At the Noor trial (2)

The trial of former Minneapolis police officer Mohamed Noor continues this week with the completion of jury selection and the attorneys’ opening statements tomorrow. Noor is charged with second and third degree murder and second degree manslaughter in the killing of Justine Ruszczyk (known as Justine Damond) in July 2017. Ms. Ruszczyk had called 911 to seek police intervention in what she feared might be a rape occurring in the alley behind her home. As events unfolded in nightmare fashion, Ms. Ruszczyk was shot and killed by Noor as his partner drove down the alley before midnight on the evening of July 15.

The facts and charges are set forth in the criminal complaint posted here and in the the subsequently filed amended complaint posted along with other documents filed in the case on the court’s Noor trial page. The case has been assigned to Hennepin County District Judge Kathryn Quaintance. The State of Minnesota is represented at trial by Assistant Hennepin County Attorneys Amy Sweasy and Patrick Lofton. Noor is represented by Minneapolis attorneys Thomas Plunkett and Peter Wold. Plunkett dominated voir dire last week. Ms. Sweasy did not take a turn at bat until Friday, and then only briefly.

Several local media outlets including the Star Tribune, Minnesota Public Radio, CBS Minnesota (WCCO TV, via CBS Broadcasting) and FOX 9 (via Fox/UTV Holdings) have banded together under the name of the Media Coalition to contest certain of Judge Quaintance’s orders affecting press coverage of the trial. Sweasy’s turn at voir dire was interrupted Friday afternoon for a hearing on the motion brought by the Media Coalition’s objection to her order suppressing part of the bodycam footage that will be admitted into evidence when the trial gets underway in earnest early next week.

Judge Quaintance has ordered sua sponte (i.e., on her own motion) that certain bodycam footage and photographs are to be suppressed from public viewing even though they will be admitted into evidence. The hearing concluded yesterday’s proceedings. The bodycam footage that is to be suppressed from public view depicts Ms. Rusczczyk naked from the waist up. The officers are administering CPR. Her chest is exposed as she takes her dying breaths.

The Media Coalition has retained Leita Walker of the Ballard Spahr firm. Ms. Walker has filed this objection and memorandum of law as well as an affidavit with supplemental case law in support of the Media Coalition. She presented oral argument at the hearing on Friday afternoon. All documents relevant to the motion have been posted on the court’s Noor trial page.

Judge Quaintance has not yet filed a written order setting forth her restrictions on press and public access to evidence to be admitted at trial. She has announced her intentions orally from the bench. The items intended to receive this treatment are set forth at page 3 of the Ballard Spahr memorandum of law linked above. Attention at the hearing was focused exclusively on the specified part of the bodycam footage.

In the usual course of events at trial we have two or more parties contesting the issues in the case. They present arguments to the court based on the relevant constitutional provisions, statutes, rules, and case law. In this matter, the Media Coalition has taken up an issue raised only by the judge herself. The applicable law is adequately set forth in the memorandum of law and supplemental authorities submitted by the Media Coalition.

Judge Quaintance made a variety of assertions taking issue with Ms. Walker in the course of the hearing. This is the gist as I took them down in notes reflecting the judge’s own words:

The public has no right to unfettered access to the evidence. The public interest has to be balanced against the privacy interest of the victim.

While the judge is a total advocate of transparency, this is an issue of the right of the victim not to have her bare breast exposed to a bunch of strangers.

The judge wants to protect pictures of a woman naked and gasping for breath.

The public doesn’t need to see this evidence. It isn’t deciding the case.

The judge is not convinced that the the public has a legitimate interest in seeing this evidence.

The Media Coalition argument assumes that the press is a proxy for the public.

The judge’s ruling does not apply to a majority of the bodycam footage.

The judge’s primary concern is public influence of the jury that would result from the evidence being made public.

The thought of images of Ms. Ruszczyk’s demise being circulated is highly distasteful. It’s shocking.

These are all little more than assertions in search of a legal argument. I seriously doubt that the court’s order can stand. It seems to me a bald assertion of will lacking legal authority. Despite the faces she made at counsel and a tone of voice expressing incredulity, I didn’t hear a single citation of authority in Judge Quaintance’s comments.

Ms. Walker added in the course of her argument that the Media Coalition had served Minnesota Data Practices Act requests on the Minneapolis Police Department and the Minnesota Bureau of Criminal Apprehension for the bodycam video upon its admission into evidence at trial. At that point, she noted, it becomes public data that is accessible under the act without exception, citing the Minnesota Supreme Court case of In Re Access (1994), summarized here. “There is nothing you can do about it,” Walker stated.

Minnesota Public Radio has posted a good account of the hearing with additional background. MPR also discusses the argument on the judge’s restrictions on sketch artists raising an issue of prior restraint.

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