Prosecutors: Noor's pre-arrest silence should be admitted at trial
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Updated: 3:50 p.m. | Posted: 3:03 p.m.
Hennepin County prosecutors want to use former Minneapolis police officer Mohamed Noor's pre-arrest silence against him at trial, according to a memo filed Monday that details attempts to get Noor to speak with investigators as well as a secret grand jury.
Noor is heading to court Friday for a pre-trial hearing where Hennepin County District Judge Kathryn Quaintance is expected to consider arguments both sides have made so far. Noor is charged with second- and third-degree murder and second-degree manslaughter in the shooting death of Justine Ruszczyk on July 15, 2017, after she called 911 to report a possible assault.
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In new court documents, prosecutors say there were repeated attempts to gather a statement from Noor on what happened the night of the shooting. They argue that his invocation of the Fifth Amendment outside of an interrogation context and pre-arrest makes it invalid, therefore admissible as evidence that could be used against him.
Hennepin County prosecutors say on the night of the shooting, a Minneapolis police officer brought Noor to room 100 at Minneapolis City Hall. As typical in officer-involved shootings, the Minneapolis Police Federation arranged for an attorney to represent Noor. Defense attorney Thomas Plunkett responded and met with Noor and his partner at the time, Matthew Harrity.
Minnesota Bureau of Criminal Apprehension agents, also in room 100, photographed Noor and Harrity, gathered uniforms and took blood samples.
Court documents go on to say that the BCA did not attempt to interview Noor. Standard practice is to give the officer three days before the investigative agency requests a voluntary interview. Two days later, Plunkett told the BCA agent that Noor would "not be providing a statement at this time." Eight days later, asked if Noor had reconsidered, Plunkett said nothing had changed. Noor was not in custody or charged with a crime at the time.
Six months later, prosecutors sent Plunkett a letter requesting that Noor answer questions before a secret grand jury, which Hennepin County Attorney Mike Freeman convened for investigative purposes before he filed charges against Noor.
According to the prosecution's filing, Plunkett replied: 'As you know from our past discussions and communication, officer Noor asserted his constitutional right to remain silent from the beginning ... To be clear, he is again invoking his constitutional right to remain silent.'
Noor was never subpoenaed and was charged about a month later. He has not entered a plea but indicated through court documents that he intends to plead not guilty.
His attorneys have argued against the prosecution using evidence regarding his pre-arrest silence, noting that it would violate due process.
Asked Monday for comment on the latest arguments, Plunkett declined and said defense attorneys plan to address the issue Friday.
A list of other arguments was included in a series of court filings both parties have made earlier this month as they get closer to a pretrial hearing Friday and the start of the trial in April.
One of three memos filed by the state Monday focuses on Noor's pre-arrest silence. Prosecutors say the investigator didn't have a chance to read Noor his Miranda rights.
"In sum, the defendant had a choice on whether to tell his side of the story during a voluntary interview in a non-coercive setting," prosecutors Amy Sweasy and Patrick Lofton wrote. "His decision not to do so is relevant. It should therefore be admitted into evidence."
University of Minnesota law professor JaneAnne Murray said the prosecutors' arguments are unlikely to meet U.S. Supreme Court standards, which only permit prosecutors to use a defendant's silence where he simply remained silent and did not formally invoke his rights under the Fifth Amendment. Here, Noor's lawyers formally communicated to the prosecutors that their client was not making a statement.
But she said meeting case law standards is only the first step. The judge will decide whether the probative value of Noor's silence outweighs any prejudicial value. "What exactly do they think it's proving? Are they suggesting that it proves a guilty conscience?" Murray asked. "It's probative of what his lawyer instructed him to do. It's probative of somebody who is worried about losing his job."
Another memo filed Monday opposes Noor's request to sever the second-degree murder count from the other two charges. His lawyers previously argued that each charge requires competing defenses. But prosecutors say the charges arise from the same incident and therefore should not be tried at different times.
In a separate memo, prosecutors explained why they think it's important to admit Noor's pre-hire psychological test as evidence.
The trial has attracted widespread media attention, including from Court TV and the Australian Broadcasting Corporation. After both prosecutors and defense attorneys objected to media requests to record the hearings, Judge Quaintance on Friday issued an order saying she won't permit any "audio or visual recording or reproduction" of the trial.
Noor's attorneys filed their own responses to earlier prosecution motions on Monday.
Defense attorneys say that a psychological evaluation done before Noor was hired by Minneapolis police should not be admitted as evidence because it "doesn't offer any insight" into Noor's character.
The attorneys also argued that a 911 call that Noor and his partner responded to in Ruszczyk's neighborhood just a few hours before the shooting is not relevant to the case. They argued that prosecutors were imposing a 20/20 hindsight on Noor's actions, which they said runs counter to the 1989 U.S. Supreme Court decision Graham v. Connor.
MPR News Reporter Jon Collins contributed to this story.