I will hazard the guess that if I don’t understand what the prosecution is doing, the jury probably doesn’t understand either. On Monday two of the prosecution’s seven witnesses were blood experts from the Minnesota Bureau of Criminal Apprehension. Justine bled to death after Mohamed Noor shot her, but those facts have already been established and are undisputed.
Tuesday we had more of the same as the prosecution called three firearms experts — two from the BCA, one from a BCA contractor. Again, the fact that Noor fired the shot that killed Justine is undisputed. Two of these witnesses may have confused the jury. One found gunshot residue on Harrity’s clothing. The other didn’t. The prosecution may have created an issue and confused a juror or two over an undisputed fact. I don’t get it.
The Star Tribune seems to have resorted to my format to summarize Tuesday’s testimony. At least I haven’t seen reporters Choa Xiong or Libor Jany use it before. They also cover Tuesday’s testimony in conventional narrative style here.
The end approaches. The prosecution ran out of witnesses at 3:00 and Judge Quaintance excused the jury for the rest of the day. The lawyers returned to discuss jury instructions. The prosecution will call its experts on the use of reasonable force by the police today. I think it will rest its case after its experts testify. The defense has one such expert.
In the discussion of jury instructions, Judge Quaintance observed that it remains unclear whether Noor himself will testify. Defense counsel Tom Plunkett and Peter Wold remained silent. They aren’t saying. The defense must think it came out ahead on Harrity’s testimony, but doesn’t Noor have to testify in his own defense of an officer-involved shooting? As I say, they aren’t putting their cards on the table. They are playing it cool.
This is my take on yesterday’s testimony.
• BCA Special Agent Chris Olson retook the stand to complete his testimony. The prosecution is unhappy with certain aspects of Olson’s investigation. Assistant Hennepin County Attorney Amy Sweasy argued with Olson about his failure to investigate the source of the noise Justine heard in the alley behind her house on the evening she was shot.
• I think this is a needless fight. The issue is whether Noor lawfully used deadly force when he shot Justine. I just don’t see how investigation of the noise issue advances the analysis. As usual, defense counsel Tom Plunkett accredited the law enforcement witness with whom Sweasy had been arguing. He cross-examined Olson on Olson’s long career and his efforts to take control of the “chaotic” scene of an officer-involved shooting.
• Sweasy had Olson explain a previous inconsistent statement in which he acknowledged that he had come up with the assertion that Justine “slapped” the Noor/Harrity squad car. On further reflection, Harrity recalled getting it from Sergeant Barnette.
• Sweasy also fought with Olson about his acceding to the BCA agents’ interview of Harrity at the home of Harrity attorney Fred Bruno three days after the shooting. Olson conceded that he would have preferred to conduct the interview at “a different venue.” Conducting it at the attorney’s home risked the appearance of special treatment for a police officer.
• On cross-examination, defense counsel Tom Plunkett suggested , or followed up on Olson’s suggestion, that the noise Justine heard might have been raccoons. I thought this was ridiculous, but so what if they were? I’m probably missing something, but that’s my reaction.
• On Sweasy’s redirect examination of Olson, she asked him to explain what he meant by his description of the scene as “chaotic.” Among other things, Olson described the scene as “dark,” whereas he had described it as well-lit on direct examination. Sweasy was losing ground.
• You may recall that Harrity’s bodycam video has what I called “a 15-second gap” that should have caught the shooting. Based on the testimony of several police witnesses, if turned on, the bodycam should have a 30-second buffering period during it silently captures the 30 seconds preceding activation of recording by the officer. We have seen this buffering on the numerous bodycam and squad car videos introduced into evidence — all but Harrity’s. Harrity’s has a 15-second buffering period. Another 15 seconds would have caught the shooting.
• The BCA undertook substantial efforts to “retrieve” those 15 seconds of video from Harrity’s bodycam. The State called Special Agent Donny Cheung to testify to these efforts. The BCA hired DME Forensics of Golden, Colorado to extract the memory chip in order to retrieve the missing data. DME was not able to retrieve the data.
• BCA Special Agent Brent Peterson has been the lead BCA agent on this case since December 2017 Between July 15 and December 4, 2017, the BCA only interviewed two officers. Forty interviews were ultimately recorded and transcribed. The Hennepin County Attorney convened a grand jury to obtain additional testimony and complete its investigation. Peterson signed the criminal complaint charging Noor. I think the prosecution concluded its law enforcement testimony with Peterson.