We are now on VERDICT WATCH
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.
The final witnesses testified last Friday. Jury Instructions and Closing Arguments will start this morning. The jury will get the case sometime this afternoon, at which point we will go on VERDICT WATCH.
Sorry to disappoint you, but I’m substituting for Andrew Branca today, because as he mentioned previously, his wife is having surgery today so he is unavailable. But we greatly appreciated his coverage of the jury void dire and trial evidence. His last post has a nice summary of where we are in the evidence, Daunte Wright Shooting Trial Day 8: Case Ends Strong For Defendant Kim Potter.
Refer to the Amended Criminal Complaint to follow along with the arguments and ultimately jury verdict.
COUNT I – Charge: First-Degree Manslaughter Predicated on Reckless Use/Handling of a FirearmCOUNT II – Charge: Second-Degree Manslaughter
You can read all court documents here: 27-CR-21-7460: State vs. Kimberly Potter. I haven’t been able to find a written copy of the Jury Instructions, which are not yet posted on the court website.
I won’t be using the ‘live blog’ software because I’d just be transcribing the lawyers arguments. Instead, I’ll add my thoughts and what I think the highlights are as it goes.
Focus on instruction about superseding cause – a cause after the defendant’s acts.
Defense repeats objection to rebuttal, it was pre-prepared, was a second closing not true rebutal. Made misstatements of law including superseding cause and knowing had gun in hand. Move for mistrial.
Prosecution says did rebut and respond, allowed to couch rebuttal in terms of advocacy. Accurately stated the law on superseding cause. On issue of knowing there was a gun in hand, believes accurate.
Judge denies motion for mistrial, allowed to respond. Definition of superseding cause in the instruction, state allowed to respond.
Judge then gives other concluding instructions. Will give copy of jury instructions, but no transcript. Can ask for having testimony read back, but court may deny it. If you submit question on law and evidence, may take time to respond, will need to consult with lawyers. Can take your notes to the jury room. They will get laptop with all the evidence in the case, no internet access.
Gives instruction on “implicit bias” – brains hardwired, filter through lens of own personal experience and background, tend to favor people who are like ourselves, e.g. association of male with career and female with family. Examine your decision for bias. Listening to differenct perspectives may help reach decision free from bias.
Must be unanimous verdict. Decide only after discussed case with fellow jurors. Goes over verdict forms, single verdict for each count, Guilty or Not Guilty. Jury now has the case.
[LOL] Judge almost forgot to dismiss alternates. Jurors 57 and 58 dismissed.
Bailiff sworn in to take charge of jury.
Focus on training and practice disregarded. Has gun in hand for about 7 seconds. Mistake not a defense, not mistake instruction in jury instructions.
Must be evidence of apparent belief of death or great bodliy harm to Johnson. She herself said at the scene she didn’t mean to use deadly force. A claim made up after the fact. Look at the videos, watch them in real time, I encourage you to do that. But you can believe what you see in those videos. Characterization of fighting and struggling not supported, he was trying to flee, no doubt about it – “he simply pulled away and tried to operate the car”.
Officer Johnson doesn’t appear panicked in the video, he’s calm, subduing Wright. “I’m not saying officers lie” – Judge will instruct you on relationship between the parties.
Leading questions to Johnson, what would have happened if you were halfway in the car, but he wasn’t halfway in the car.
Bodycam had same view as Potter’s eyes. If tunnel vision and hyperfocus, how does she see Johnson’s face.
All the opinions offered on leading hypotheticals, not facts of the case.
Stoughton not paid 95k as defense claimed in closing, only about 9k. Goes over Stoughton testimony.
Multiple objections by defense that the rebuttal is going beyond proper rebuttal, judge overrules.
You can rely on the most important evidence, Potters own actions and words. Actions speak louder than words, but here speak at same volume that deadly force not justified. Said taser, taser, taser. Only pulled trigger once. Immediately expressed surprise, said pulled wrong gun. Immediately expressed shock has done something so very wrong, collapses to ground, “I’m going to prison” – is that the reaction of someone who though deadly force was justified. Didn’t even say needed to protect Johnson, that was his statement. She admitted in court didn’t mean to use gun, she knew deadly force not necessary. If she didn’t believe it, how could a reasonable officer in that position believe it.
When examining Glock, remember it’s now unloaded weighs less than at the time.
Causation – it’s “rebranding” of the case – factually and legally wrong because the bullet is what caused his death. To an absurd extent Potter now tries to argue he caused his own death, it would mean that anytime anyone doesn’t maticulously follow police instructions, it would be grounds to shoot the person.
[multiple continuing defense objections that not proper rebuttal]
Failing to follow instructions did not allow Potter to shoot Wright to death.
“Superseding cause” – defense read instruction right, but interprets it wrong. Potters acts came after Wright attempt to flee, would have had to come after Potters acts. A clear diversion, not superseding because the conduct they say is superseding came before.
Notion of “mistake” in defense was mischaracterization of law. Like blaming gravity for falling into a hole. If person gets themselves in a hole, it’s not gravity’s fault. State doesn’t need to prove she knew she had a gun in her hand. If she knew, then would be an intentional crime. Don’t have to prove intent. Only need to prove she was aware of the risk.
“Consious” – her conduct that was conscious and intentioual was drawing the gun and shooting. [another defense objection]
Find guilt on both charges submitted to you.
Earl Gray is doing the closing. He’s the more gruff of the defense lawyers. I think Paul Eng is more methodical.
Start: Accused by state that we would run you down rabbit hole of misdirection – but prosecution slowing down video and screenshots not in real time is the misdirection. It was seconds not slow motion. [This is key, real life not hindsight]
No threat by Daunte? Why are photos of Daunte with his kids shown, they are asking for sympathy, not us. Bodyworn camera doesn’t see Johnson, but that’s lower view than where her head is. She saw Johnson. Mocks claim police lie because they are a family.
Starts with focus on presumption of innocence, and standard of “beyond a reasonable doubt”. You have to enforce these constitutional rights.
Starts to go over what was happening, high THC level in Daunte blood, “he’s high” – turns out a bench warrant for gun charge. Raises “antenna” for two cops, so called for assistance. No license, no insurance, restraining order, bench warrant – that’s what they had when approached car second time.
Could have taken him to the ground, put a knee on his neck [wth?], but officer lucke a nice guy.
Dante breaking away is what caused this whole incident. Says this is a superseding cause. Mocks prosecution expert for saying they should have just let him go. Daunte fighting with police.
“It was within seconds, it was chaos.”
If car went in reverse, very dangerous for everyone, police behind vehicle. Wright putting up a struggle. “I’ll tase you” – tries to deescalate, why didn’t he stop? Two cops fighting with him, he didn’t want to go to jail. Four seconds later — “make it at the right speed” — he keeps struggling, “Taser Taser Taser” — he still doesn’t give up. She would not have tased him if he gave up at that point. That’s the cause.
The causation was Daunte Wright. Sometimes things happen that are unexpected, but they save a life. Even after shot, and he says you shot me, he drove off fast. Still trying to get away. He could have been alive for up to a minute.
Why did we hear so much about the car accident from prosecution? He drove while alive. He should have stayed, might have had medical help. Prosecution went into detail on accident to get sympathy, how could Potter be at fault for that, prosecution taking you down the rabbit hole.
Everything Potter did was legal, and then he tries to break away. [I don’t think that’s what superseding cause means, but will be interesing if judge gives any further instruction].
Prosecution did not prove that Potter “caused” the death. Daunte Wright caused his own death.
Authorized use of deadly force — prosecution has to prove not authorized. You can’t hindsight these things.
Prosecution says officers a family, so lying. Not true. You saw them, they were professionals. To argue that police officers to protect Potter, they knew the oath and perjury, they are not going to do that. That’s going down the rabbit hole.
Police officers aren’t thugs, to say they would color their testimony is “outrageous, simply not fair.”
Johnson testified he was in great danger, wrestling with Wright while leaning into car to reach shifter – what would have happened to Johnson, death or serious injury. Johnson said, quoted statute on deadly force, he was there, not in a classroom watching a video. It was chaos, Johnson was there. Defense expert said Potter had right to use deadly force, whether she knew it or not.
They have to prove beyond a reasonable doubt that deadly force. Stoughton (prosecution expert) didn’t have experience, hard to believe the state would hire and call such a person.
In Johnson’s opinion, right to use deadly force. Another commander (name?) said could use deadly force, Gannon former chief of police said same thing. Three witnesses say could use deadly force, but burden on state. Are they the sort of people who would lie, give a false opinion?
Two reasons – she didn’t cause it and had right to use deadly force.
A third reason — the statutes — “conscious or intentional” act – being aware you have the firearm, you need to be aware of it, no evidence she was aware — can’t be reckless unless knew she was holding a gun. How can you recklessly “consciously” handle a gun if you don’t know you had it.
Additional reason – simple mistake — you could be trained forever and under exigent circumstances could make a mistake. Prof. Miller and how brain functions, I understand that in walk of life everyone makes mistakes. An “action error” – the dominent brain takes over and you draw your gun instead of taser. Doctors make mistakes and they don’t get charged, same with pilots who make mistakes. “Mistake” – lawyers too.
A mistake is not a crime in our freedom loving country. Even though you took all the training, even the taser company recognizes that. Why is taser shaped like a gun? why not like a flashlight? because they can sell more of them.
Character witnesses – peaceful person, not a bully. Never been accused of abuse of force. And law-abiding. When falsely accused of crime and you are innocent, that’s why you rely on reputation. From instruction, can consider character evidence in determining beyond a reasonable doubt.
Potter testified she was Johnson, had look on his face she’d never seen before. Body worn camera is different angle – an outrageous argument. Relying on slow motion of bodyworm camera. If you saw it in fast speed, it’s chaos.
Reason there is instruction on taser is because of the prosecution expert said no force justified. Decide credibility of Stoughton.
The Potter family thanks you for listening to this case. Look at the law and evidence. Did she have a right to use deadly force, yes, of course whether she knew it or not, the police officers testified to that.
[didn’t use any exhibits, tried to hit a few themes, not very methodical, maybe not showing images better because he claims they are out of context.]
Judge says a mistake on evidence of character instruction she just realized. No evidence of character for honesty, she did not allow that evidence, but jury instruction mentions it. Will give jury new instruction after the closings. Defense doesn’t want jury told there was a mistake, just give them the new instruction. Judge says will think about it over break, instruction wrong, no evidence on character evidence for honesty. Prosecution doesn’t object to saying evidence of peacefulness and law abiding, doesn’t think should say no evidence of honesty, may lead juror to wonder why no evidence (they don’t know about the judge’s evidentiary rulings).
Starts with how Daunte won’t be home for Christmas, unlike Potter’s son. Heart of case is “a case about defendant’s reckless handling of firearm and culpable negligence”. We’re here because of Potter’s actions, not Daunte Wrights actions. It’s not about whether Potter a nice person, even nice people need to obey the law. “What this case is about is an officer who mishandled her firearm.”
Wright posed no threat to officers when pulled over. When Potter says “you have a warrant” is when Daunte reacted and tried to get back in car [so? stupid point to me]. Flips through frames one by one from her bodycam, trying to show she didn’t have good look at officer partially in the car, Sgt. Johnson. When shoots, cartridge ejects into face of Officer Luckie [so?]
Show this image to jury – but this shows Potter did have a good view of the other officer and the officer was partially in the car.
Potter didn’t save Sgt. Johnson’s life. “If anyone saved Sgt. Johnson’s life, it was Daunte Wright when he took a bullet to the chest.” Use of firearm in close proximity to four people was reckless. “Absurd” to think Sgt. Johnson was in danger. You don’t get to shoot someone when things don’t go according to plan.
[my note – as Andrew has pointed out before, this prosecutor has a grating voice and arrogant attitude][and snide, did I mention snide?]
Weapons confusion known risk, shows recklessness or culpable negligence. “No one is saying the defendant meant to kill Daunte Wright.”
Goes over elements of Manslaughter 1 using jury instructions.
Potter conduct showed awareness of forseeable risk, which shows recklessness.
Goes over elements of Manslaughter 2
Potter made no effort to protect against accidental shooting, put everyone at risk. Held weapon on hand for several seconds without confirming what she was holding. Conciously took a chance of causing death or great bodily harm.
We wouldn’t be hear if she followed her training. Best proof is her own admissions. “I’m going to prison” I pulled the wrong f-ing weapon.
Even if she didn’t intend to use deadly force, she intended to use force. You don’t blindly pull weapons and pull the trigger. Wasn’t reasonable or necessary. Not responding to any real threat, just trying to stop him from getting away.
Potter acknowledge that deadly force not needed. Her statements are admissions that she was reckless and culpably negligent. She put it all in motion despite all the risks. “It’s her hand, it’s her gun, it’s her actions.”
Argues event taser was reckless. But also argues it’s irrelevant. Goes to show that even decision to use a taser was not a wise one. A series of bad choices. Goes to her disregard of the risks. [stupid point, just injecting non-deadly force into case]
This was not a simple “oopsie” – a blunder of epic proportions. Precisely the thing she had been warned about for years.
Attacks police “family” credibility — they defend you no matter what. “The same thing applies to defendant’s police family.” “They have her back.” Can’t ask her police family to independently assess, that’s why they brought in BCA. “Bias of close relationship”. The farther you move away from that family unit the clearer things become. “You are not beholden to the police department.”
Don’t get sucked down rabbit hole of hypotheticals and what ifs.
Urges jury to hold and feel taser and Glock during deliberations, to see how different they are.
She betrayed her badge and her oath. What she did was criminal. Daunte not on trial. Whether you agree with his decision to flee is not the issue.
Failure to do spark test on taser that day was important. Would have required her to put her hands on and recognize the taser.
Accidents can still be crimes if result of recklessness or culpable negligence. “Mistake” “Accident” not injury instructions. Potter failure to recognize handling gun show recklessness and culpable negligence.
Case not about her remorse or feeling sorry. Of course she feels sorry. Doesn’t matter. She chose to ignore the risks and facts, to disregard her training. Defendant alone responsible, “Daunte Wright did not cause his own death” “A tragedy of her own making, and it’s not just a tragedy, it’s manslaughter.”
End of Prosecution initial closing (I’m assuming they get a rebuttal).
start with presumption of innocence and “reasonable doubt” standard – a doubt for which a reason can be given, not proof beyond any doubt. Can consider evidence of character of defendant introduced at trial in determining whether proof beyond reasonable doubt. Police policy violations are not crimes.
To “cause” death means act was substantial factor in death, without superceding cause. “Great bodily harm” means bodily injury that has high probability of death or substantial bodily harm.
Count 1 – Manslaughter First Degree – while committing misdemeanor offense. Elements are death, defendant caused, caused by committing crime of reckless handling of firearm. “Recklessly” if under totality of circumstances commits intentional act that creates a substantial risk that she is aware of” — (this is why expert testimony so important that she may not have been aware at the time, did it from embedded action). No intent to kill needed.
Count 2 – Manslaughter Second Degree — death, cause, “culpable negligence” creating unreasonable risk and consciously took a risk. “Intentional” conduct that ordinary and reasonable person would recognize. No intent to kill needed.
Deadly force by police officer lawsful if to prevent death or great bodily harm to herself or another. No intent needed. Judge from perspective of reasonable police officer on the scene at the time. No crime if used force authorized by law.
Use of taser – authorized to use reasonable force in lawful arrest, effecting lawful process, enforcing order of court. Executing an arrest warrant is lawful obligation of officer. Reasonableness of force is based on reasonable police officer on the scene at the time. Whether use of taser appropriate is not a defense to the criminal charges in the case.
WAJ notes — surprised not more discussion about what constitutes “recklessness” or “culpable negligence” — the key determination.
Video of jury instructions:
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