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Don Damond on the witness stand

Opening statements in a criminal trial are an opportunity for the prosecution and defense to preview their cases, what they claim the evidence will prove, though they present no evidence.  The lawyers are not allowed to testify, or to offer interpretations, though defense attorneys will often try to do just that, as was the case in the first day of the Mohamed Noor trial.

Damond, her fiance Don,(center) and his son, Zach

The SMM Justine Damond case archive is available here.  This update will focus on previously unknown evidence outlined in the opening statements, particularly those of the prosecutor, Patrick Lofton.  It will also suggest the path the trial will almost certainly take.  While I’ll use the occasional quote, I’ll summarize, drawing from articles from three sources: Scott Johnson at Powerline—he’s attending the trail and providing daily updates–The Minneapolis Star-Tribune, and local station KARE.Com.  

When Noor, and his partner Officer Matthew Harrity, who was driving, arrived in the alley behind Damond’s home, she was on the phone with her fiance, Don Damond.  She told him “Oh, the police are here,” and ended the call. Only 79 seconds later, she was dying in the alley.  Her last words, uttered to Harrity, who must have been having the mother of all “oh shit!” moments–were “I’m dying.”  A major artery had been hit; she was right and death came very quickly.

The Thump:  Regular readers will recall Harrity has said he and Noor was “spooked” by a loud “thump” on their vehicle—a Ford Explorer—and the sudden appearance of Damond at Harrity’s open driver’s side window. Harrity did not see a woman, but perhaps nothing more than movement, a shadow, or an impression.  We now know the “thump” was in invention of the investigation:

Lofton said Harrity gave a quick statement to responding officers, then another statement to the sergeant who arrived, saying they were spooked, but never saying that Ruszczyk tapped the car.

Lofton said that statement came as a BCA investigator later speculated. According to Lofton, as investigators spoke at the scene, one said, ‘Something must have spooked them, and the other said, “Maybe something came into contact with the squad.’ The first then replied, ‘Maybe she slapped the squad.’ Lofton said Harrity didn’t mention a ‘thump’ until three days later in a BCA interview.

Lofton said Harrity told investigators at the scene, ‘She just came up out of nowhere. We both got spooked, and I had my gun out. I didn’t fire. Then Officer Noor fired.

Judge Catherine Quaintance

Here we see, gentle readers, why competent investigators do not suggest testimony, but only ask questions designed to elicit the complete and uninfluenced story. It now seems, and I suspect will be found to be true, there was no slap on the vehicle.  Harrity made it up, and Noor gladly adopted it, later, at the suggestion of others.  Were the other officers merely trying to suggest a plausible lie to help Harrity and Noor, or were they just incompetent?  This is a significant development, as it makes Noor’s shooting of Damond far more difficult to characterize as reasonable.

Noor’s partner, Matthew Harrity…will be a crucial witness at trial. According to Lofton, he saw ‘a silhouette’ to his left. He couldn’t tell what it was. He then heard ‘a pop’ and saw a woman in her pajamas with hands cradling her abdomen. It turned out to be Justine.

“A silhouette?!”  Noor likely saw even less.  In fact, it’s likely both saw even less than a silhouette, rationalizing that only later.  They both almost certainly reacted only to movement glimpsed in peripheral vision.  At night, the eye is drawn to movement.  The “pop” was Noor’s handgun going off in Harrity’s face.  Claiming it was a silhouette is an admission neither of them had any idea what it was or whether it represented a threat of any kind.

Minneapolis police sergeant Jan Barnette turned up and took charge of the scene. Burnette asked Harrity what happened. ‘She came up out of nowhere,’ Harrity said. ‘Noor pulled his gun out and fired.

Harrity only learned the silhouette was a “she” after she lay dying. The prosecution has hired two police experts at $47,000.00 thus far.  Presumably, their testimony on the proper use of force will not be helpful to Noor, and if they know anything about police work and the law, it cannot be.

I’ve also seen a media account–I’m not yet giving it too much credence–suggesting that Damond’s bullet wound was below the sill of Harrity’s door.  If this is so, particularly if the coroner’s report indicates the round struck Damond on a downward angle, this is deadly for Noor.  It could mean that rather than simply extending his arm and shooting, he had to rise up in his seat, lift his shooting arm high, and shoot downward in order to clear the doorsill.  This would take time and some degree of conscious calculation.  Otherwise, his shot would have struck Damond in the chest, or might have hit the door, and perhaps, Justine Damond would be alive today.

Defense attorney Peter Wold is, as expected, sticking to the intersectionality/diversty narrative, painting Noor as something of a Somali police saint. According to him, Noor is “heartbroken.” Wold also claimed Noor had “ambush training.”  As expected, he’s going to claim Noor and Harrity were completely reasonable in expecting an imminent ambush in that alley, and because of that expectation, it was also reasonable for Noor to shoot at a mere silhouette–or less (which is probably the reality)–to protect himself and Harrity.  Wold again:

A few ‘split seconds’ are what the case is all about. Just before Noor shot Justine, Harrity exclaimed ‘Oh, Jesus!’ and fumbled for his gun. Harrity appeared in terror. Noor had his weapon drawn and shot the silhouette to protect his partner and himself. This was ‘a perfect storm with tragic consequences.’ It represented ‘a classic ambush scenario.’ That is what crossed Harrity’s mind.

If Harrity did indeed say that, it indicates only that they were both entirely unaware of their surroundings because they were using terrible tactics, and did not, for a moment, expect an ambush.  If they did, how were they so easily surprised–and terrified–by a barefoot woman in pajamas that posed no threat to anyone?

Unless the defense thinks it can rely on the jury being so leftist they’d exonerate Noor simply because he’s, black Muslim and a Somali immigrant–high on the intersectionality/diversity ladder–he will have to testify.

Don and Justine Damond

This, on Don Damond’s testimony, is immensely sad:

Don held it together until the end of direct examination. He broke down as he recalled the events of the evening of July 15, 2017 and the early morning of the following day. He recalled each of the phone calls he and Justine exchanged that evening and read the follow-up text messages as well.

Don urged Justine to call the police. When she told him the police had arrived on the scene, he was confident all would be will.

This, which includes Scott Johnson’s informed opinion, is infuriating:

In his cross-examination Peter Wold asked about the physical training that Don and Justine had undertaken before their marriage. Justine worked out four or five times a week. She was in top physical shape. One component of her exercise involved kickbox training. Don stated that this was an exercise regimen, not martial arts training. I thought this line of questions reeked of desperation.

Many defense lawyers are infamous for being utterly shameless.  Wold apparently intends to portray Justine Damond as a martial arts expert, and therefore, a deadly threat to Noor and Harrity.  Or he merely wanted to get it into the jury’s minds in case they need just one more excuse to acquit.  More likely, he’s going to be continually fishing for a hung jury and a mistrial.

Since Damond’s death, there has been a great deal of loose talk suggesting the officers believed were responding to a rape.  As I’ve previously reported, this isn’t remotely true.  They knew only that they were answering a noise complaint, specifying only a woman screaming somewhere behind Damond’s address.  Even Wold characterized it only as “a woman in distress.”  Noor and Harrity didn’t know even that.  Absent hard contradictory testimony, they were responding to an entirely routine call, and everything they did indicates that’s precisely how they handled it.  Wold again:

Wold said Noor ‘sees his friend and partner turning toward the sound, then he sees him jump and yell, ‘Oh Jesus!’ He’s never seen his partner this distressed.’

Noor “rightfully perceived their lives were in immediate danger,’ Wold said. ‘Noor can’t see what’s behind his partner where the noise is coming. All he sees is Harrity look back, scream, struggle to unholster his gun. Noor drew his gun to protect his partner and himself.’

When Noor saw a frame move into the driver’s side window, he shot once to protect his partner and himself, Wold said.

‘This was a perfect storm with tragic consequences,’ he said. ‘It is a tragedy but it is in no way a crime.”

Not a silhouette, a “frame,” whatever that might be.  It’s certainly less than a reasonable belief he was facing a deadly threat.  Wold is portraying the shooting of Damond as a tragic accident,something over which Noor had no control; any reasonable officer would have shot and killed Damond had they been in that car with Harrity that night.  Too bad, so sad for Damond, but hey, that’s just the way “perfect storms” go sometimes!

Final Thoughts:

This must be the bottom line for all police officers:they do not shoot unless and untilthey are sure they are facing an imminent threat of serious bodily injury or death.  This means that if they are not sure, they don’t shoot, even if it means their hesitation might result in their injury or death.  If they’re not willing to accept this standard, they don’t belong in the uniform.

It doesn’t matter if Noor thought he might be ambushed–he didn’t–or if he heard a thump on his car.  When he pulled that trigger, he had to be certain that whoever he was shooting was in the process of doing him or Harrity serious bodily injury or death.  By Harrity’s own admission, the most either of them could have seen–and I don’t believe Harrity or Noor saw even that–is a silhouette.  Man?  Woman? Falling tree branch?  Nearby garbage can?  They had no idea, and Noor, in a blind panic, stuck his handgun in Harrity’s face and fired.

Truly professional officers don’t rely on their agency’s training.  They spend time and money getting training and gaining and maintaining skills that give them an edge, that allow them to avoid trouble, to take those extra few fractions of a second necessary to be sure shooting is necessary.  I doubt Noor, or Harrity, are that kind of officer.

Did Noor’s “ambush training” tell him he should use abysmal tactics and be so unaware of his surroundings anyone could approach him without his having the slightest inkling of their approach? Did it tell him he could shoot without observing this universal standard?  See frame, shoot?

If this is the standard–and it must be–if the rule of law matters in Minneapolis, Noor must be found guilty.  If social justice rules…