Most Read
Image 01 Image 02 Image 03

Daunte Wright Shooting Trial Day 7: Defense Experts Testify Use Of Gun, Not Just Taser, Justified – Potter to Testify Friday

Daunte Wright Shooting Trial Day 7: Defense Experts Testify Use Of Gun, Not Just Taser, Justified – Potter to Testify Friday

Late twist in the case, defense asserts that even if Kim Potter intentionally used her gun, rather than by mistake, it would have been justified to save a fellow police officer partially leaning into the car who would have been seriously injured or killed had Daunte Wright driven off.

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 unintentionally used her Glock 17 pistol in place of her intended Taser.

Today was the seventh day of the trial proper, and a very good day for the defense, indeed, with the arguable exception that the defense’s predictable motion for acquittal was as predictably denied by the court.

Next, we had testimony from the defense’s excellent use-of-force expert, also from Potter’s former police chief, and finally from four character witnesses.

With testimony completed for the day, the defense created a record outside the hearing of the jury of many of Duante Wright’s bad acts, evidence that the judge had declined to admit into evidence on character grounds.

Finally, the judge noted she’d be finalizing jury instruction this evening—and, importantly, these would include an instruction on the authorized use of non-deadly force.

It is noteworthy that the defense has only two more witnesses it intends to call—its “slip and capture” expert Dr. Laurence Miller, and the defendant Kim Potter herself.  As a result, testimony in this trial should be completed relatively early in the day tomorrow.   After that all that is left are the instruction of the jury, closing arguments, and finally jury deliberations and the delivery of a verdict.

Overview

The day began with the defense beginning with a motion of acquittal on the grounds that no reasonable jury could return a verdict of guilt based on the State’s rather incoherent case in chief.  This motion for acquittal was, unsurprisingly, rather summarily denied by Judge Chu—such motions are routinely made at this stage of a trial, and as routinely denied.

Then the State promptly rested, and the defense finally began its case in chief.

The defense led off with its first witness, the extremely capable and impressive defense use-of-force expert Stephen Ijames, who provided powerfully favorable opinion testimony for the defense.

Next up was more very favorable testimony from former Police Chief Gannon, who had been forced to resign along with Potter following the Wright shooting and the nights of riots that followed.

The day wrapped up with four relatively quick witnesses who were largely or entirely character witnesses for the defense:  former fellow officer Colleen Friecke, neighborhood friend Hall, former Potter supervising sergeant Roth, and former fellow officer Smith.

It shouldn’t matter—this is just the world we live in today—but both Hall and Smith appear to be men of color, which shows good judgment by the defense in terms of possible perception by the jury. That said, although this case was presented as “white cop shoots young black man” in the media, not a word about race was said in the course of the trial itself.

With testimony completed for the day, the defense created a record outside the hearing of the jury of many of Duante Wright’s bad acts, evidence that the judge had declined to admit into evidence on character grounds.

Finally, the judge noted she’d be finalizing jury instruction this evening—importantly, Judge Chu also informed the parties that she planned to add an instruction on the authorized use of non-deadly force to supplement to already agreed to parallel instruction on authorized use of deadly force.

Defense Motion for a Mistrial Denied, & More

The day’s proceedings began with the defense motion for a judgment of acquittal on the grounds that no reasonable jury could return a verdict of guilt based on the State’s rather incoherent theory of the case.

At times the State has argued through its witness testimony that a Taser would have been appropriate (Officer Luckey), other times that it would have been inappropriate (expert witness Stoughton), sometimes that deadly force would have been appropriate (Sergeant Johnson), other times that it would have been in appropriate (Stoughton).

ADA Matthew Frank naturally argued against the motion, although in a rather disingenuous way.  Frank essentially argued the concept of recklessness as that term is used in plain English—that Potter’s unintentional use of a gun instead of a Taser was simply reckless conduct.

But that’s not what recklessness means as a legal term of art.  What Frank describes is properly understood as a mere mistake. Recklessness requires intentionally creating a deadly force risk and ignoring that risk—there’s no evidence here that Potter intended to create a deadly force risk.

Remarkably, Judge Chu herself observed that there aren’t really any meaningful factual disputes in this case—and I would largely agree. Of course, in that case, there would be seem to be no need of a jury at all, as the jury’s role is to settle factual disputes.  If there are no facts in dispute, then this is purely a legal matter, and Judge Chu is supposed to be the finder of law.

In any case, Judge Chu denied the motion for acquittal, so the show was to go on.

More favorably for the defense, Judge Chu informed the parties that she would allow the defense use-of-force expert to testify to deadly force issues, a matter that was still uncertain at the end of court yesterday.  This despite ADA Frank insisting on spending a chunk of the morning attempting to re-argue the issue.

Less favorably for the defense, Judge Chu declined the defense to put into evidence additional details about the recent felony drug conviction of Duante Wright’s mother, who had testified on the first day of the trial.

Stephen Bradford Ijames, Defense Use-of-Force Expert: Direct Examination

The first defense witness of the trial was Stephen Ijames, a use-of-force expert, and recently retired law enforcement officer of 44 years experience.  As is typically done with expert witnesses, the defense first had Ijames recite his qualifications as an expert.  Direct examination of Ijames was conducted by Attorney Paul Engh.

To say that Ijames had an impressive resume would perhaps be the understatement of the year—except that it would be an even greater understatement to say that the qualifications of Ijames completely eclipsed those of the State’s expert, Professor Seth Stoughton, who testified yesterday.

Besides being an LEO for some 44 years, working his way from patrolman to Chief of his department, Ijames was also a graduate of the FBI National Academy, and the equivalent DEA academy, and had been commissioned as a US Marshal in various task forces over his career.

Ijames spent many years as a full-time SWAT officer kicking in doors and serving felony warrants.  He was awarded a law enforcement “silver star” award for successfully saving a hostage being held in a liquor store robbery gone bad—a rescue that required him to shoot and kill the hostage-taker.

As recently as two months ago, Ijames had still been driving a marked police car for a park service and was now testifying in court after driving from Missouri to Minnesota in his own car, through storms and fire, at his own expense, without any payment by the defense—and only a week after having had open-heart surgery.

I kid you not.

Unlike State expert Stoughton, whose own law enforcement career was brief and mostly serving at a desk, some 15 years in the past, and had never involved a critical incident, Ijames had personally engaged in literally hundreds upon hundreds of critical incidents.

But it doesn’t stop there.  Ijames had also travelled not just around the United States training other police departments, but also to dozens of countries around the world to train their police departments, often under the mandate of the US Department of Justice.  He’d literally trained thousands of other officers in use-of-force.

Further, in the 1990s Ijames was also among the earliest classes of instructors for the then-new Taser device, and he literally wrote the national policies on the use of the Taser.

Ijames also had impressive academic credentials, including not only his own BA and MA degrees, but full-time and adjunct teaching positions at the university level. He indicated he’d published hundreds of scholarly papers.

And if that wasn’t enough, when the State sought to impeach his credentials early in their cross-examination of Ijames, it turns out that he spends his free time saving orphans in Haiti.

Orphans. In Haiti.

The contrast of this straightforward and impressive man with the smarmy and effete Stoughton could not have been more stark.

The bottom line of Ijames’ testimony was, as one would expect, the opposite of the conclusions of Stoughton. Where Stoughton had essentially testified that neither deadly nor non-deadly force by Potter could be considered appropriate, Ijames testified that either deadly or non-deadly force would have been legally justified and within reasonable police conduct in this case.

To understand how powerfully this exchange favors the defense, however, one would really need to observe and contrast the actual testimony of Stoughton yesterday and Ijames today.

Here is Ijames direct testimony, which took about an hour:

Stephen Bradford Ijames, Defense Use-of-Force Expert: Cross-Examination

On cross-examination, ADA Frank was once again plodding and flailing, with a bad start when he unintentionally led Ijames to share his Haitian orphan-saving hobby with the jury.  Mostly Frank appeared to be upset that whereas his own use-of-force expert Stoughton had produced a report of some 50 pages, Ijames and delivered a report of a mere two or so pages.

And those two or so pages chocked the living heck out of Stoughton’s 50.

As usual, along with being ineffectual, Frank managed to burn more time on cross-examination, about an hour and a quarter, than the defense had spent on direct.

Here’s the State’s cross-examination of Ijames:

Stephen Bradford Ijames, Defense Use-of-Force Expert: Re-Direct Examination

The defense did come back with a very brief, less than five minute, re-direct of Ijames.  One matter the State had focused on in cross is that Ijames had made relatively little use of the “magic words” of “objective reasonable officer,” mentioning it only once or so before moving on to speaking in plain English.  Here the defense had him use the magic words explicitly, so the jury would know for certain he knew them and had testified to them.

Here Engh also snuck in a question about the danger to the officers if Wright had put the car in reverse—the objection was sustained, and Ijames had not answered the question, but the jury had certainly heard it.  (Engh would circle back to this question with the next witness, former Chief Gannon.)

Here’s the defense re-direct of Ijames:

Timothy Patrick Gannon, former Chief, BCPD: Direct Examination

Next up for the defense was former Police Chief of the Brooklyn Center Police Department, Timothy Gannon. Gannon was compelled to resign along with Potter two days after the shooting of Duante Wright.  Direct of Gannon was conducted by Attorney Earl Gray.

He described that the political leadership of the city informed him that he could either resign and keep his retirement or be fired and lose them, both because of his failure to immediately fire Potter without administrative review of her conduct as well as his handling of the first two days of riots that followed the Wright shooting.

Gannons’ career was mostly a life in law enforcement, from patrolman to apparently every level of the BCPD, including multiple rounds at each Commander station, before becoming Chief in 2015.  He had also served in combat areas as a military policeman in the Marine Corps. prior to first becoming a patrolman in 1994.

Gannon described Potter as a fine officer, in all aspects of the job, and one who went above and beyond with her volunteer activity for the DART domestic abuse task force, the LEMA assistance to family of fallen officers, the hostage negotiation team, and more.

With respect to his review of her use of force on April 11 against Wright, he described it as within department policy, and as a simple mistake.  Either a Taser or a gun would have been an appropriate use of force under the circumstances presented to the officers by Wright.

Gannon also recounted that he himself had once been dragged by a car driven by a suspect fleeing from his efforts to arrest him, and the terror of the experience.

Gannon delivered direct testimony very favorable to the defense, and did so in a concise 20 minutes.

Timothy Patrick Gannon, former Chief, BCPD: Cross-Examination

Cross-examination of Gannon was again conducted by ADA Matthew Frank, who as usual took more time to question the witness than had the defense, and got a great deal less out of the effort.

Frank’s only substantive criticism of Gannon appeared to be that his opinion on Potter’s use of force was not well-informed because it was based on only her own body camera video, which he had viewed the day of the event, and the dash camera video of Officer Luckey’s squad car, which Gannon had seen only the week prior to his testimony.

Gannon’s response was essentially that the very reason he’d not immediately fired Potter after the event was precisely because not all the evidence had yet come in.

When asked, Gannon affirmed that he liked and respected Potter, which Frank naturally used to suggest his testimony was biased.

Bottom line, the cross of Gannon was 28 minutes of not much to write home about:

Timothy Patrick Gannon, former Chief, BCPD: Re-Direct/Re-Cross

Re-direct of Gannon by Earl consisted of only a single question:   Would you lie under oath to help a friend?

Gannon’s reply:  There’s a reason I’m an ex-Chief—nobody can make me do anything.

Boom.

Then Frank had a single-question re-cross, asking Gannon if he was merely offering his opinion, and Gannon confirmed he was.

Four Character Witnesses

The defense then offered four character witnesses, although one, Officer Friecke, had some modest first-hand knowledge of the events following the Wright shooting.  All said that Potter had a well-established reputation for being law-abiding and for peacefulness. Notably, two of these witnesses—Hall and Smith—were black men.

Perhaps the most remarkable aspect of the testimony of these four witnesses was that the State chose the off-putting ADA Joshua Larson to conduct their cross-examination.  Larson was thoroughly hostile, especially to the nearly weeping Office Friecke, a woman, and took entirely the wrong tone.  Why the State did not have ADA Erin Eldridge at least cross-examine Friecke is beyond me.

In any case, not much substantive to write about the testimony of these witnesses, so I’ll simply present it in summary fashion.

Officer Colleen Friecke

Thomas Hall

Sergeant Frank Roth

Officer Samuel Smith II

Defense Creates Record of Duante Wright Misconduct

With testimony completed for the day the defense created a record, outside the hearing of the jury of many of Duante Wright’s bad acts, evidence that the judge had declined to admit into evidence on character grounds.

Judge Chu to Include Non-Deadly Instruction

Finally, the judge noted she’d be finalizing jury instruction this evening—importantly, Judge Chu also informed the parties that she planned to add an instruction on the authorized use of non-deadly force to supplement to already agreed to parallel instruction on authorized use of deadly force.

Although the State reserved the right to object to this new instruction until they’d see a draft, the addition of the non-deadly instruction would be very favorable to the defense.  In effect, it would provide a path for the jury to an acquittal if they believed that non-deadly force was authorized and that unintentional use of deadly force was simply a mistake or mere negligence.

FRIDAY: DAUNTE WRIGHT SHOOTING TRIAL DAY 8 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.

Until then:

REMEMBER

You carry a gun so you’re hard to kill.

Know the law so you’re hard to convict.

Stay safe!

–Andrew

Attorney Andrew F. Branca
Law of Self Defense LLC

Nothing in this content constitutes legal advice. Nothing in this content establishes an attorney-client relationship, nor confidentiality. If you are in immediate need of legal advice, retain a licensed, competent attorney in the relevant jurisdiction.

 

 

DONATE

Donations tax deductible
to the full extent allowed by law.

Comments

Jason Larson — what a ba*tard — with his condescending, bullying, short man attitude on full display. Reminds me a lot of ADA Binge-er.

I know that the issue is not limited to Wisconsin, but just based on these two recently televised trials, holy shit, I’d never want to be tried in that state. Two trials and both prosecution teams are pulling shady shit to score convictions. Even the Chauvin trial wasn’t this bad, at least as far as prosecutorial misconduct is concerned. As terrifying as it is, more trials need to be televised if real justice reform is to happen.

A lot of similarities in the prosecutors of these last 3 politically motivated trials. ie- the prosecutors are as big of shit stains on society as the perps that were killed.

I really think this one is a barometer of whether this city has decided they haven’t hit bottom and want to keep on digging.

Potter remains as fucked today as she was yesterday.

No jury will find a police officer innocent of anything. Democrats have seen to that.

Blaise MacLean | December 17, 2021 at 8:36 am

I have a question about character evidence. In my old jurisdiction it was uncommon as a defence counsel to put your client’s character in issue. Once you did that, was the conventional wisdom, you opened it up to the prosecution to come back with all the bad character evidence they had…and since they had the police investigators on their side, who knew what they might dig up. Of course most criminal clients had plenty of skeletons in their closets so that made sense. Officer Potter seems a different category of human. Nonetheless, isn’t it risky? Or does Wisconsin have nuances on character evidence that may differ from other common law jurisdictions? Just curious.

    Retired On Duty in reply to Blaise MacLean. | December 17, 2021 at 9:13 am

    Jerry Spence always said never put your client on the stand. Yet when defending police officers you almost always have to. If you are putting your client on the stand you might as well put on evidence of good character before they do.

    In Texas if you file a written request the prosecution must provide all evidence they have of bad acts and character. Hopefully they have the same

Unfortunately, I haven’t been able to watch any of this trial. One thing I was confused about is if the state is alleging not even the deployment of the taser was justified. To the casual observer, it seems like. But, maybe that’s entirely wrong. In any event, with the possible inclusion of the ‘non-lethal’ jury instruction, Potter’s defense is helped, as you say. Tasing a wanted felon what effecting arrest of that felon who’s in the act of committing multiple additional felonies (by resisting arrest with force) warrants being tased, at a minimum, right? It’s my own opinion that deadly force should easily be justified in that circumstance. Cars are potential weapons of mass destruction in the hands of a violent criminal as the events of last month capably demonstrated.

Also, at the end of the day, isn’t her bodycam footage the only video that is relevant to this case? The question in Potter’s guilt or innocence should center on the perception of events as they unfolded solely from Officer Potter’s point of view. Or, does that not really matter if the state is claiming that not even the taser would have been warranted.

As an aside, I can’t help but think how many of these accidental deaths might have been avoided if cops still had access to billy-clubs and choke holds. No one is mistaking their sidearm for a baton and suspects can’t get into cars when they’re being choked out.

    The state seems to be (from my non-lawyer perspective) claiming that not only was Potter unjustified in shooting Wright, she would have also been unjustified in tasing him, and unjustified in raising her voice in protest as he drove off over the bodies of the other officers. Perhaps, just maybe, she should have written him a strongly worded note. No profanity, of course.

I have an issue with the experts not I understanding that the body cam does not show what the officer sees. The body cam is mounted on the chest and therefore a completely different perspective than what the person wearing it sees. The prosecutor tried to use this to their advantage during the cross of the defense UOF expert when they showed body cam footage and purporting it proved SGT Johnson was not inside the car after the Taser warning. If the body cam showed it was about even with the door jamb then the person’s head and shoulders were still in the car.