Mike Freeman's shifting rules of evidence when it comes to people of color

Past cases show the Hennepin County attorney changed his standards when he declined to prosecute two cops in the shooting of Jamar Clark.

Past cases show the Hennepin County attorney changed his standards when he declined to prosecute two cops in the shooting of Jamar Clark.

Rachel Wannarka and Jason Sole of the Minneapolis NAACP respond to the lack of prosecution in the Jamar Clark shooting:

On Wednesday, federal authorities declined to charge Minneapolis police officers Schwarze and Ringgenberg with civil rights violations for fatally shooting the unarmed Jamar Clark in the head. U.S. Attorney Luger stated there was insufficient evidence to establish “one of the highest legal standards under criminal law” – namely, that the officers willfully deprived Clark of his Fourth Amendment rights, and that their use of force was objectively unreasonable.

Luger attempted to present this as an inescapable conclusion, as did Hennepin County Attorney Mike Freeman when he announced he would not file criminal charges.

Luger, like Freeman, expressed no curiosity as to why the officers violated policy by neglecting to activate their dashboard camera or body microphones. Luger, like Freeman, credulously deferred to the crafted narratives from the officers while dismissing testimony from twenty eyewitnesses.

Luger, like Freeman, contorted the forensic evidence to defend rather than prosecute the shooting. For example, Clark’s DNA on Ringgenberg’s gun is taken to support the police story, but the lack of any fingerprints from Clark actually argues strongly that the DNA transfer was incidental or indirect.

Luger, like Freeman, wrapped himself in a mantle of “I’m just objectively following the law, folks.”

But these decisions are inevitably influenced by the same bias that pervades the law enforcement and judicial system.

It’s not an incidental fact that Schwarze and Ringgenberg are white and Clark was black, or that most of the eyewitnesses are black, or that this shooting took place in a primarily black neighborhood patrolled by primarily white cops.

Police union leader Bob Kroll gave the game away when he seized the occasion Wednesday to characterize Black Lives Matter as a “terrorist organization” – a false smear – and blamed protesters for “shootings outside the precinct” last November that were actually perpetrated by apparent white supremacists against protesters. Kroll might deploy more incendiary rhetoric than would the cops who elected him and his questionable history, but the whole system of policing in Minneapolis is biased.

The ACLU recently found that black and Native American residents are arrested for low-level offenses at rates 8-9 times higher than for whites. The officers who made those arrests, and the Hennepin County prosecutors who (under Freeman’s authority) sought convictions in those cases, would all say they were just objectively following the law. The statistics prove otherwise.

Minneapolis NAACP President Nekima Levy-Pounds, an attorney and law professor, sees more than sufficient evidence to move the Jamar Clark case forward for a jury to test the plausibility of the self-defense claim raised by the officers. At the same time, she was not surprised by the announcement of no federal charges.

“We are in a land of disparities and a land in which we are treated like second-class citizens,” she says. “No matter how hard we try, no matter how hard we pound the pavement, no matter how much we lift our voices, they don’t want to give us justice.”

Mike Freeman has a carefully cultivated reputation as a Democrat who is tough on crime, a public servant invested in public safety and strong, equitable communities and responsive to his constituents. His job should include supporting and protecting in those people who are marginalized by our society, and holding the powerful accountable when they commit crimes.

In reality, Freeman’s history shows he, like other players in the system, is not free from (perhaps implicit) bias.

We’ve outlined five egregious lies or misrepresentations that formed the basis for Freeman’s justification for declining to bring charges against the officers who shot Clark in the head 61 seconds after encountering him. The non-indictment of Officers Schwarze and Ringgenberg in Jamar Clark’s killing is but one recent example of several cases in which he supported privilege and power at the expense of black, Native American, and transgender people.

Scrutinizing these examples reveals how hollow is the facade of objectively following the law that Freeman and his colleagues adopt. Standards of evidence are shifted and changed in a manner that seems designed to achieve particular outcomes, rather than optimized for justice.

In the Clark case, Freeman disregarded the testimony of more than 20 black witnesses though in the past he has relied on the testimony of a single witness with every reason to lie when it would hurt his record to question that testimony.

In the Clark case, Freeman falsely claimed that inconclusive DNA evidence was “truth serum” proving Clark posed an imminent danger, though in the past he has disregarded and minimized DNA evidence that establishes actual innocence in a case where the victims were Native American.

In the Clark case, Freeman used the fear white officers reported feeling in order to justify Clark’s killing, though in the past he has contended that a black transgender woman’s fear after being assaulted was insufficient to justify an accidental self-defense killing.

Witnesses are considered credible when they back the desired narrative

The Innocence Project of Minnesota features four cases of wrongful conviction on their website. One of them is Sherman Townsend. On August 10, 1997, an intoxicated David Anthony Jones attempted to rape his neighbor, but fled after a struggle with the woman and her boyfriend.

The victims described the assailant as a black man wearing a black shirt and blue shorts, and police picked up Sherman Eliaz Townsend, a black man wearing a blue shirt and green shorts.

Jones came out of his apartment to tell police that he’d nearly been knocked over by a man fleeing the scene. Police conducted a show-up identification. While the woman and her boyfriend could not positively identify Townsend, Jones stated – falsely – that he was “a thousand percent sure” it was Townsend whom he had seen fleeing.

There was no physical evidence connecting Townsend to the home invasion (investigators didn’t even test the duct tape involved for DNA), nor did this crime match the style of Townsend’s admitted previous burglaries.

Jones subsequently signed a statement for a defense investigator that it wasn’t Townsend and testified as such at a pre-trial hearing. Hennepin County prosecutors first offered a four-year plea bargain, which Townsend rejected, proclaiming his innocence, and then pushed ahead to trial anyway, centering their case on the alleged eyewitness testimony of Jones.

Prosecutors apparently did not dig particularly deeply into the background of their key witness, since they failed to note or disclose to the defense that Jones had previous burglary convictions in Illinois, a legally relevant fact of which the jury should have been made aware.

At trial, Jones returned to his initial claim that he had seen Townsend fleeing the scene, and Townsend was sentenced as a “career criminal” to 20 years in prison.

Years later, Jones and Townsend crossed paths again behind bars, after Jones had been imprisoned in 2001 for criminal sexual conduct with minors. Jones admitted to Townsend that not only had his identification of Townsend been false, but also that he was the assailant in the 1997 home invasion.

Working with the Innocence Project of Minnesota, Townsend prepared an appeal. In 2007, Jones testified in court as to his own guilt, including providing details only known to the perpetrator. Townsend’s attorneys argued for a new trial on the basis of Jones having recanted his earlier identification, and introduced Jones’ relevant out-of-state burglary convictions.

By 2007, Mike Freeman was back in office as Hennepin County Attorney, and under his direction the state opposed a new trial, but offered to commute the remainder of Townsend’s sentence if he would drop his petition.

With his mother in failing health (she died two months later), and with little reason to trust a legal system that had failed him for a decade, Townsend agreed to the deal for immediate release. Even after his case against Townsend had completely collapsed, Freeman proclaimed Townsend guilty as he finally walked free: “We believe Mr. Townsend did it. We no longer have the evidence to prove that beyond a reasonable doubt.”

In 2013, Freeman’s office opposed a pardon for Townsend that was supported by Governor Dayton among many others. Because of this, Townsend remains, on paper, criminally guilty for the 1997 actions of David Jones.

When Freeman wanted a conviction in this case, he was happy to push ahead to trial on extremely dubious, inconsistent, and self-interested testimony from an alleged eyewitness who was the actual criminal. Even after all this was entered into the official record, Freeman incredibly continued to proclaim confidence that he’d imprisoned the right person.

In sharp contrast, when Freeman was tasked with evaluating the actions of the officers who shot the unarmed Jamar Clark while Clark was restrained, Freeman disregarded credible testimony from some twenty eyewitnesses, characterizing it as unreliable and contradictory.

In these two examples, witness testimony seems to have been treated as “reliable” when it aligned with Freeman’s apparently desired outcome, rather than based on a consistent standard.

DNA is truth serum, unless it exculpates an inconvenient person

Another example of these discomfiting shifting standards is illustrated by the case of Billy Glaze, who in 1989 was convicted of the horrible sexual assaults and murders of three Native American women: Kathleen Bullman, Angeline Whitebird-Sweet, and Angela Green.

In the absence of any physical evidence connecting Glaze to the crimes, prosecutors relied on dubious witness testimony (one key witness has since recanted; others were jailhouse informants) and were able to convince a jury to send Glaze to prison for life.

Glaze contacted the Innocence Project of Minnesota, which carried out DNA testing on evidence found on or near the victims. Attorney Olga Akselrod told MPR that “in a case like this where not only is it a violent homicide but there's also a sexual assault involved, you would certainly expect to see some DNA from the perpetrator at the scene and we didn't find any DNA from Billy Glaze.”

Instead, the Innocence Project identified another man as a likely suspect. He had kidnapped and raped a Native American woman in 1989 (after Glaze was arrested), his DNA was present on a rape swab of Angela Green and on a cigarette near the body of Whitebird-Sweet, and in 2012 he lied to investigators about having known or had sex with Green. A request for a new trial for Glaze was filed in June 2014.

Despite the DNA evidence exonerating Glaze and incriminating the other suspect, Freeman opposed granting Glaze a new trial. While waiting for his day in court, Glaze died of cancer in December 2015, still behind bars.

The Innocence Project continued its push to clear Glaze’s name even after his death, but Freeman maintained that “his case is over when he died. What he had asked for is a new trial. When you’re dead, you can’t have a new trial.”

This flippant attitude is a dereliction of Freeman’s sworn duty to seek justice, and it potentially places the public, specifically Native American women, in harm’s way from the actual perpetrator.

Native American women experience sexual violence at twice the national average, and see an arrest made in reported sexual assaults less than half as often as when white women are victimized. The Hennepin County Attorney has a particular obligation to protect this marginalized and vulnerable population, and to use all evidence, including the DNA evidence, to bring the real criminal to justice.

When a probable match to Jamar Clark’s DNA was found on the handle of Ringgenberg’s gun, Mike Freeman described it as a “truth serum” that proved Clark grabbed the weapon. Experts disagreed.

For example, Patrick Sullivan told MPR that “it's not a truth serum… I might shake your hand and touch your gun and you never touched the gun but your DNA might end up on the gun.”

Notably, there were no fingerprints from Clark present on Ringgenberg’s gun, and zero witnesses (including the EMTs inside their ambulance) reported hearing Ringgenberg’s self-described yells or screams of “he’s got my gun!”

But when DNA cleared Glaze from having committed the three murders for which he was locked up for life, and additionally identified the likely culprit, Freeman had a different interpretation: “We have now spent tens of thousands of dollars, if not $100,000 plus, on this alleged innocence and it’s gotten nowhere. There’s an old-fashioned statement — enough is enough.”

DNA seems to mean whatever Freeman wants it to mean.

Fear justifies homicide for white officers, but not for a black transgender woman

As detailed by City Pages, CeCe McDonald is a black transgender woman who was walking to the grocery store with friends when they were harassed and targeted with racial and anti-trans slurs by bar patrons, including Dean Schmitz and Molly Flaherty.

Flaherty smashed a glass against McDonald’s face, seriously wounding her, and Schmitz pushed McDonald away from Flaherty and then followed her into the street as she attempted to leave.

Schmitz had fists clenched and was, per the bar bouncer, “shuffling his feet like, you know, something like you would do in boxing.” McDonald grabbed a scissors from her bag to defend herself and Schmitz was stabbed and died.

Freeman said of McDonald’s actions that “you have a duty, when you're not in your home, to flee if possible. The evidence here does not reflect self-defense.”

Freeman considered McDonald’s actions to be not only criminal, he apparently considered them to go beyond manslaughter and to constitute murder, since he charged McDonald with second-degree murder, which carried a sentence of up to 25 years.

Freeman dismissed the fact that Schmitz had a swastika tattoo on his chest, which McDonald’s legal team argued was relevant to Schmitz’s intent in the incident. “She couldn't see it, nor could anyone else. It adds a little bit of sensationalism to the case, obviously,” he said.

The judge ruled on pre-trial motions that the swastika tattoo and Schmitz’s previous assault convictions were not relevant, and precluded testimony about transphobia, but allowed in a previous conviction for writing bad checks against McDonald.

Faced with a harshly unsympathetic prosecuting team and a stacked legal deck, McDonald accepted a plea for second-degree manslaughter and was sentenced to 41 months. With time served and good behavior, she was incarcerated (placed with male prisoners) for 19 months.

Flaherty was also convicted of assault for smashing the glass on McDonald.

When Jamar Clark was restrained on the ground, Freeman credulously accepted the testimony of two police officers that they feared for their lives. When a black transgender woman was targeted based on her race and gender identity, Freeman saw things differently:

“There is no indication, on the facts we know today, that the victim was a threat in any way to Ms. McDonald, other than the fact that he was in the mill of people that occurred when these two groups met.”

It’s no surprise that this biased system failed to deliver justice for Jamar

We’ve seen this scenario of justice denied play out before in the police shooting of Dominic Felder, which has several eerie parallels to that of Jamar Clark.

We know that the Minneapolis Police Department receives an extra layer of protection when they commit crimes against blacks. The blue shield extends well beyond the department and is supported by the Hennepin County Attorney’s office, the Bureau of Criminal Apprehension, and the Department of Justice, who in effect collude with the police.

The way this case was handled only assures officers they will be protected by people with power who operate through a white supremacist lens.

Bob Kroll’s checkered past has been exposed on numerous occasions, but he is protected by privilege, politics, and police. The investigation of the Clark case shows that black lives don’t matter in Minneapolis and that fair process does not occur when officers have killed. We can choose to seek Luger’s proposed “healthy and productive dialogue,” but that alone can’t solve things.

The fixes are not easy. They include better training in recognizing and countering implicit biases for all police and prosecutors, along with the removal of individuals demonstrating explicit bias; transparent tracking and accountability for arrest rates and prosecution rates by demographics; all shootings by police handled by an independent state-level special prosecutor; and a significant increase in the proportion of officers and prosecutors who know and come from the communities that they serve.

The rules must change in order for there to be healthy community-police relations and confidence that prosecutors put justice before privilege. Until then, we who believe in freedom cannot rest.

Jason Sole is the Criminal Justice Reform chair of the Minneapolis NAACP and a criminal justice educator at Hamline University and Metropolitan State University. Rachel Wannarka, Ph.D., is a member of the Minneapolis NAACP Criminal Justice Reform Task Force and St. Paul Federation of Teachers. She is a special education teacher, Boys Totem Town, St. Paul Public Schools.