As with Judge Walmsley in the Ahmaud Arbery shooting trial, Judge Chu appears disinclined to define the critical legal issue in this trial.
Welcome to our coverage of the Kim Potter manslaughter trial over the April 11, 2021, shooting death of Duante Wright in a suburb of Minneapolis, when then-police officer Potter accidentally used her Glock 17 pistol in place of her intended Taser. Today was the first day of the trial proper, with both sides presenting the jury with their opening statements, and the State beginning to present its case in chief and witnesses.
The highlights of this first day of the trial were two-fold.
First, it seems that Judge Regina Chu, much like Judge Timothy Walmsley in the Ahmuad Arbery shooting trial, is unwilling to do the actual job of a judge and provide the jury with a single specific definition of the critical law to be applied to the facts of this case.
Second, defense counsel Paul Engh proved to be extraordinarily efficient at extracting value for the defense narrative from State’s witness Police Officer Anthony Luckey–the officer who failed to handcuff Daunte Wright–especially after a plodding direct and re-direct questioning by ADA Matthew Frank that could be reasonably cited as a driver of suicidal ideation.
I’ll focus on those two highlights at the beginning of this post, then quickly summarize other events–including the testimony of Daunte Wright’s mother–below.
Is Judge Chu, like Walmsley, not willing to make tough calls on law?
Court was late coming into session this morning, apparently because of discussions and debate occurring between the parties and Judge Regina Chu in chambers.
When the court finally came live, more time was spent with the in chambers matters being put into the record. Mostly this involved Judge Chu granting the State’s various requests and denying the defense’s various requests, as was also the pattern when jury instructions and motions in limine were argued this past Monday.
To my legal eye, however, the most important part of this morning’s discussion and debate is what did not happen–Judge Chu, much like Judge Walmsley in the Ahmaud Arbery shooting trial, seems thoroughly disinclined to actually define the law on the critical legal issue in this case.
That critical question is this: Is the State required to prove that Kimberly Potter was aware that she was holding a firearm in her hand in order to prove beyond a reasonable doubt that her conduct in handling that firearm was reckless and manslaughter?
The defense position is that one can’t be engaged in reckless conduct one does not know one is engaged in, because recklessness requires the intentional creation of an unjustified risk, and that can’t be done if you’re not even aware of the risk at all.
The State’s position appears to be something along the lines of arguing that it doesn’t really matter what Potter’s subjective mens rea (state of mind) was in terms of awareness of risk, but rather she need only have intentionally engaged in conduct that an objective third-party would recognize created an unjustified risk, even if Potter herself was unaware of that risk.
Obviously, this is the pivotal issue of the entire trial. If recklessness is defined as the State desires, the State likely achieves a conviction. If recklessness is defined as the defense desires, the defense likely wins an acquittal.
To put it another way, the pivotal legal question the jury is expected to answer has not yet been precisely defined, even as the parties are making their opening statements, the overview of the path –and it’s not the jury’s job to do that defining. The jury is supposed to be the finder of fact. It is the judge who defines the law that the jury is to apply to the facts as the jury believes the facts to have been proven or disproven.
This critical issue was left unaddressed after Monday’s proceedings, and it remains unaddressed even as the parties make their opening arguments to the jury. As a consequence, each side on opening tried to sneak their own answer to this unaddressed legal question in front of the jury–only to raise objections of arguing the law rather than facts from the other side, which objections were appropriately sustained by the court.
The only reason the parties are trying to sneak their legal answers in front of the jury, however, is Judge Chu is failing to do her job as a judge by refusing to provide a single, definitive answer that would bind both parties–much as Judge Walmsley never provided a single definitive answer on the citizen’s arrest issue of “immediate knowledge/presence” in the Ahmaud Arbery shooting trial.
Of course, a definitive answer would anger one side or the other and could provide a concrete basis for appeal and reversal, which trial judges are loathed to risk. But answering the tough legal questions is precisely why we have judges in the first place. If we just needed someone to read ambiguous instructions to the jury, we could simply have a clerk do that.
In any case, here’s this morning’s session creating a record of in-chamber discussions. The critical issue is first raised by the State at the 11:12 mark in this video:
Defense Counsel Paul Engh Scores Big On Cross of Officer Luckey
The State’s second witness of the day was Brooklyn Center Police Officer Anthony Troy Luckey, the officer at the event who was first engaged with, and ultimately failed to handcuff, Daunte Wright.
Although relatively new to the BCPD at the time of this event, and still under the guidance of a Field Training Officer (played in this scene by Potter), Luckey was actually in his third year as an officer, having served briefly in two other departments. As a result, he had made many previous traffic stops by the time he ran into Daunte Wright.
The thing that most struck me about the testimony of Officer Luckey really has little to do with Luckey himself, who was a fairly boring and laconic witness, while at the same time presenting as reasonably competent in his role as a patrol officer (despite the poor arrest of Wright).
What struck me most was the disparity of performance on the part of the prosecution and defense in terms of their efficiency in mining this witness for value to their respective and competing narratives. Recall that the State spent roughly twice as long on their opening statement as did the defense, and it’s not at all clear to me that the State got any greater value from their opening than did the defense.
In the testimony of Luckey, the state spent nearly two full hours–about 110 minutes–on direct and re-direct. In contrast, the defense spent less than 20 minutes on their cross-examination of Luckey.
Despite that disparity, it seems to me that the defense realized far greater value from this witness in terms of the strength of their narrative of innocence than the State realized in a direct/re-direct that was nearly six times as long.
Indeed, at times the State’s questioning of Luckey by ADA Frank seemed nothing short of interminable, and as if it was serving little purpose other than permitting the state to show a large number of various videos from various angles of the traffic stop, Wright’s violent resistance to a lawful arrest, his unintended shooting, and his ultimate felony flight. Here’s a composite of these two videos, and now a composite of these other two videos, and yet another composite of a new combination of videos already shown to the jury, and again, and again–when none of the substantive contents of those videos are really in dispute. It was really rather tiresome.
In contrast, Paul Engh on cross-examination of Luckey scored point after point for the defense–admittedly with the advantage of the party on cross-examination being permitted to ask leading questions. And Engh had clearly spent considerable time and expertise in crafting these particular questions to which he knew he was going to receive a series of simple “Yes” responses from Luckey.
In the interests of time, I’m going to simply paraphrase much of this exchange, but the actual cross-examination is so brief it’s well worth watching yourself, and you’ll find it embedded below:
Engh: Someone on that video said, “Kim that guy was trying to take off with me in the car,” who was that?
Luckey: Sergeant Johnson.
Engh: You were partly in the car, too?
Luckey: From duty belt up.
Engh: What was your intuition when you first saw the car, it’s behavior?
Luckey: High crime area, known for lots of shootings, lots of drugs and guns.
Engh: Substantial number of cars there have guns?
Luckey: Roughly 2 out of every 5 cars, I expect I’ll find a gun.
Engh: You’ve lived in this area your whole life, know it as well as anybody?
Engh: Warrant comes back for a gun offense, concern rises?
Engh: Protective order requested by a female, have to identify female passenger?
Engh: Bench warrant for arrest, can’t just let him go, court ordered his arrest.
Engh: Just the no driver’s license, expired registration, no insurance, that alone, there’s no way you can let him drive away, correct?
Engh: Would you have used Taser if you could have?
Engh: If he flees in vehicle, that’s another felony?
Engh: When fled, pedal to medal, dangerous flight?
Engh: From first resistance at touch of handcuffs, did he ever stop fighting you? Ever just comply?
That was all just great stuff for the defense, and more, and unlike the plodding ADA Frank and ADA Eldridge it was bang-bang-bang, score-score-score.
Here’s that cross-examination of Officer Luckey by Paul Engh:
I’ve already described the direction of Luckey by ADA Frank, which of course took place prior to Engh’s cross-examination above, and I really don’t have much to add to its plodding nature, so I’ll just embed the video of Luckey’s direct here. It’s in two parts because it was so plodding the court insisted on a break partway through.
The worst part for ADA Frank, however, was on his re-direct of Officer Luckey, following the cross-examination by Engh. Seeing how effective Engh’s cross had been really seemed to shake Frank up. His re-direct came across as flailing and meandering, and his desperate resort to leading questions (which are permitted on cross but not on direct or re-direct) led to strenuous objections by the defense that were almost always upheld by Judge Chu–with her tone towards Frank becoming increasingly scolding as he kept up this childish behavior.
It was a bad look for ADA Frank–we’ll have to see in the rest of this trial if it left a mark, and if it’s a portent of what we can expect this trial to look like moving forward.
Here’s that re-direct of Luckey by Frank:
Judge Chu Welcomes Jury, Provides General Instructions
Preceding all the witness testimony, of course, the jury was brought into court for the first time as a seated group, and Judge Chu provided them with the standard guidance and instructions generally given to jurors in criminal cases. There was nothing much notable here, but I’ll share the video with you for purposes of completeness:
State Opening Statement
The State’s opening statement was presented by Assistant DA Erin Eldridge, who until this point in this trial has been largely sitting quietly at the State’s table. It was, as one might expect from Eldridge, big on appeals to emotion. She tried to sneak in as a statement of law that the State was not obliged to prove that Potter knew she had a gun in her hand, which drew the predictable objection, sustained by Judge Chu–who nevertheless continues to refuse to state whether this is or is not the legal question to which the jury will be expected to apply the facts to arrive at a verdict.
There was a great deal of talk of Potter having a great deal of training, much of intended to avoid precisely the risk of using the wrong weapon, especially given her long experience as a police officer–and all that’s true enough, but doesn’t tell us whether Potter ought to have mere civil liability for her error, or criminal culpability, or neither under the totality of the circumstances and given Daunte Wright’s own contribution to the need to resort to force.
I didn’t make much of this final point at the time, but Eldridge spoke for a full hour in her opening statement–more than double the time spent by the defense on their own opening. After observing the later testimony of State’s witness Officer Anthony Luckey, however, and contrasting the very lengthy direct and re-direct by Luckey by the State with the relatively concise and efficient cross-examination of Luckey by the defense, I’m beginning to wonder if this greater apparent efficiency of the defense will be a hallmark of this trial.
Defense Opening Statement
The defense opening was about half the length of the State’s, and its core themes were first that it was Duante Wright himself who compelled the use of force upon him, that his conduct created an imminent threat of death or serious bodily injury particularly to Officer Luckey and Sergeant Johnson, but also to the general public if violent flight in a vehicle were to occur, that Potter is only a human being and human beings make mistakes and a genuine mistake is not grounds for criminal liability, and finally and almost in passing that Potter would have been fully entitled to intentionally use deadly force upon Duante Wright under the facts of this case, so how could we imprison her for making a good faith effort to use what she believed would be only non-deadly force?
State’s First Witness: Katie Bryant, Daunte Wrights’ Mother
The State’s first witness after opening statements was Daunte Wright’s mother, Katie Ann Bryant. Her testimony seemed intended primarily to provide what Minnesota refers to as “spark of life” evidence about how wonderful Daunte Wright was as a son and new father, and to appeal to the emotions of the jury.
Naturally, one can have nothing but sympathy for a parent who has lost a child under any circumstances, so certainly I don’t blame Bryant for her sorrow.
Also, somewhat surprisingly Bryant did have some actual first-hand knowledge of the event, in a remote sense, because she was on the phone with Wright for part of his traffic stop, failed arrest, and felony flight from the scene.
I did find it notable–and the defense made sure to note–that when Bryant appeared at the police station to provide a statement of what she knew about the events, she showed up with three retained attorneys, including representatives from the firm of Benjamin Crump, already planning a large civil suit.
Here’s the testimony of Katie Ann Bryant, Daunte Wright’s mother:
Bryant’s testimony would be followed by that of Officer Luckey, the second and final witness of the day, whose testimony we’ve already addressed above.
Tomorrow: Daunte Wright Shooting Trial Day 2 LIVE
Be sure to join us at Legal Insurrection tomorrow morning for our ongoing LIVE coverage—including real-time commenting and streaming of the trial proceedings, and then again at day’s end for our analysis of the day’s events.
You carry a gun so you’re hard to kill.
Know the law so you’re hard to convict.
Attorney Andrew F. Branca
Law of Self Defense LLC
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