Spends another day in plodding, pointless testimony. Prosecution seems to be stalling for time, but why?
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 third day of the trial proper, and although today the State worked through three more of its key witnesses in its case in chief it nevertheless appeared to move no closer to showing the court, the jury, or the public any actual evidence of reckless manslaughter on the part of defendant Kim Potter.
The story can be found in the amount of time the State and defense spent in direct and cross-examination, respectively.
The State spent just over two hours collectively on direct examination of its three witnesses Sergeant Mychal Johnson, Acting Chief Gruening, and BCA Special Agent Mike Phill.
In contrast, the defense spent only about 20 minutes on cross-examination. Total. For the day.
Indeed, the last two witnesses, Acting Chief Gruening and SA Phill, were not cross-examined by the defense at all. This reflects how little substance Gruening and Phill had to add to the legal issues in this case, which is not surprising given that both of them arrived on the scene only after all the action was over. In theory, Gruening could perhaps have provided some insight into Potter’s training, but no such questions were asked of him on direct.
Sergeant Mycal Johnson
Sergeant Johnson’s testimony ought to have been of greater import, given that he was the third officer, in addition to Potter and Officer Luckey, who directly struggled with Duante Wright at the traffic stop where Potter would shoot Wright—and it was of greater import, but not by much, and not in the sense of advancing the State’s theory of the case.
Sergeant Johnson was the duty sergeant on shift that day, and Potter’s superior officer. Potter, of course, was the direct superior of trainee Officer Luckey. It is noteworthy that since this shooting event, and the announcement of Potter’s prosecution, Johnson had left his position with the Brooklyn Center Police Department and taken a senior law enforcement job as a Major in a local Sheriff’s Department.
Sergeant Johnson Direct Examination (1 hour 10 minutes)
The direct examination of Johnson was conducted by ADA Matthew Frank in his usual slow and plodding style, little of which was substantive or providing of insight to relevant issues in the case.
The only interesting portion of the direct testimony of Johnson was the showing of Johnson’s body camera video of the Johnson and the other two officers struggling with a Duante Wright violently resisting lawful arrest, culminating in the gunshot and Wright’s high-speed, if short-lived, flight from the scene in his car.
When Wright began violently fighting arrest and struggling to regain his position in the driver’s seat of the car, Johnson opened the passenger side door of the car and reached across passenger/girlfriend Albrecht-Payton to place his right hand on the gear shift to keep it in park and his left hand for the keys to prevent their operation. Johnson would later shift his left hand to Wright’s right arm, to try to compel compliance with arrest.
While Johnson had his right hand on the gear shift to lock in the parked position, Wright’s own hand fought to put the car into gear—this while both Johnson and Luckey had the upper half of their bodies inside the vehicle.
Frank asked Johnson whose hand was near Johnson’s on the shift lever, and Johnson answered that was Wright’s hand. He appears to have been trying to shift the knob, and you prevented him, asked Frank? Yes, replied Johnson.
Frank asked Johnson what he thought Wright was about to do in that moment, and Johnson answered “drive away”—obviously, any such action by Wright in the moment would have risked immediate death or serious bodily injury to both Johnson and Luckey, and perhaps also Potter.
It was only when Potter yelled “Taser! Taser! Taser!” that both officers pulled back sharply to avoid getting shocked themselves. Immediately following was the gun shot, then Wright operating the vehicle to flee at speed the one block to where he crashed.
Johnson’s body camera video shown in court also showed the distraught Potter in the aftermath of the flight of the car. At one point Potter says, “I’m going to jail!” after which Officer Luckey assures her, no you’re not, and Johnson tells her, “Kim, he was trying to take off with me in the car!”
At this point, Frank rather despicably tries to bring up that Potter requested her union representative be informed about her shooting of Wright. She did this, of course, because the police union would direct a lawyer to her defense. This was an effort by the State to suggest to the jury that Potter had immediately “lawyered up,” an impermissible reference to her assertion of her 6th Amendment right to counsel. The defense objected, and Judge Chu sustained the objection.
Johnson also described how at one point he had taken Potter’s pistol to secure it as evidence, and provided her with his own handgun, placing hers in his holster. Shortly thereafter he’d “borrow” back his pistol, unload it of ammo, and place it back in Potter’s holster. He would later ensure that Potter’s pistol was provided to the agents of the Bureau of Criminal Apprehension (BCA, the state “FBI” of Minnesota) who would be taking over this critical incident investigation.
At that point, ADA Frank was done with direct—little substantive information for an hour and ten minutes of direct examination.
Sergeant Johnson: Cross-Examination (20 minutes)
After the morning break, defense counsel Earl Gray stepped up to conduct cross-examination of Sergeant Johnson, a process which would consume only 20 minutes, and which would prove far more productive and efficient than had Frank’s direct of Johnson.
As Potter’s supervising officer for several years, didn’t you consistently grade her job performance as exceeding expectations? Johnson had. She went above and beyond normal activity for a patrol officer? Yes. She worked with victims of domestic victims, was a casket carrier for officers killed in the line of duty? She did and was. Any ever complaint of Potter using excessive force? No.
You knew Potter and Luckey were seeking to arrest Wright on an arrest warrant for a gun crime and also needed to confirm the identity of the female passenger to ensure it was not the woman who had taken out the restraining order against Wright? Yes. Knew also there was marijuana residue in the car? Yes.
What did the weapons violation tell you? That Wright had had a gun before, might have one again now. Illegally? Yes.
From the time you informed Wright he was under arrest to the time he started fighting that arrest was about 13 seconds? Yes. And it’s six seconds later that Potter first says she’ll Tase him. Yes. Seconds later, I’ll tase you, again. Yes. Three seconds later, she fires what she thinks is a Taser? Yes.
At any time did Wright simply comply with arrest and stop fighting? No.
You heard “Taser! Taser! Taser!” and backed out of the car. Yes. As soon as you got out of the car, the car took off like a jet, quite fast? Yes, it took off quick.
What’s an officer supposed to do when arresting a suspect on a weapons warrant and trying to find out about a protection order? We’re supposed to put the suspect under arrest. And if they try to get away, use force to effect the arrest? Yes.
If Wright had taken off with you in the car, the likely outcome? My serious injury or death. In that case, with an officer in your position, with Potter trying to stop Wright, would it be fair for Potter to use a firearm to stop Wright? By state statute, yes. By statute, one can use deadly force to avoid death or great bodily harm? Yes. You’re aware of that statute? Yes.
And that was it for the cross-examination of Johnson by Gray.
Sergeant Johnson: Re-Direct (12 minutes)
When ADA Frank came back on re-direct, he appeared to be somewhat frantic. First, he tried to suggest that Potter firing the shot—unintentionally, remember—had endangered the life of Johnson himself. Then Frank described the hollow point ammunition fired by Potter as if it had malicious intent—even though Potter has no choice in the ammunition she carries on duty, as it is issued to her by her department.
Frank then asked the “The Hangover” movie question of “but did you DIE!” by asking Johnson, were you dragged? Were you hurt? Did Wright strike you? Did the passenger strike you? Did Wright grab you? Did you see a weapon in the car? None of that had happened, of course, but the law says that defensive force is permitted to avoid harm in the first place, not merely to act after harm has been suffered.
Frank then suggested that the loud sound of the gunshot had debilitated Johnson’s ability to do his job, which Johnson denied.
Frank began to wrap up his re-direct by resorting to pure snark, asking whether Potter exceeded expectations as an officer by drawing her gun instead of her Taser. The defense objected, and Judge Chu sustained.
Finally, Frank seemed to appear to be impeaching his own witnesses, by asking questions that elicited that Johnson liked and admired Potter, and considered her a good officer.
Sergeant Johnson Re-Cross (45 seconds)
On re-cross, Gray asked Johnson if it wasn’t true that the hollow point bullets were designed to stay inside the target body so they wouldn’t over-penetrate and strike a bystander, and Johnson answered that they were.
Sergeant Johnson: Re-re-Direct (2 minutes)
Then Frank came back on re-re-direct to ask whether hollow point ammunition might affect the damage the round causes, and Johnson confirmed it could. Frank also sought to suggest that Potter’s firing into the Wright vehicle was in violation of policy, but the defense objected this was outside the scope of questioning at this point, and Chu sustained.
Sergeant Johnson: Re-re-Cross (22 seconds)
Finally, on re-re-cross Gray asked if at the time Potter shot Wright his vehicle was in motion, and Johnson answered that it was not.
And that was all there was for former Sergeant Mychal Johnson. As has been the pattern so far through the State’s presentation of its case in chief, the defense got far more value out of roughly 20 minutes of cross-examination than the State was able to get in nearly an hour-and-a-half of direct questioning.
Acting Chief Tony Gruenig
The next State’s witness was Acting Police Chief Tony Gruenig of the Brooklyn Center Police Department, who took over right after this event when the then-sitting Police Chief left the department along with Kim Potter herself in the political turmoil that followed.
The direct examination of Gruenig added nothing of apparent value to the State’s case in chief, as he arrived on the scene only after all the shouting was over, and that same day handed over the case to the Bureau of Criminal Apprehension.
Indeed, so pointless was Gruenig’s testimony that the defense did not even bother to cross-examine him.
BCA Special Agent Mike Phill
The final State’s witness of the day was Bureau of Criminal Apprehension Special Agent Mike Phill, who took over the investigation of this critical incident case from the Brooklyn Center Police Department.
As with Gruenig, the direct examination of Phill added nothing of apparent value to the State’s case in chief, and proved so pointless that once again the defense did not even bother to cross-examine this witness.
Monday: Daunte Wright Shooting Trial Day 4 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, starting at 9 am CT, 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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