Criminal lawyer weighs in on charges against state trooper in fatal shooting of Ricky Cobb II

[MUSIC PLAYING] CATHY WURZER: Our lead story, the family of a Black motorist shot and killed by a state trooper last summer says charges against the trooper are a step towards justice.

Here's Rashad Cobb, Ricky Cobb's twin brother, speaking to the media just in the last half hour.

RASHAD COBB: We want equality. We want justice. We're not asking for the world. We're just asking for what's righteously ours.

SPEAKER: That's right.

CATHY WURZER: Trooper Ryan Londregan was charged yesterday by Hennepin County Attorney Mary Moriarty with second degree unintentional murder, first degree assault, and second degree manslaughter. Londregan's attorney has called Moriarty "out of control."

To help us break down the charges is criminal law attorney Joe Tamburino, with Caplan and Tamburino law firm in the Twin Cities.

A pleasure, Joe. Welcome to the program.

JOE TAMBURINO: Thank you for having me on.

CATHY WURZER: Say, when you first heard about the charges yesterday, what went through your mind?

JOE TAMBURINO: I was surprised because when I looked at the complaint, what immediately came to mind is that the complaint is rather confusing and pretty much legally inconsistent for a few reasons.

First is how they charged an intentional crime. Second is how they used felony murder. And third-- and this is very problematic-- how they're using training rules rather than expert opinions in order to support the charge.

So when you look at the complaint, it's very unusual for a police officer use of force case.

CATHY WURZER: Let's break down the charges for folks.

JOE TAMBURINO: Sure.

CATHY WURZER: Let's start with the first degree assault. Isn't that an intentional crime?

JOE TAMBURINO: Quite right. And that's what's really a problem in the case. Because what you have are two unintentional crimes, count one and three. And sandwiched in between them is a very serious intentional crime.

What they charged in count two is intentional first degree assault. Which means that what they're going to prove, or what they want to prove, is that the trooper fired his gun intentionally, wanting to do harm to Mr. Cobb, regardless of use of force standards or anything like that.

So they're saying he intentionally did that. And legally, you would think, well, wait a minute. If you're intentionally shooting someone and want to do harm that way, wouldn't the charge then be simply intentional murder? So that's what's confusing. They're using this very serious intent crime and sandwiching it in between two unintentional crimes.

You could think of it this way. Even in Chauvin and Potter, those two trials, those two cases, they were never charged with any intent crimes. Mr. Chauvin was charged with crimes that were unintentional, meaning felony murder and manslaughter. And Ms. Potter was charged with two counts of manslaughter, which are both unintentional acts.

So even in those cases, there were no intentional crimes.

CATHY WURZER: Have you ever seen something like this?

JOE TAMBURINO: I have never seen that, no. I have never seen where you put in a complaint such a serious intent crime, first degree assault, in between or to use it to buttress unintentional crimes. And that's what makes it a little legally and practically confusing.

CATHY WURZER: And what did you make of the grand jury-- a grand jury was convened to investigate the case-- but jurors were never asked to make a charging decision. Is that normal procedure?

JOE TAMBURINO: It's not a problem. And it is normal in some jurisdictions. Just because it hasn't happened in Minnesota a lot doesn't mean that it's illegal or improper. And here's why.

A grand jury-- 23 people who are trying to decide whether there's probable cause in a case-- can be either an investigative grand jury or a grand jury that gives an opinion on an indictment.

We see investigative grand juries all the time-- when you think about federal cases in New York and Washington, DC, political cases. And what they are, basically, is you have these grand jurors, and a prosecutor will bring forth witnesses to testify under oath. But then the prosecutor won't ask for an indictment because they're using the grand jury just to gain information.

We see this a lot where you have-- say you're investigating a situation where witnesses don't want to come forward-- because you could ask someone, Look, do you want to talk to me about this case? and it's within their right to say, No, I don't. However, if you convene a grand jury and you subpoena that witness to the grand jury, unless they're going to incriminate themselves, they have to testify.

So that's, it seems, what happened here. I don't know exactly because it's not been divulged publicly, but it appears that a grand jury might have been used to simply investigate or interview witnesses.

CATHY WURZER: County Attorney Moriarty-- let's talk about use of deadly force here. You mentioned that a little bit. It's what this case will likely center on, right? So remind us, what does state law say about deadly force?

JOE TAMBURINO: Sure. Well, you could use deadly force as a police officer if, at the time, you're trying to save yourself, basically, or others. A police officer is allowed to use force in his job, per se.

An example of that would be this. An average person, you or I, cannot use physical force unless we're trying to protect ourselves or others. However, a police officer can use physical force in their job.

For instance, if a police officer has to respond to a crowd or a party or something like that, a police officer can physically move people away so that they could get through the crowd and start investigating, get to witnesses, or get to the victim, whereas you and I could not unless we were using self-defense.

So a police officer can use reasonable force in the execution of his or her duties. And they could use, obviously, deadly force when they're trying to protect themselves or others. And that's going to be the defense in this case, obviously.

CATHY WURZER: You mentioned the use of a use of force defense expert. Evidently, that was thought about, but then was not enacted on. Was that unusual?

JOE TAMBURINO: That's very unusual. And here's why. We have what's called discovery rules in Minnesota. Every state has them. So does federal law. And what discovery rules mean is this. A prosecutor who has any information about a defendant-- any witnesses that may have testified or given information, anything about that-- under Rule 9 of our Rules of Criminal Procedure, the prosecutor has to divulge that information to the defendant.

And that is even compounded with what's called Brady Rule. Brady is from Brady v. Maryland, US Supreme Court case 1963. And what that says is a prosecutor has to divulge to a defendant evidence that may exonerate the defendant.

And I don't know this, but if what we've seen in the media is correct-- that the County Attorney's Office did discuss this case with an expert sometime in September-- I think is what the media has reported-- and it's not divulged to the defense, that's going to be a problem.

So if an expert was even consulted-- we don't have to get into writing a report or testify-- even consulted by a prosecutor, the prosecutor has to give that information to the defendant. So if one was consulted with, even if they didn't issue a report, I would imagine they're going to give that to the defense.

CATHY WURZER: All right. State troopers are prohibited from shooting from or at a moving vehicle, according to state patrol rules. How might a jury view what happened with patrol policy if this gets to trial?

JOE TAMBURINO: Well, they're going to have to clarify that. Because the basis for that policy-- and it's a good policy, of course-- is that you don't just want to pull out your gun and start shooting at a moving vehicle. And what's really going to be the crux of the matter here is the troopers, from what we know from looking at at least the body-worn or the dashcam video from the squad car that's been publicly released-- the troopers are partway in the car.

So it's not just like I'm shooting at a moving vehicle. It's quite different when a police officer is actually partway in the car. Why is it different? Because a car can be a weapon. An automobile of any size can be a weapon. Because if you flee in it, if you pull away and you drag someone, you could cause someone great bodily harm or death.

So yes, state trooper rules are quite clear. And they're good rules. However, this is a little bit different. So however it's played to the jury, they're going to have to explain that-- that rather than just simply shooting at a moving vehicle, the officer is partway in the vehicle, and therefore it changes the whole situation.

CATHY WURZER: Do you think, by the way, Joe, this goes to trial or might there be a plea deal?

JOE TAMBURINO: Oh, I would imagine something like this would go to trial. I think the defense has come out, from what we've seen in the media, pretty forcefully. They've already issued a motion to dismiss. So I would imagine this case is going to trial.

And we know that the last two cases that we've had, Chauvin and Potter, have both gone to trial. And what's going to be interesting about this case is now we're in a different landscape, with cameras in the courtroom. As of January 1st of this year, our Minnesota Supreme Court is allowing cameras in the courtroom.

So whenever this goes to trial, I would imagine it'll be televised.

CATHY WURZER: That's right. All right, Joe. Thank you so much for your time today.

JOE TAMBURINO: Any time. Thank you for having me on.

CATHY WURZER: Joe Tamburino is a criminal defense attorney with Caplan and Tamburino law firm in the Twin Cities.