considerable numbers of officers, this puts the leadership of the MPD in an uncomfortable place. Uphold the law and compel officers to speak under threat of termination, or do nothing and give the public the reasonable implication the MPD is hopelessly corrupt and willing to do anything to get away with the murder of an innocent woman.
If, however, officers are refusing to speak because they have cause to believe Freeman, or their own administrators and supervisors, are corrupt, they had better have solid, believable grounds for that belief, and a union far more aggressive and effective in defending them than the union has, to this point, been.
I fear, as I’ve often written, Freeman and the blatantly Democrat-controlled power structure of Minnesota and Minneapolis may be doing their best to exonerate Noor. The former mayor, Betsy Hodges, spent a great deal of time and effort praising Noor with standard democrat diversity, pristine immigrant, inclusive, minorities matter narratives. That they have vehemently denied Noor received any preferential treatment of any kind serves only to raise suspicions. Such people doth protest too much.
If that is the case, one would have expected them to exonerate Noor long ago and brazen it out, as such people usually do. However, this is a special case. The victim, likely of progressive policies as much as Noor’s bullet(s), is particularly sympathetic. Large segments of the population are up in arms about the case, most against the City and Noor, and tensions between the immigrant community–mostly Somali–and native Minnesotans are a factor. Public sympathy, throughout America, is running solidly in Damond’s favor. Trying to brazen it out, which might yet be their default approach, is going to be very difficult and noisy this time, particularly since an entire country–Australia–is also very upset, and very interested. There may be no effective messaging that can explain away this murder. Even crying “racism” may not prevail.
Another factor is the DOJ may no longer be entirely controlled by Democrats that think black people cannot commit crimes, nor can white people be discriminated against. Blatantly unjust actions in this case could bring the DOJ down on Minneapolis in a way that would have been impossible under Barack Obama.
And for the meantime, Justine Damond is still dead, and the show is on under the big top.
The SMM Justine Damond archive is here.