Hennepin County Attorney Mike Freeman is convening a grand jury to gather evidence in the 2017 shooting of Justine Ruszczyk Damond, but said he still will decide whether Minneapolis police officer Mohamed Noor will face charges in her death.
About 35 to 40 Minneapolis police officers have been subpoenaed to testify, according to Bob Kroll, president of the Minneapolis Police Federation, the union that represents the department's rank-and-file officers. Among them was Matthew Harrity, Noor's partner the night Damond was killed, and the only living witness aside from Noor. His attorney, Fred Bruno, said Harrity was served Wednesday.
"It came as a surprise," Bruno said. He declined to say when Harrity will testify.
Freeman's decision comes after a pledge he made in 2016 to no longer use grand juries in officer-involved shootings. Hennepin County attorney's office spokesman Chuck Laszewski maintained that Freeman "will continue the office's two-year-old policy where he makes the decision on whether or not to bring charges in officer-involved shootings."
"Because grand jury proceedings are secret, we cannot comment on grand jury subpoenas or any testimony that occurs before a grand jury," Laszewski said.
Minnesota law gives grand juries the power to issue indictments and require people to testify by issuing subpoenas, though witnesses can invoke their Fifth Amendment right not to testify to avoid self-incrimination. Kroll said union members will cooperate in the grand jury process.
"Unfortunately, the federation cannot answer the obvious question the media is asking: How can County Attorney Freeman retain charging authority while simultaneously submitting the case to a grand jury?" he said in a statement.
Freeman declined to comment on what authority he has to call a grand jury without asking for a charging decision, but former Ramsey County Attorney Susan Gaertner, who now works in private practice, said he has that right.
"There are two separate concepts; you can do one, the other or both," Gaertner said. "The power of a grand jury to investigate potential criminal acts is very long-standing."
Noor's attorney, Thomas Plunkett, said in a statement that while Freeman's "public comments leave me unclear as to what he is doing, it would be unethical and potentially unlawful to comment publicly on this development."
Bob Bennett, an attorney for Damond's family, said they support Freeman's move, saying police and other witnesses involved in the case have been uncooperative and "untruthful." He would not go into specifics.
"I and the family are happy that the Hennepin County attorney is using every means at their disposal to get people to cooperate in this investigation and suffer the penalties of perjury if they lie to the grand jury," Bennett said.
"I question whether [witnesses] have been totally forthcoming or told the truth in whole," he added.
Kroll said several officers declined voluntary interviews, but said none of them were at the scene.
"They are calling in everyone that ever had anything to do with officer Noor," Kroll said. "Totally irrelevant."
Freeman's decision to use a grand jury is the latest turn in a case that has gained international attention since July 15, when Noor shot and killed Damond, 40, an Australia native, after she reported a possible assault behind her south Minneapolis home.
Freeman had said that he would make a charging decision before the end of 2017. But in December, he was caught on video blasting Bureau of Criminal Apprehension investigators for not bringing him enough evidence to charge Noor.
"I've got to have the evidence, and I don't have it yet," Freeman said in the video. "Let me just say it's not my fault. So if it isn't my fault, who didn't do their job? Investigators. They don't work for me. They haven't done their job."
Toward the end of December Freeman announced that he would not make a charging decision in the case until 2018, but had since remained silent on the case until his statement Wednesday.
Freeman said nearly two years ago that he would stop using grand juries in police shooting cases. The announcement first came in March 2016 when he was deciding whether to charge two officers in the officer-involved shooting death of Jamar Clark in north Minneapolis the previous November.
In December 2016, Freeman said one of the biggest regrets of his career was using grand juries to investigate police-involved shootings.
"I made a mistake in the first 17 years of being a county attorney by using a grand jury" to investigate officer-involved shootings, Freeman said in response to an audience question about whether "he has any regrets."
Harrity told investigators that on the night of the shooting he and Noor were responding to a sexual assault report behind Damond's south Minneapolis home and were startled by a loud sound, according to a press release issued by the BCA three days after the shooting. Immediately afterward, Damond Ruszczyk approached the driver's side window of the squad, according to the BCA. Noor, sitting in the passenger seat, pulled his gun and fired, hitting Damond through the open driver's side window.
Noor declined to be interviewed by the BCA.
"Unless someone else comes forward, the BCA does not have additional interviews scheduled at this time," the agency said in its July 18 news release. A few days later agency investigators spoke to a bicyclist who was seen immediately before the shooting and later watched as police attempted to resuscitate Damond.
The agency turned the case over to Freeman on Sept. 12.
In a statement issued Wednesday, Minneapolis Mayor Jacob Frey said: "Arriving at the right decision requires the right facts and complete truth. No institution — including the City of Minneapolis — should stand in the way of uncovering that truth."
Brandon Stahl • 612-673-4626