Smooth Move

In which Mike Freeman drops a banana peel in front of Keith Ellison while saying “Hey, join the team,” and chuckles as Ellison eagerly rushes in.

Freeman is a jerk but he’s also an experienced prosecutor.  Remember the Somali cop who shot the little White woman in the alley?  He got convicted of 3rd degree and got 12 years, nothing close to what the mob wanted. Freeman survived that fiasco and he intends to survive this one.  
He’s read the autopsy report.  He knows Floyd didn’t die from lack of air (obviously not, or he couldn’t have been talking).  Freeman knows the victim was stoned and had other medical issues that may have been exacerbated by the arrest, which might possibly make the officer careless or negligent, but Freeman knows there’s no way to make Murder 1 stick and that’s the only thing that will satisfy the mob.
So how’s he get the mob off his back?  He asks Keith Ellison for help.  Ellison – who has no prosecution experience – will now “take the lead.”  Which means whatever goes wrong with the case from here on out, Freeman points at Ellison and says “Don’t ask me, he’s in charge.”
Early in my career, I spent a few years as a prosecutor.  A criminal case isn’t won by clever speeches or Twitter comments, it’s a s***load of hard work.  Ellison has no idea.  He’s being set up to take the fall when the cop walks.  Freeman will shrug and carry on.  Walz will remind us what a great job he’s done on Covid.  Charlie Foxtrot all around.
Joe Doakes

More on this later today.

20 thoughts on “Smooth Move

  1. Ellison has no idea. He’s being set up to take the fall

    Couldn’t happen to a nicer guy.

  2. Appreciate your wisdom, JD. Ellison is an example in the legal profession of what the physicist Richard Feynmann called cargo cult science. It has the appearance of being real but lacks substance.

  3. Ellison could shoot someone in the middle of Minneapolis and get away with it. Too many dumb ass DemocRAT voters that vote party over person.

  4. I wish (like so many other things) I had retained the story/link, but I read a hint of this in the first few days after this all started and before the ME’s report came out.

    Freeman sorta, kinda indicated that there would be problems. I assume he found out from his contacts w/ the police that the real circumstances of Mr Floyd’s death were more complicated than those of the Narrative. Given the other Narrative failures of the recent past (Trayvon Martin, Michael Brown, etc) and the resulting, um, reactions, a political animal like Freeman would want to avoid running this show like the plague.

    I don’t know the details and JD can probably help, but I seem to remember that trying to convict on a charge, like say 1st degree murder, that the evidence doesn’t support could result in a Not Guilty verdict. Oof-da.

    One question, I expect that even a dumba55 like Ellison will try and get one of his underlings to do all the hard work. Is that possible? Does the AG office do prosecutions?

  5. I questioned the rationale of Hakim’s replacement off Freeman yesterday on another site. Freeman is not black or Muslim (another minority), that makes him less a useful idiot in the Metro. You can bet that Hakim will take advantage of every photo-op possible. It’s not about the law it’s about optics.

  6. There’s little chance the copper will get a fair trial unless it’s moved to the Iron Range, but having Hakim X Keith “Fuck the 12” Ellison sitting in the first chair at the prosecutors desk guarantees a re-trial at some future date.

    Ellison is a scumbag of the 1st order, but he’s not stupid. How could he believe his, and his shorty’s, public support for a terrorist group will not weigh in?

  7. I think jdm is on to something with regard to some of Freeman’s earlier statements. Freeman has undoubtedly seen the police body cams and possibly he knows Floyd wasn’t as compliant as they make out when he was first told he would be detained.

  8. JDM – I’m not an expert on criminal law and my experience was long ago, but here’s what I remember.

    Minnesota has no State Police (the State Patrol are the grown-up version of high school hall monitors to stop speeders, drunks and direct traffic at crashes). The Bureau of Criminal Apprehension handles a variety of investigative support duties but not prosecutions.

    City cops and prosecutors handle misdemeanor prosecutions and a select few Gross Misdemeanors, mostly drunks and disruptive behavior-type crimes.

    Felony law enforcement – rape, murder, arson – is done at the County level, investigated by the Sheriff and prosecuted by the County Attorney.

    The Attorney General is like the Office of Corporate Counsel for a big corporation. The AG advises about a hundred state agencies and boards on administrative rule-making, environmental enforcement, tax evasion, criminal trial appeals (after the county-level trial is done), driver’s license revocations, etc. When the State wants big-shot litigators to handle a big case, they hire outside counsel (example, the tobacco litigation).

    Yes, there are experienced criminal law attorneys in the AG’s office. But they’re not line prosecutors, the people who handle the thousands of day-to-day criminal jury trials. Amy Sweasy and Patrick Loft of the Hennepin County Attorney’s office prosecuted Noor, the Somali cop who shot Justine Damond. They’re experienced, career prosecutors. I would expect to see Mike Freeman assign somebody like them to spend the next year preparing this case.

    After I wrote to Mitch, I see the Hennepin County Medical Examiner has decided the death was Homicide. That’s not as helpful to the prosecution as you might think. The root of the word “Homo” simply means the death was caused by another Human, but it tells us nothing about the intent of the killer or the defenses to be raised (every concealed carry permit holder who shoots somebody will be tried for Homicide, but hopes to convince the jury it was Justifiable Homicide, and thus not a crime).

    A murder trial is serious business. Keith Ellision’s best role will be court jester.

  9. I saw a report a news program this morning, claiming that one of the other MPD officers asked Chauvin; “Don’t you think that’s enough?” to which Chauvin, allegedly, reponded, “No.” If this turns out to be true, Chauvin is in bigger trouble than he knows.

  10. Very interesting and thanks JD, but what I really wanted to know was if trying to convict on a charge of, like, say, 1st degree murder, that the evidence doesn’t support, the result could be a Not Guilty verdict. Is that true?

    I mean, the evidence might support a lesser murder charge, but I thought that the Narrative wants “murder one” (to use cool police-show lingo).

    OK, bonus question, a guy can only be charged once for an identical capital offense, yes?

    Double Oof-da.

  11. I’ve seen the tape of Chauvin kneeing Floyd’s neck. I’ve seen the timeline reconstruction by the NY Times.
    I’ve been asking myself: when did the illegal act that led to Floyd’s death occur? The knee on the neck thing is legal (or so I’ve heard).

  12. MP, I heard from an MP (military policeman) that it is indeed legal and used; however, one must be careful and use it sparingly and with restraint.

  13. To my knowledge, Ellison has never prosecuted a criminal case. Even less experienced in murder/manslaughter. Can anyone confirm?

    My belief is that Ellison will be a figurehead. Anything he actually tries to contrjiywill likely cause problems with the actual prosecution. If Ellison attempts to lead this case, Chauvin’s chances just improved!

  14. JD — are you able to comment as to whether Hennepin County attorney Freeman would have a conflict of interest prosecuting City of MPLS police? If so, would he not have had had the same conflict in the Noor case?

  15. JDM – like everything in the law, the answer is “well, sort of, depending.”

    When one person kills another, the penalty depends on the killer’s intent. You can read the different degrees in Chapter 609 of the statutes.

    I expect the prosecutor to argue in the alternative by charging the officer with two counts. “Murder in the First Degree” should not be one of them, despite what the mob wants, because it is defined in Minn. Stat. 609.185 as: “causes the death of a human being with premeditation and with intent to effect the death of the person or of another.” I doubt you can convince a jury the cop planned and intended to kill Floyd, and carried out the murder on camera while his buddies stood around watching.

    Murder in the Second Degree is defined in Minn. Stat. 609.19. It’s reserved for drive-by shooting, deaths resulting from the commission of another felony, etc. Doesn’t apply here.

    Instead, I expect Count 1 – Murder in the Third Degree, Minn. Stat. 609.195, Officer didn’t mean to kill the victim, but Officer did something so dangerous, so reckless, he should have known it would kill the victim, but Officer did it anyway.

    And also Count 2 – Manslaughter in the Second Degree – Minn. Stat. 609.205 – Officer didn’t mean to kill the victim, and Officer’s actions weren’t recklessly dangerous, but his actions were so careless they created an unreasonable risk, and Officer consciously took the chance of causing death or great bodily harm to another person.

    That’s what Noor was convicted of for shooting Damond.

    If the jury finds there’s not enough evidence to convict on Count 1, the jury can still convict on Count 2.

    Under the ethical guidelines, the prosecutor should not bring a charge she knows she cannot prove. I’m struggling to think of a case where a prosecutor was disciplined for doing it. The practice is common.

    Some defense lawyers claim there’s a psychological reason prosecutors bring multiple counts – so that jurors who feel bad about acquitting on Court 1 after the prosecutor worked so hard, feel better about convicting on Count 2, because the Defendant must have done something or they wouldn’t have arrested him.

  16. Emery – as a matter of statutory law or legal ethics, there is no conflict of interest in the County Attorney prosecuting the City Police.

    That’s why Freeman’s office prosecuted Minneapolis cop Noor for shooting Damond and why Ramsey County Attorney John Choi’s office prosecuted Falcon Heights cop Jeronimo Yanez for shooting Philando Castile.

  17. Thank you — the only reason I asked was that a local defense attorney Joseph S. Friedberg had that opinion (conflict of interest) on a local talk radio show yesterday afternoon.

  18. I didn’t hear the interview so I don’t know why Joe’s trotting out that chestnut again. He tried that argument once before and got shot down by the Court of Appeals. See: In Re Jacobs, 802 N.W.3d 748 (2011).

    I despise Mike Freeman’s politics but he’s no dummy – if he had a conflict, he’d say so and step aside before the Board of Professional Responsibility steps in to administer professional discipline. There’s no upside for him in that scenario.

    On the other hand, I will say this: Joe Friedberg is a very successful defense lawyer. That means his job is to get his client off. Suggesting to the media that it’s all a huge conspiracy between grand-standing politicians like Ellison and conflict-of-interest Freeman to persecute the poor officer who was only doing his job protecting and serving the fine people of Minneapolis . . . what some people would call BS is known in the trade as “jury prep.” Don’t have to work as hard against the prosecution’s case if the jury is already predisposed to be sympathetic to your client. Comments to the media are not testimony, not under oath, not binding.

    It seems to me the best defense lawyers believe truth, justice, and accuracy are things . . . . that happen to other people (can you tell I’m a former prosecutor). This might be more of the same. But as I say – I didn’t hear the interview.

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