Judge denies defense request for mistrial.
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 second day of the trial proper, and remarkably enough the State decided to spend nearly the entirety of the day focused not on the circumstances of Kim Potter’s unintentional shooting of Daunte Wright, but rather on the car accident that resulted from Wright’s violent and high-speed flight from the traffic stop where he’d just violently fought lawful arrest.
For context, immediately after Wright was unintentionally shot by Potter he fled the site of the traffic stop in his Buick at speed. He didn’t make it far, however, as he sped over a median divider between opposing lanes of traffic and slammed head-on into a vehicle containing an 80-years-old married couple, all within about a block of the traffic stop.
It should go without saying that nothing about the later car crash could have anything to do with the question of whether Potter’s earlier unintentional shooting of Wright was reckless in the legal sense of that term, and grounds for a manslaughter conviction.
Of the nine witnesses the State called today to testify only the first—Alayna Albrecht-Payton, Wright’s purported girlfriend and the passenger in the car with him—had any first-hand knowledge of the events of the traffic stop. She was also, of course, present at the sight of the car crash, as well, in which she suffered not inconsiderable injuries.
Simply listing the other eight of today’s witnesses and their role at the scene tells the story of the State’s near-total focus on the crash stop, at which the defendant Potter had no role whatever, rather than the traffic stop, at which Potter had unintentionally shot Wright.
Witness #2: Patricia Lundgren, elderly driver of the car struck by Wright, with her husband as a passenger
Witness #3: Denise Lundgren Wells, daughter of the elderly Lundgrens, who was neither at the traffic nor crash stop
Witness #4: Kerry Blanski, who lives in home in front of which crash occurred
Witness #5: Officer Alan Salvosa, in squad car immediately behind Lundgren vehicle when struck–at least he actually saw Wright flee the traffic stop
Witness #6: Officer Daniel Irish, arrived at the crash scene after the fact
Witness #7: Officer Jeff Sommers, arrived at the crash scene after the fact
Witness #8: Paramedic Michael Morelock, arrived at the crash scene after the fact
Witness #9: Paramedic Dustin Johnson, arrived at the crash scene after the fact
Not only did virtually none of these witnesses have any personal knowledge of the events surrounding Potter’s unintentional shooting of Wright, but the manner in which their testimony was offered was offensively cumulative, particularly with respect to the police officers.
Such offering of cumulative evidence is a trick I’ve seen prosecutors use in many cases, including these same prosecutors in this same courtroom in the trial of Derek Chauvin. The nature of the trick is to take a single piece of evidence and use legal sleight of hand to make it appear to be many pieces of evidence. This way the sheer quantity of evidence on that issue appears larger than is actually the case.
It’s a trick that tends to be used when a prosecutor believes he doesn’t actually have the evidence he needs to obtain a conviction on the legal merits.
In the Derek Chauvin case, for example, these prosecutors, ADA Matthew Frank and ADA Erin Eldridge had virtually every bystander observing George Floyd’s arrest from the sidewalk come into court to testify—even though they were all standing beside each other and saw effectively the same thing. Instead of the jury hearing the “bystander narrative” once, however, they got to hear effectively the same narrative again, and again, and again, and again, and again.
We saw ADA Binger and ADA Kraus do much the same in the Rittenhouse trial. They took a single piece of evidence, the drone video, and turned it into many pieces of evidence. First, they had the raw video itself—which, of course, they presented to the defense in low-resolution form.
Then Binger and Kraus created an “enhanced” version of that same video. Then they created a “slow-motion” version of that same video. Then they created a “zoomed in” version of that same video. Then they prepared individual photos of screen captures from that same video. Then they prepared “enhanced” individual photos of those screen captures. And just like that, one piece of evidence was made to appear as if it were a plethora of evidence.
In this trial of Kimberly Potter, ADA Frank and ADA Eldridge (assisted substantially today by new-to-the-camera ADA Jason Larson) used a similar trick around evidence of the car crash.
They’d bring a police officer witness to the stand, and have him testify verbally about his personal knowledge of the crash. Fine. Then they’d show the video from his body camera, and again have him repeat the same testimony, this time by effectively narrating his body camera footage. Then they’d have individual photo screen captures pulled from that same body camera video.
But, of course, the officer doesn’t just have his body camera, there’s also the dash camera in the car. So now the jury is shown composite versions of the same video, showing various combinations of body and dash camera.
But wait, there’s more! Witness Blanski, who simply lived in the house in front of which Wright ultimately crashed, had a security camera on her home that captured an extremely obscured video of the crash. Let’s produce some composite videos that combine her video along with the body camera and dash camera video from the police!
And we’re far from done, even so! Because there were perhaps 10 to 15 officers on the scene, every one of which had their own body camera and dash camera, all of which captured an essentially identical version of the aftermath of the car crash. So let’s show all that footage, as well, both individually and in various composite forms!
The State’s essential strategy here appeared to me to be simply to show the jury Daunte Wright’s body being pulled from the car again, and again, and again, and again, and again, and again until the jury feels compelled to convict defendant Potter of something.
Naturally, the defense objected strenuously throughout the day to this cumulative evidence, leading to numerous lengthy sidebars. Those are off-camera, of course, so I was not able to observe what arguments were made by the defense and the State. Each time, however, Chu would return and announce that the defense objection was sustained in part and overruled in part, which suggests to me that Chu was giving the State guidance to throttle back on the cumulative evidence without unduly impairing their ability to present the jury with their theory of the case.
Shortly after each such sidebar, however, the State would again be pushing hard on the boundaries of cumulative evidence, the defense would again object, and there would be another sidebar on the matter.
At one point, right after one such sidebar, ADA Eldridge once again sought to introduce photographs that were clearly cumulative of already presented evidence. The defense objected, Judge Chu noted that the photos appeared to violate her just made ruling restricting cumulative evidence, and Eldridge’s counter-argument was to claim that she’d thought the judge’s ruling applied only to cumulative video evidence, not to cumulative photographic evidence. Ridiculous.
Indeed, so cumulative was the testimony from the State’s witnesses, especially later in the day, that the defense didn’t even bother to subject the last three State’s witnesses to cross-examination.
Finally, after the last witness of the day was done, and the jury dismissed for the day, defense counsel Paul Engh formally placed his objections to this cumulative evidence on the record, noting that almost none of it was relevant to any of the elements of the crimes charged and that therefore it was purely prejudicial—indeed, the State had just subjected their client to a full day of almost purely irrelevant and prejudicial testimony. On those grounds, he formally requested that Judge Chu grant a mistrial.
The State’s response, made by ADA Frank, was ridiculous, but enough of a fig leaf of an excuse to suggest an absence of malice, and preclude Chu from seriously considering the mistrial request.
Frank reminded the court that they had filed notice to seek a longer-than-usual sentence for Potter, should she be convicted, because of various Blakely factors. These include factors such as the underlying crime having been committed by a police officer in uniform, having been committed in front of child witnesses, having endangered an excessive number of people, and so forth. Some of these factors obviously would apply in this case upon a conviction, if only because Potter shot Wright while on duty as a police officer in uniform.
In fact, you may recall that Derek Chauvin was subject to a similar Blakely sentencing enhancement following his conviction.
The key, however, is that the question of a Blakely sentencing enhancement is a distinct legal finding from a question of guilt. Sentencing is obviously relevant only if guilt is first found, so Blakely is only relevant if guilt is first found. Indeed, while it is the jury that first determines guilt, it is the judge in this case who will determine whether the State has demonstrated that Blakely factors apply.
In response to the defense request for a mistrial based upon a full day of irrelevant and prejudicial testimony, Frank responded that all that evidence was relevant—not to the criminal charge itself, but to these Blakely factors.
It’s a deceptive argument, even if technically true. Because it is the judge, not the jury who makes a Blakely finding, evidence in support of Blakely factors is properly made only to the judge, and not to the jury.
Indeed arguing Blakely evidence to the jury, especially in a large and cumulative fashion, obviously has a high risk of confusing the jury into thinking that perhaps the Blakely evidence is relevant to their specific job of determining guilt on the criminal charge.
Indeed, I expect that is precisely what the State is hoping for.
Also, nothing like a full day’s worth of testimony is required to establish Blakely factors, especially given that there’s always necessarily already been sufficient evidence offered to presumably support a finding of guilt.
In the Derek Chauvin trial, for example, the Blakely evidence was largely mentioned only in passing, and then the actual Blakely legal argument was made to the judge in the form of a written motion to the court, not in the form of argument before the jury. That is the appropriate process, not what the State did here in court today.
Ultimately, Judge Chu denied the defense motion for a mistrial on these grounds, reminded everyone that it was the court and not the jury who would determine Blakely factors, and dismissed the court for the day.
Because the testimony today was largely irrelevant to the actual criminal charges, I don’t really have much analysis to offer on it. I will, of course, provide the segmented videos of each witness’ testimony below.
Alayna Albrecht Peyton: Wright’s girlfriend, the passenger in the car
Patricia Lundgren: Driver of car struck by Wright’s vehicle
Denise Lundgren Wells: Daughter of Patricia, not at either scene
Kerry Blankski: Owner of home in front of which car crash occurred
Officer Alan Salvosa: Observed car crash immediately in front of his squad car
Officer Daniel Irish: Arrived at crash scene after the crash
Officer Jeff Sommers: Arrived at crash scene after the crash
Paramedic Michael Morelock: Arrived at crash scene after the crash
Paramedic Dustin Johnson: Arrived at crash scene after the crash
Tomorrow: Daunte Wright Shooting Trial Day 3 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.
Incidentally, Judge Chu has decided to start court an hour later than usual tomorrow, so proceedings are expected to kick off at 10 am CT, rather than the usual 9 am CT.
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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