Prosecutors: Noor's silence should be admissible as evidence in upcoming trial

Attorneys in the upcoming murder trial of former Minneapolis police officer Mohamed Noor sharpened arguments and traded barbs in several court filings Monday.

Key evidentiary issues that prosecutors and defense attorneys are battling over include Noor's refusal to speak with a state investigator about the fatal shooting of Justine Ruszczyk Damond and his pre-employment psychological exam.

Attorneys are also debating the admissibility of a defense use-of-force expert who staged a dramatic courtroom demonstration at the unrelated 2017 trial of then-St. Anthony police officer Jeronimo Yanez, who was eventually acquitted for fatally shooting Philando Castile.

In one memorandum, assistant Hennepin County attorneys Amy Sweasy and Patrick Lofton accused Noor's attorneys of "grossly and repeatedly" misrepresenting some of the prosecution's evidence.

Noor's attorneys, Thomas Plunkett and Peter Wold, were equally aggressive in their pushback.

"The State attempts to bootstrap inadmissible evidence into this trial by calling it character evidence despite the fact that the [psychological exam] does not offer any insight into Officer Noor's character," the defense attorneys shot back.

In July 2017, Noor was a passenger in a squad responding to Damond's 911 call about a possible rape behind her south Minneapolis home when he fired through the driver's side window, killing her. The case drew widespread attention, including from Damond's home country of Australia.

Noor was charged last March in Hennepin County District Court with third-degree murder and second-degree manslaughter; a count of second-degree murder with intent was added late last year.

Half-a-dozen legal memorandums filed Monday in response to earlier motions began to set the stage for the April 1 trial that will be watched across the world.

Prosecutors argued that Noor's pre-arrest silence should be admitted in court if he were to testify.

"…The defendant had a choice on whether to tell his side of the story during a voluntary interview in a noncoercive setting," prosecutors wrote. "His decision not to do is relevant."

Noor's attorneys previously argued that he had invoked his Miranda rights to remain silent, and that admitting the evidence would be a violation of due process.

But prosecutors argued that Minnesota Bureau of Criminal Apprehension (BCA) special agent Doug Henning never read Noor his Miranda rights in the immediate aftermath of the shooting because Noor was not in custody. Henning asked Noor's attorney multiple times for a voluntary statement, they said.

Noor, through Plunkett, declined each time, prosecutors wrote, and only explicitly invoked his constitutional right to remain silent several months later in response to a grand jury convened by the Hennepin County Attorney's Office.

Noor's silence can only be barred from trial had he first been read his Miranda rights, said the prosecution memorandum. State law and U.S. Supreme Court precedent allow using pre-arrest silence to impeach a defendant who testifies on the witness stand, they argued.

Sweasy and Lofton also argued that a state expert's "rescoring" of a psychological exam Noor took in 2015 to become an officer should be admitted at trial.

The state's expert, Dr. Tricia Aiken, rescored Noor's exam and found the same results as the findings from 2015, prosecutors said. Aiken had no other role in evaluating Noor's fitness as an officer, they said.

"The defense either does not understand this fact, or worse, is deliberately trying to attack Dr. Aiken, knowing that the claims they are making to do it are false," said the prosecution memorandum.

Plunkett and Wold objected to admitting any evidence from Noor's 2015 psychological exam, accusing prosecutors of trying to introduce "an out-of-context portion" of an overall psychological evaluation.

The test is "outdated," didn't account for racial bias and isn't a measure of character, defense attorneys wrote.

Kapelsohn's testimony was hotly debated. Prosecutors previously sought to exclude or limit his testimony at trial, arguing that he had never served as an officer and was "insufficiently qualified to opine" on use-of-force.

Kapelsohn captured the courtroom's attention at the Yanez trial when he took to the witness stand and placed a replica of Castile's handgun into the pocket of a pair of shorts identical to the ones Castile was wearing when he was shot.

The gun filled the pocket, its butt protruding visibly. Kapelsohn told the court that Yanez, who claimed self-defense, would have "easily" seen the gun while standing outside of Castile's car during the fatal traffic stop.

"The State has good reason to shade the law in its motion to exclude the testimony of Mr. Kapelsohn, his 'admittedly impressive resume' shows he is unequivocally qualified to testify as an expert in this case," defense attorneys wrote in response to the prosecution's stance.

Hennepin County District Judge Kathryn Quaintance is scheduled to hear arguments on the motions this Friday.

Noor hasn't entered a plea on the charges, but has indicated that he will plead not guilty by reason of self-defense. He remains free on bail.

Quaintance also issued an order prohibiting all cameras from Friday's hearing and the trial at the request of the defense and prosecution. Both sides of the case issued a joint plea to bar camera access after 17 media requests were filed with the court.

Chao Xiong • 612-270-4708

Twitter: @ChaoStrib