By Rochelle Olson
Star Tribune
MINNEAPOLIS, Minn. — The first day of the trial in a wrongful death lawsuit against a Minneapolis police officer and the city ended dramatically Tuesday when a judge chastised a lawyer for projecting a picture of Fong Lee’s bloody, bullet-riddled body on screens throughout the St. Paul courtroom.
At the sight, many of Lee’s family members broke into loud sobs. U.S. District Judge Paul Magnuson ordered the family’s lawyer, Michael Padden, to take down the photo, saying it hadn’t been admitted into evidence. Padden said he’d put up the picture by mistake.
But Magnuson wasn’t satisfied with that explanation, and as soon as the jury left the courtroom, he showed his displeasure.
He told Padden that springing the photo on the family and jury was “one of the most offensive” acts that he had seen in a courtroom. “I’m very, very disappointed,” the judge said.
Padden didn’t respond, either in court or to reporters later.
It was a stunning moment in a day of sometimes confusing testimony in a trial that pits police, who say the shooting was justified, against Lee’s family, who say surveillance video shows Lee was unarmed when officer Jason Andersen killed him.
Andersen shot Lee eight times on July 22, 2006, during a foot chase on the grounds of Cityview Elementary School in north Minneapolis. Police say they found a pistol three feet from Lee’s left hand. Andersen told investigators that he fired after Lee refused to drop the gun and appeared to be turning to shoot. Lee’s family says police planted the gun, which could be seen in the photo Padden showed.
Parts of the pursuit were captured on school surveillance video, and jurors saw key parts of it Tuesday, following opening statements and the commencement of testimony.
Vajying Hou Vue, the plaintiffs’ first witness, testified that he was near the school that day and that he saw police first use their car to chase Lee and his friends. Under questioning from Padden, he said Andersen’s police car knocked Lee off his bike.
But Vue contradicted himself after Assistant City Attorney Jim Moore then slowly played video showing the police car several feet behind Lee, as Lee appeared to get off his bike. “It’s true, is it not,’' he said, “that Fong Lee was not knocked off his bike by the squad car?”
Vue said, “Yeah.”
Richard Diercks, who owns Plymouth-based Forensic Video Inc., introduced into evidence seven enhanced photos from 13 seconds of the video. Those photos captured Lee rounding a corner of the school with Andersen behind him.
Diercks said he modified the images, enhancing contrast and shadows. “Did you take anything away from the images?” Padden asked. Diercks said, “No.”
In a pretrial motion, the plaintiffs asked that Diercks be allowed to testify about his conclusion that Lee didn’t have a gun in his right hand. Magnuson ruled that jurors can decide for themselves.
Tale of two guns
The city says a .380-caliber Russian-made Baikal handgun was found near Lee’s body. To the witness stand, Padden called Dang Her, who reported the gun stolen in February 2004.
Her testified through an interpreter that he’d kept the gun in a sock inside a purse in a closet and that it was the only thing stolen in a burglary. He said that when the gun was stolen, he didn’t know the serial number.
He testified that soon after he reported it missing, Lt. Mike Fossum called him and said police had recovered the gun but had to keep it to prosecute another case.
Padden is trying to show that the gun was in police custody since then. The city contends that misunderstandings and paperwork mistakes by police only made it later appear to be in custody. Actually, police contend, the gun recovered from a snowbank in February 2004 was a 7.65 caliber FNH, not Her’s gun.
“Other than the fact that [Fossum] told you, you had no way to know the gun he had was your gun?” Moore asked. Her responded: “All I know is that he said it was mine.”
Fossum testified he had not seen the Baikal until it was handed to him in court Tuesday. But Padden repeatedly asked about his report from 2004, in which he wrote that officer Tony Adams “brought the gun to me.”
Fossum maintained that Adams brought the gun to the precinct, but that he -- Fossum -- never saw it.
“I was told by officer Adams that he ran the serial number, and it traced to Dang Her,” Fossum said.
Shortly after the Lee shooting, Fossum filed an update to his earlier report about the Her gun, to clarify the discrepancy, he said.
Moore said: “Let’s be up front about this. Did you make a mistake when you told Dang Her his gun was recovered?”
Yes, Fossum said.
Moore also noted that Adams’ report from 2004 indicated the gun he found was rusty, as the FNH is. The Baikal found by Lee’s body was not rusty, Fossum testified as he looked at the guns in front of him.
Andersen and his partner that day, state trooper Craig Benz, were scheduled to testify today.
Copyright 2009 Star Tribune