a reasonable police officer, Judge Ivy Bernhardson, Judge Kathryn Quaintance, Justine Damond, Matthew Harrity, Mohamed Noor, situational awareness, spooked police officers
I had planned, gentle readers, to allow the first week of the trial of Mohamed Noor for various accounts of murder to pass before commenting. I much prefer to deliver substance rather than speculation. However, there are some potentially disturbing developments.
In this particular trial, the Presiding Judge, Kathryn Quaintance, and the Chief Judge, Ivy Bernhardson, have greatly restricted not only the ability of citizens, but the media, to sit in on the proceedings. In addition, Judge Quaintance has barred any viewing, even by the press, of the officer’s body cam footage, ostensibly because it is revealing and disturbing. People wrongfully killed by the police tend to look that way. Surely the sight of a blood covered Justin Damond, clad only in pajamas, is disturbing, but it is the reality of this case. Every bit of evidence gathered by the police is, with some very few and specific exceptions, public property. Murder tends to be revealing and disturbing. What an alleged murderer did must be revealed to all lest we think violence antiseptic, far away, something that happens only to others. Such thinking encourages some to praise killers, drug dealers, child molesters and other monsters, and causes them to lobby for their release and political canonization.
Scott Johnson at Powerline agrees. Johnson and I have linked to each other’s work on this case. He has me at something of a disadvantage. As a Minnesota attorney, he knows the system, and the players involved. I have only media accounts, and my experience, upon which to draw.
Johnson has been trying to get one of the very few and coveted press seats in the courtroom, and has been given the runaround. One is tempted to see sinister intent in this, but it may be mere incompetence. Considering the rampantly socialist nature of Minneapolis and its self-imagined elite rulers, I tend toward the first possibility. Here’s Johnson’s letter to Judge Bernhardson:
Dear Judge Bernhardson: I am a class of ’79 U Law School alum, a year behind you. I practiced law for 35 years and undertook a second career writing online for the site Power Line (powerlineblog.com). I covered the 2016 federal terrorism case that went to trial against three of the ten charged defendants for our site and for the Weekly Standard, for example.
I wrote Spenser Bickett on March 14 expressing my interest in obtaining press credentials for the Noor trial. He instructed me to check the court’s Noor page for updates on the procedure to obtain a seat. I checked the page every day. I found the orders you co-signed with Judge Quaintance last week. I have read your orders several times. I never saw any procedure set forth. Now I understand I neglected to sign up for email distribution of an announcement that I did not know of and never saw.
I have been exchanging emails this morning with Spenser Bickett (and now Christopherson Kyle) trying to ascertain what happened. I have yet to get there. As far as I am concerned, I applied for a seat on March 14.
Do you have the patience to entertain my issues on this? Something is wrong here. It may be my understanding that is defective, but I don’t really think so. In a long career practicing law, I prided myself on promptly returning phone calls and following court rules/orders.
Thank you for your courtesies and consideration.
Scott W. Johnson
Johnson has not, as this is being written, heard from the Judge. One might be tempted to think Judge Quaintance—perhaps the Minneapolis political establishment—does not want a canny legal observer like Johnson in the courtroom. It appears she may prefer to let the public know only what she will allow the handpicked press to hear, which would put mere citizens in the position of relying on reliable leftist outlets like The Minneapolis Star-Tribune for information about the trial.
In my preview on Sunday, I also noted that I failed even to comprehend Judge Quaintaince’s order barring the press and the public from whatever bodycam coverage was introduced at trial. The so-called Media Coalition covering the trial (Star Tribune Media Company LLC, CBS Broadcasting Inc., Minnesota Public Radio, TEGNA Inc., and Fox/UTV Holdings, LLC) also fails to understand. Yesterday this Media Coaliton filed a general objection to the court order that interferes with First Amendment newsgathering and reporting activities in the case. The objection includes a memorandum of law.
That objection may be found here. Johnson contrasts the Noor Trial with an earlier, and very high profile, trial he covered, and finds Quaintance wanting:
Judge Davis welcomed the press (online sites included). He turned away no one. He authorized the press to use laptops in the courtroom so long as they did not distract the jury. Judges Bernhardson and Quaintance have banned all devices from the vicinity of the Noor trial courtroom.
Judge Davis handed out copies of key exhibits. He assured that those in attendance — press and public — were able to see all the evidence presented by video. At the end of the case he handed out the court’s jury instructions to the press.
Judge Davis enforced compliance with the court’s rules, but the rules afforded maximum liberality. He conveyed the attitude that the press is the public’s eyes and ears. That is what he believes.
For the Hennepin County District Court the Noor trial is amateur hour. To borrow another cliché, they are not ready for prime time. It’s not just me — see the objection/memorandum filed yesterday by the Media Coalition. Someone needs to say it. This is an embarrassment.
I fear it may be more than an embarrassment. It may be an attempt to exonerate Noor in a way that limits public knowledge and shields the Minneapolis political establishment from public scrutiny. As I’ve previously written—the SMM Damond case archive is here–Noor is a member of multiple protected socialist victim classes. He’s Black, a Muslim and a Somali immigrant. The former mayor effusively praised him, and regularly tongue bathed every Somali she could find. He was a police officer. The Left loves to hate the police, but Leftist protection resides on an ever-shifting scale, where Black people might occupy the top rung today, gay people the next, and illegal immigrants the next week. Even people as hated as the police can find themselves protected if it’s politically expedient. Former FBI Director James Comey was hated by the Left, loved, and now it’s impossible to keep up.
Most–presumably–of the court documents to date are available here. Sixteen of a pool of 75 jurors have already been ejected for unspecified bias, but they may finish seating a jury, and perhaps get opening statements in before the end of the week, but likely, little more, if anything. The arguments are predictable.
The Defense Argument: the Defense has the unenviable task of arguing that it was reasonable for Mohamed Noor to shoot Justine Damond. It’s difficult to imagine what additional evidence might exist to justify Noor’s actions. Surely we will learn additional details, but the essential facts seem clear. Noor and his partner, Matthew Harrity had no situational awareness. They assumed the call was just another routine noise complaint. Instead of getting out of their steel safe room and using proper tactics, they lazily rolled through the alley and relaxed too soon, stopping at the end of the alley to wait for a passing bicyclist, their minds already on their next call.
We don’t know if they actually heard or saw anything. Harrity is claiming he might have heard a voice, and perhaps heard something make a noise on his vehicle that “spooked” him. All Damond was carrying was a cell phone, but here is, to date, no indication he–or Noor–saw it. Harrity may, or may not, have seen movement, a shadow, or merely experienced some sort of vague impression of something or other near his his window. The next thing he knew, Noor’s handgun is exploding in his face, and Damond is dying.
Noor has not spoken, but it seems clear he was in an even worse position than Harrity to have seen or heard anything. He may have fired for no reason other than that he and Harrity were “spooked.” It’s a virtual certainty he had no idea at what he was shooting or why. It is highly unlikely he’ll testify.
The defense will try to claim police officers are everywhere in unusual danger. They are under attack, being ambushed. Noor and Harrity feared an ambush in that dark alley, and so were justified in shooting at anything they saw as a threat, or just shooting in general. Any reasonable police officer would do the same.
The Prosecution Argument: Oh gentle readers, would I love to prosecute this case. The facts are simple. Scared out of his mind without justification, Noor fired at movement, sound, or just the fevered imaginings of his panicky brain. He was so scared he fired in the face of his partner. Their tactics were abysmal. They had no situational awareness. Their laziness reveals they had no concern of an ambush. They were so unaware that if Damond did slap their vehicle to get their attention, it scared them senseless and caused Noor to shoot at the first thing he saw, or thought he saw, or just imagined in blind terror. If she didn’t, and Harrity is inventing a slap to try to excuse Noor, his shooting of Damond is even more egregious.
Final Thoughts: Is the fix in? Will the prosecution present a competent case? Does everyone know the outcome before the first word is spoken? Judge Quaintence’s actions to drastically limit public information, and perhaps to allow only tame journalists to have access to the trial, is ominous. It may be an ill considered, but honest attempt to protect Noor, or it may be less noble.
Unless there are significant facts about which we currently know nothing—and this is highly unlikely—an acquittal of Mohamed Noor will establish the precedent that poorly trained police officers, people fundamentally unsuited to the job, may shoot at anything–or nothing–for any reason, whenever they feel “spooked.” Such people are always spooked. If this is what a “reasonable police officer” is allowed to do, God help us all.
More as it develops.
Update, 04-04-19, 2115 CST: Scott Johnson at Powerline reports he has heard from Judge Ivy Bernhardson, who apologized, but did not offer Johnson an assigned press seat.
Roger Lake said:
Thank you for your update. Looking forward to more as information develops. Again, I wonder if the defense (or prosecution) has read your recent use of deadly force column.
I am fearful of an acquittal based on police are easily startled or police work is scary basis.
Nor will I be surprised at a hung jury. If so, do you think the prosecutor would retry the case?
Mike McDaniel said:
Dear Roger Lake:
That’s hard to say If they’re competent, they would. If they want it to go away to minimize political damage to the local Left, likely not. Of course, much depends on what happens in the trial. Police officers must have latitude in the use of force, but that doesn’t mean absolute immunity. There is no excuse for Noor.
Police officer is not a dangerous job, it is not ranked even in the top ten dangerous jobs (barely in the top fifty, depending upon year). I’ve mentioned this before in casual conversation with active and retired LEOs. The retired officers (>25 yrs service) were at least agreeable in part to my argument. The younger LEOs were adamant and that I’m just making it up. Of course, naturally it would be the longer one is in the field, the greater exposure to risk, in this case, being shot at. That the younger officers, with less time in service, are more adamant suggests that their opposition is emotion-driven. Either that or their older brethren just don’t give a damn as much. Even here is the suggestion that their’s is emotion-driven.
I have professionally engaged in those occupations which year after year rank 1, 2, and 3. ‘But they’re not shooting at you!’ Oh, and just how many times has any particular officer been shot at? Bureau of Labor statistics says very few; in fact, to be shot at is a rarity.
The point I wish to make is that the defense is really behind the eight ball if to call out how dangerous the job can be is to be part of their defense strategy.
It would be great if Noor is called to testify, especially since the judge has placed limits on what evidence can be admitted but that many of those limits are waived if Noor does testify. IANAL so I cannot say if the prohibitions on admitting evidence are onerous or unusual.
You think white people, a la the aftermath of the Rodney King verdict, will riot if he is acquitted? Of course not, its only a joke. It will be interesting to see how much a joke this trial becomes. It seems to be shaping up that way.
Keep up the good work.
Mike McDaniel said:
What you said, and thanks.
Glad you didn’t wait, Mike. Yup, if the “fix” isn’t in yet, it is most certainly being orchestrated. The nation needs to know this, So does the Attorney General. Not Kieth Ellison (Minn. AG)! Not Eric Holder! Bill Barr. Mohamed Noor will be acquited. And he will enjoy Double Jeopardy protections.
I hope Justine’s family bankrupts Minneapolis-St. Paul-Somalia out of existence in Civil Court. Noor can just go to hell when it’s his time.
James W Crawford said:
The theory that Officer Noor was overwhelmed by fear while driving down that dark ally and shot Ms Damond in a blind panic might be the most charitable interpretation of the evidence.
An alternative is that Officer Noor is a devout Muslim who believes that Sharia law should be imposed on America. As a result, the sight of Justine Damond wearing only her pajamas so offended his religious sensitivities that he executed her in a rage.
Mike McDaniel said:
Dear James W Crawford:
Possible, but there’s no evidence he was anything but completely unobservant and incompetent that night.
Even a reasonable person (including a well-trained police officer) might make a tragic mistake when forced to make a life-or-death decision in a split second.
But, in most “bad shootings” of which I am aware, there was usually more to it than just, “Duh, he had something in his hand, I thought it might be a gun, so I shot him,” or, “There was a shadow moving, so I fired at it.”
Tamir Rice drew a realistic-looking toy gun. Stephon Clark was caught in the act of burglary. He fled from the police. Then, when cornered, he went into a combat stance and drew an object, then pointed it as if aiming a handgun.
Even Dillon Taylor, Daniel Shaver, and Philando Castile reached toward their waistbands after being told not to do so.
With both Justine Damond and Erik Scott, though, there is no evidence that the victims made any moves that a competent law enforcement officer (or any reasonable person) would perceive as a threat. Either Noor is a hothead who panics every time someone breaks wind, or he is a religious fanatic who executed a woman for the “crime” of going outdoors without a hijab. Either way, the mayor and police department should be liable for hiring an obviously unqualified applicant.
If Noor is acquitted, it will not be blank check for all police officers to shoot first and ask questions later. White cops will still be accountable, and even innocent white officers will be fired and may even be prosecuted after justified shootings. It will be a signal, though, that Muslims (whether police officers, private citizens, or illegal aliens) are above the law, and have a license to kill.
The MSM have paid little or no attention to this incident. If the races of the killer and victim had been reversed, it would be the top story on CNN and MSNBC seven days a week. Trump would be blamed for the “toxic environment” that encouraged the killer. And Minneapolis would have burned to the ground in a riot by now.
Mike McDaniel said:
Exactly. That’s why I’m so concerned Noor may walk. There is no excuse for his murder of Damond.
That is also a concern of mine. But even moreso, the fact that it has pretty much disappeared from the media while it has played itself out in the courts is bothersome. Normally, if this had been a reversal of racial components, the media would have been all over this like a dog on a bone. So you can pretty much tell what is going to happen to this story no matter the outcome. And that is a bad thing, simply because if the case goes south for the prosecution, then there will be no public outcry simply because the public will be uninformed. And if the proper verdict is returned, then the media will frame the results in such a way to make it look like a kangaroo court, and we will have a long hot summer like in the LA riots of the 60’s.
Thank you for keeping this at the forefront, though. I would not have even been aware of it had it not been for you keeping it out front. I was aware of the case when it happened, of course, and I knew then that it was a bad shooting. But then it simply fell off the map. And I knew the reasons why, as most people who follow any of this type of thing did.
I think that a large part of the problem with police shootings that are bad now days is the fact that our police forces tend to recruit from the military. Which sounds like a good idea, save for the fact that the military has a much different set of rules of engagement than the police does. And the transition from the militaries rules of engagement to the police’s rules of engagement often times can be difficult for individuals. I am not saying that it can’t be done, but that it can take more training than is perhaps allotted.
A former soldier, used to reacting on a battlefield to shooting first and asking questions later, might find it hard to overcome that mindset on the streets of Boulder, Colorado, or Boise, Idaho. And I of course am taking both of those examples to their extremes, but you get my point. At times, when faced with a situation where on a battlefield it would call for deadly force, on the street it might call for further discussion or slightly longer hesitation or talk before beginning to employ deadly force. And while no one can blame someone for reacting with deadly force in defense of their life, at times on the field of battle, previous experience has taught soldiers to react more quickly than perhaps they might against civilians.
In any event, in this particular case, there seems to be little doubt from all the evidence that the officer is guilty. Now all that remains is for him to be proven guilty.
Mike McDaniel said:
Thanks, and you’re most welcome. I follow such cases because if we’re to honor and support the police, we have to be sure they’re worth that honor and support. When they do it right, I absolutely support them, and when they do it wrong, we have the Damond case.
I would quibble about your characterization of former military. The military inculcates a great many personal qualities that are essential and very valuable to police officers. Even combat soldiers have to know when to shoot and when not to shoot. If unfit people make their way onto a police force, that’s the fault of those that hired them, though the innocent tend to suffer for that kind of failing. In many respects, I’m more worried about people brought up on first person shooter video games. There is evidence to suggest in so doing, they wire themselves to shoot fast, first and always. Such people without the discipline of the military are, I suspect, even more potentially dangerous.
And then we have Noor. I doubt it will be allowed in court, but even the small amount about his training that has made the news suggests he was indeed unfit, temperamentally, and culturally to be a police officer. In some sense, potentially the worst of all worlds.
Mike, I just realized something. Was Noor sitting with his sidearm in his lap? How easy is it to unholster from a seated position? Allow for all the other gear normally found on a police officer’s belt, etc.
My speculation is that Noor was sitting with his firearm already in his hand. This would suggest two things; that he thought that danger did exist in the alley, and that he had no intention of exiting the squad car.
On the other hand, if his firearm was holstered up to the moment that Damond *may* have slapped the car, is Noor that much of a quick draw? Just how many seconds from Damond arriving to the squad car to Noor shooting her? Noor would have had to unholster, draw, aim, squeeze the trigger in what I speculate to be a few seconds. That seems improbable. Therefore, I am going with my speculation that Noor already had his firearm at the ready.
That means he expected trouble in a dangerous environment. Yet he wasn’t about to exit the car. How normal is that in police work?
Mike McDaniel said:
Good questions. I’ll address this in some detail in the next installment. The latest news is jury selection will continue into next week. Opening statements probably won’t begin until Monday afternoon, at the earliest, and probably not until Tuesday.
Thank you for the update.
I used to be a regular reader of the (local for me) Powerline Blog way back when. I stopped when I realized they espoused a more corporate globalist GOP than my view. I will have to restart following it during the trial.
There are larger courtrooms available, and other options like closed circuit TV. Hopefully the media lawsuits will improve access.
I remember the George Zimmerman trial. The media reports were vastly different than what I saw on Legal Insurrection blog and You Tube coverage of the actual courtroom. Andrew Branca explained a lot that I did not understand at first. The media coverage was completely different. Almost like the reporters saw a different trial?
Mike McDaniel said:
Good points. I was able to cover the Zimmerman case so well because I was able to watch the entire trial. News reports at the time were so different than the reality I reported, it was indeed as though they were watching some other trial. Of course, their fidelity is to the narrative, not to the truth. This will be very much on display in the Noor trial.
James W Crawford said:
If the prosecution is smart enough to avail itself of the FBI publications LAW ENFORCEMENT OFFICERS KILLED AND ASSAULTED that documents the decades long decline in the number of police officers killed, they can destroy the defense claim that Noor’s apparent paranoia was justified.
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For privacy / nudity of the victim, why couldn’t the judge require a minimal pixelated version for public release of the non-pixelated video used in the trial?
Just blur the boob / nipple parts, any MSM would have to do so for broadcast under FCC rules anyway, a police IT / computer graphics person could do so in an hour, just need the judge to order / request it from the DA.
Mike McDaniel said:
The judge has now admitted she had no basis in law to suppress the video. The public will be able to see it.