This week is likely to be one of the toughest of Hennepin County Mike Freeman’s career, which has included stints in the Minnesota Senate and two failed bids to be governor. Freeman will almost certainly announce whether he will criminally charge police officers in the death of Jamar Clark, a highly unusual responsibility he assumed by declining to pass the case along to a grand jury.
Not a lot of people expect Freeman to come out of the week a winner, and it’s not just because he’s fighting his latest battle on one leg. In February, Freeman took a nasty fall on the ice and blew out his knee.
No, Freeman’s task is one that people in his position have historically rejected because there are essentially two possible outcomes: If he charges police with a crime, he is sure to anger police officers and their union, the very people who provide him with the evidence he needs to do his job. If he declines to charge, he angers civil rights activists and community members who have put him in this spot by arguing against grand juries, which rarely indict police.
The sound thing, the sane thing, would have been to push the decision to a grand jury of 23 citizens and wash your hands of the outcome.
But nationwide distrust of the grand jury process, especially when it comes to police shootings, apparently persuaded Freeman to try something else, mostly likely at his peril.
Over the past couple of weeks, I’ve talked to cops, lawyers, professors and political types about why Freeman might do this, now well into a second round as county attorney and just short of his 68th birthday. Some of them, particularly cops and defense attorneys, assume he would not shoulder responsibility unless he was planning to charge the officers, seizing a climate of distrust of police. Others think he’s just doing what he believes is best.
“One word: Fraught,” Steven Schier, a political-science professor at Carleton College, said of the decision. “Avoiding the grand jury may just be an attempt by Freeman to avoid raising the temperature already out there [particularly after Chief Janeé Harteau’s unfortunate threat-down video]. It’s evidence vs. the pressure to indict.”
If Freeman is playing politics, it’s difficult to detect a favorable angle.
“He’s past his prime,” said Schier. “He’s run statewide and not done well. [Politically], it’s very hard to see some sort of statewide or even metrowide benefit of an indictment. The only way is if the case is airtight.”
Simply put, more voters give police the benefit of the doubt than don’t. But not indicting police will certainly cause demonstrations and further criticism that the system is rigged.
“I can’t believe he can afford to be thinking about [politics] in this decision,” said Schier. “It’s too weighty. His future prospects in that regards are not bright.”
“The easiest thing for Mike Freeman to do is send [the case] to an outstate county so he could be separated and make it a nonpolitical situation,” said Peter Wold, a defense attorney who criticized Freeman’s handling of the Gang Strike Force problems. “He’s taking on a lot of responsibility that’s going to cause hard feelings either way.”
Bert McKasy, a former Republican operative who worked with DFLer Freeman in private practice, agrees.
“I don’t think he’s got any real political ambitions [except maybe another term as county attorney],” said McKasy. “I admire Mike’s decision. At this point of his career I think he’s going to call it as he sees it and let the chips fall where they may. I think he’s going to try to be very transparent, and do it with his heart and his mind.”
Logically laying out all the facts, however, used to stand a chance. Not any more, not in the age of Trump and truthiness. I recently was accused by a reader of using facts “as a crutch.” That’s our world now.
“There are certain segments who have already made up their minds,” said McKasy.
“This is a very serious matter,” echoed Schier. “Our judicial system depends on facts. If facts don’t matter, we are in serious trouble.”
Joe Daly, a former law professor who believes the grand jury system can work, said either outcome will possibly cause legislative bodies to look at changes in the grand jury process to make it more trustworthy.
If so, “maybe this becomes a lose-lose [for Freeman] and a win, a win for We the People.”