In the Damond case, Mike Freeman says the waiting is not his fault

On Sunday I noted that we are awaiting the charging decision of Hennepin County Attorney Mike Freeman in the July 15 shooting of Justine Damond by Minneapolis police officer Mohamed Noor. Three months ago the Minnesota Bureau of Criminal Apprehension turned over its file in the case to Freeman. Freeman has vowed to make the charging decision himself rather than submit the case to a grand jury. He promised to make the charging decision before the end of the year.

Confronted about the delay by members of Twin Cities Coalition for Justice 4 Jamar at a union event in Minneapolis, Freeman blamed the BCA. “I gotta have the evidence,” Freeaman told his interlocutors. “And I don’t have it yet. And let me just say, it’s not my fault. So if it isn’t my fault, who didn’t do their jobs? It’s called investigators, and they don’t work for me. And they haven’t done their job.”

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?” That’s Mike Freeman speaking.

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.

At least one can understand what he is saying on this point: it’s not his fault. It’s one step up from Freddie Prinze’s catchphrase, but it’s still not an acceptable response here. At least he makes himself clear on this incredibly lame point.

Not so on the remainder of his remarks, on the prosecution’s burden of proof in the case. Freeman stated: “I have to prove beyond 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 I can’t, he won’t answer my questions. Because he doesn’t have to, okay?”

I literally do not understand what he is saying on this point. It doesn’t make sense. At best it is confused. Self-defense is an affirmative defense to a charge of homicide or manslaughter. If Freeman had evidence beyond a reasonable doubt that Noor feared for his life when he shot Ms. Damond, it would be wrong to charge Noor. But Freeman has no evidence that Noor acted in self-defense, let alone evidence that Noor acted in self-defense beyond a reasonable doubt. (Actually, the prosecution would have to overcome one of the elements of the defense beyond a reasonable doubt if Noor raised it at trial.)

On the contrary, Freeman has more than sufficient evidence to charge Noor. With respect to the facts of the Damond case, Freeman stated: “If you look at this, 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 I, it’s not just… Can I prove the cop shot her? I coulda done that the first day.”

Minnesota’s second degree homicide statue only requires the prosecution to prove that Noor “cause[d] the death of a human being with intent to effect the death of that person or another, but without premeditation[.]”

So what’s the problem? Freeman’s remarks suggest that he is searching for evidence that would justify a decision not to charge Noor. But Noor isn’t talking, so Freeman’s job has become complicated. If only Freeman had evidence of self-defense, he would have a basis on which to decline prosecution of Noor.

Maybe Freeman meant to say that if Noor were to raise the affirmative defense of self-defense, Freeman would have to overcome it beyond a reasonable doubt. I can’t imagine how Noor could succeed with such a defense if he rests on his Fifth Amendment right to remain silent at trial as he has done in the course of the investigation.

Freeman asserted that he was seeking to remedy the defects of the BCA investigation: “So guess what, I gotta figure out angles of the shot, gun residues, reckless use of force experts, I mean, everybody.”

Make of it what you will. I urge interested readers to review Freeman’s remarks yourself. As I say, I literally do not understand what he is saying beyond his disclaimer of responsibility. Maybe I’m missing something.

We have Freeman’s comments on the case as a result of a surreptitious video taken at the union event. The Star Tribune story on Freeman’s comments is posted here. The video was posted last night on Facebook here. Transcript of the video is posted here.

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