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Kim Potter Conviction: A Blatant Miscarriage of Justice

Kim Potter Conviction: A Blatant Miscarriage of Justice

Prosecution never showed evidence of recklessness and deliberately misled the jury on the law

I’d like to share some quick observations on the conviction of Kim Potter on two counts of manslaughter over the shooting death of Daunte Wright.  I realize that the conviction is now a week past, but feel obliged to write up my closing thoughts on the case if only to close the circle on this trial on which we all invested considerable time and effort.

 

As the title of today’s content reveals, it’s my professional opinion that the conviction of Potter on charges of manslaughter is a blatant miscarriage of justice based on the fact that manslaughter in this case properly required proof beyond a reasonable doubt of reckless conduct, that reckless conduct in this case properly requires the conscious disregard by Potter of an unjustifiable risk of death or serious bodily injury to Daunte Wright, and that the jury was presented with exactly zero evidence that Potter consciously disregarded the risk that resulted in Wright’s death.

Indeed, it was uncontested throughout the trial that Potter never even knew she had a gun in her hand during her encounter with Wright, and one cannot consciously disregard a risk that one does not know exists.

To the extent that Potter ought to bear responsibility for unintentionally killing Wright, that responsibility is at worst based on negligence, the unknowing creation of an unjustified risk, and subject her to merely civil liability.  Absent a conscious disregard of risk, for which no evidence exists in this case, her conduct cannot qualify as recklessness raising criminal liability.

Again, to the extent that Potter ought to bear responsibility for unintentionally killing Wright, that responsibility is at worst based on negligence, the unknowing creation of an unjustified risk, and subject her to merely civil liability.  Absent a conscious disregard of risk, for which no evidence exists in this case, her conduct cannot qualify as recklessness raising criminal liability.

This distinction between negligence raising merely civil liability—that Potter should have known she was creating an unjustified risk of death–and recklessness raising criminal liability—that Potter did know she was creating an unjustified risk of death–is extremely old and well-established law, and found throughout the relevant Minnesota law, including the jury instructions provided the jury in this trial, and the relevant case law on recklessness in the contexts of both manslaughter and firearms use.

With respect to manslaughter in the first degree, the relevant jury instruction requires in relevant part that the state must prove beyond a reasonable doubt that the risk created by Potter was one “she is aware of and disregards.”

Similarly, the jury instruction regarding manslaughter in the second degree requires in relevant part that the state must prove beyond a reasonable doubt that the risk created by Potter was one she “consciously took.”

In terms of case law on this question of recklessness, an illustrative Minnesota Supreme Court decision on this issue is State v. Frost, 342 N.W.2d 317 (MN Sup. Ct. 1983)Frost quotes the well-respected legal treatise “Wharton’s Criminal Law” which provides a concise and well-established distinction between mere civil negligence, on the one hand, and criminal recklessness, on the other.

“Recklessness” and “negligence” may be defined in the following manner:

A person acts “recklessly” when he consciously disregards a substantial and unjustifiable risk that the element of an offense exists or will result from his conduct … .

A person acts “negligently” when he should be aware of a substantial and unjustifiable risk that the element of an offense exists or will result from his conduct … .

Each actor creates a risk of harm. The reckless actor is aware of the risk and disregards it; the negligent actor is not aware of the risk but should have been aware of it.

(Emphasis added.)

In this case, the prosecution never argued that Potter was aware that she had a gun in her hand, and therefore was aware that she was creating a risk of death or serious bodily injury and consciously disregarded that risk.

Worse, during the state’s rebuttal—meaning, after the defense no longer had any opportunity to make a counter-argument to the jury—the prosecution informed the jury that they had no legal obligation to prove that Potter was actually aware that she was holding a gun, and thus they had no obligation to prove beyond a reasonable doubt that Potter was aware that she had created a risk of death or serious bodily injury and disregarded that risk.

The state thus told the jury that they could find Potter guilty of manslaughter based on recklessness even when the prosecution had not proven beyond a reasonable doubt that she had consciously disregarded the risk that caused the death.

That’s not the law of manslaughter and not the law of recklessness.

What might conscious disregard of risk have looked like in this case?  Imagine that hypothetically Potter had found herself in a struggle alongside her fellow officers to lawfully arrest Daunte Wright, went to deploy her Taser, and suddenly realized that she’d accidentally left it back at the station house.

She then intentionally decides to draw her Glock 17 pistol, not to inflict deadly force but merely to pretend that it was her Taser in order to bluff Wright into ceasing his resistance. Then, in the full knowledge that she had an actual gun in her hand, something about the struggle induces Potter to unintentionally fire the weapon, killing Wright.

Arguably, such a knowing deployment of a firearm under those conditions would constitute creating an unjustifiable risk that Potter “is aware of and disregards,” as required for manslaughter in the first degree, or the creation of an unjustified risk that Potter “consciously took,” as required for manslaughter in the second degree.

No evidence of such knowing disregard or conscious risk-taking was presented in this trial, however.

In effect, then, the State created out of whole cloth a novel theory of manslaughter that has no foundation in Minnesota law, presumably because the actual evidence, in this case, failed to support the actual Minnesota law on reckless manslaughter.

Perhaps there is merit to such a theory of manslaughter, and perhaps there is not, but that is a decision for the Minnesota legislature, not for the prosecution in a particular criminal trial of an individual defendant.

Further, Judge Regina Chu, presiding over this trial, failed in her fundamental duty to ensure that the jury was properly instructed in the relevant law when she effectively permitted the State to give the jury improper instruction on the law, and without correction from the bench, leaving a naïve jury to accept that misstatement as actual Minnesota law from which they could find guilt.

The jury is properly the finder of fact, but the law is defined for them by the court—leaving it up to the jury to decide the legal issue of whether recklessness requires a knowing disregard of the risk in question is a fundamental failure of the trial court, an act of violence against due process of law, and a miscarriage of justice.

It must be noted that although the defense team in this trial did a reasonably good, and often excellent, job on cross-examination of state witnesses and direct examination of defense witnesses, Attorney Earl Gray fell far short of excellence in his closing argument. He oddly chose to expend considerable time on the not compelling argument of superseding causes instead of the key to the entire case of the absence of intentional disregard of known risk.

That said, the defense did object after the state’s rebuttal to the prosecution’s claim that they need not prove beyond a reasonable doubt that Potter knew she had a gun in her hand in order to establish the knowing disregard of risk needed for the recklessness required for conviction on either manslaughter charge—an objection, by the way, to which Judge Chu oddly chose to not directly respond—so at least that critical issue is preserved for appeal.

Nevertheless, as I’ve often noted in the past, appeals are for losers, with all the legal presumptions now favoring the verdict of guilt rather than favoring the defendant’s innocence, and incurring possibly years of time—which Potter will spend in prison—and huge sums of legal funds—which Potter will need to provide from her own resources.

Potter does have one possible advantage on appeal that most criminal appellants do not have, however.  In most cases a successful appeal does not mean that the defendant has suddenly been found not guilty, it merely means that the defendant is entitled to a new trial, one in which they might very well be convicted again.

In the case of Potter, however, if her conviction is reversed because of the misstatement of criminal recklessness allowed by Judge Chu in this trial, a second trial (probably also presided over by Judge Chu, by the way) would presumably require a correct instruction on recklessness—and it would not seem that a trial on a correct version of reckless manslaughter would be viable on the facts of this case, given the absence of any evidence of knowing disregard of risk.

OK, folks, that’s all I have for you on this topic at the moment.

Until next time:

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.

 

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Comments

I was terribly disappointed that a Hennepin County, MN jury convicted the former police officer, Kim Potter, of both first-degree and second-degree manslaughter in the shooting death of hard-core criminal Daunte Wright.

My take is the facts of the case were never in dispute. The police officers tried to arrest Wright on an outstanding warrant for a weapons charge.

Wright attempted to flee in his vehicle. As Wright was starting to get away, Potter meant to tase him, but under the pressure of the moment, she drew her gun instead of her taser and fired once, killing Wright.

Videos at the scene show that she was horrified and distraught at her mistake. The evidence at trial added little or nothing to what has always been clear. Potter was executing a lawful arrest of a criminal. There was a similar issue in the Derek Chauvin case.

In my opinion, the verdicts are wrong and should be reversed on appeal.

    Ghostrider, you are quite correct, but with her and her family’s lives already ruined, how can she afford an appeal and subsequent retrial?

    Scientific papers are subject to peer review as a matter of course. They are immediate and don’t break the bank. Legal review is horrifically expensive and time-consuming. I ask: Where are the attorneys and, more importantly, judges decrying this miscarriage?? I hear only crickets, except for the esteemed A. Branca.

      Bisley in reply to bear. | December 29, 2021 at 12:18 pm

      The system that exists today is a full-employment program for lawyers. Anything and everything can be litigated without end; fact, law and justice are less important than procedure; and many of the participants are more concerned with politics and their public image than the law. If the court system was forced to run in a straightforward and expeditious (and much less expensive) manner, there would be no need for most of the trial lawyers and judges. They like it the way it is — it keeps the gravy train rolling.

        Rand in reply to Bisley. | December 29, 2021 at 2:22 pm

        To be fair, I think we have to lay the blame on our fellow citizens who voted for all of this. These are the folks who think that every problem deserves yet another law, regulation, or restriction, who see the law as a way to get their hands into the pockets of others, provide undeserved competitive advantages, punish their political enemies, or force their values on all of society.

        As H. L. Mencken said: “Democracy is the theory that the common people know what they want and deserve to get it good and hard.”

        We are getting it good and hard.

      Rand in reply to bear. | December 29, 2021 at 12:18 pm

      And don’t forget Alan Dershowitz is highly critical of this trial and verdict.

    Too bad Minnesota appellate courts do not care. This is like the Lottery, and a few unlikely folks have to be sacrificed so the woke can pretend how virtuous they are.

    You left out what I think is an important detail in all of this, that all of those police officers failed to get Wright under control. I’ve been struggling to understand how that could be. All of those trained cops couldn’t get one little guy under control? I think that contributed greatly to the chaos that led to Potter’s mistake. Maybe these were not Minnesota’s “finest”.

      And every single one of those cops was thinking “if I use any effective coercion (wood shampoo, chokehold, or even just my weight) and meth-head strokes out, I’ll be the next Derek Chauvin.” The mistake the cops made was engaging at all,

      The level of training of the cops on the scene is definitely an important detail in a general public policy sense, and perhaps fodder for civil actions for negligence against the officers involved and the police department. But it’s just not a legally relevant detail with respect to whether Potter committed manslaughter.

      divemedic in reply to Pasadena Phil. | December 29, 2021 at 8:02 pm

      I’m betting that you have never tried to get someone “under control” who doesn’t WANT to be controlled. Then do so while you have to follow rules, and they don’t.

      TexasJack in reply to Pasadena Phil. | December 29, 2021 at 8:17 pm

      The critical tactical error was attempting to cuff him right next to the open car door. As the ex-chief testified, the right approach would have been to walk him to the back of the car, close the car door, turn off the engine and grab the keys, and only then tell him he was under arrest and put the cuffs on. Sgt. Johnson should have assisted Luckey with restraining Dante and Potter should have watched the passenger and controlled her, if needed.

    mbecker908 in reply to Ghostrider. | December 29, 2021 at 10:26 am

    1. I seriously doubt any appeal, on any grounds, will be successful. Minnesota.

    2. Even if an appeal is successful, as Andrew notes in his commentary, it will just go back for a retrial. Same prosecutor, same jury pool, same judge. Same result.

Politics. And the climate surrounding cases like this.
The judge is less than optimal. At best she might not do too much harm as a traffic court judge.
She’s way over her head on this one.

Mr. Branca, with great respect for your talents, expertise and efforts in this case, the irony of your usual sign-off (“Know the law so you are hard to convict.”) apparently has zero meaning anymore. Left with only her own resources and whatever courage and resolve she has remaining, Ms Potter has been and is in the clutches of a completely amoral and fearlessly corrupt judicial system. May God help anyone who merely “knows” the law. It wasn’t so hard for the prosecution, judge or jury to ignore the law.

Were I an LEO anywhere in the U.S. but RURAL Texas, I would be handing in that badge. It’s not easy, but I’ve never failed to make a tough choice when my freedom has been threatened by corrupt management. It can be done.

    AnAdultInDiapers in reply to bear. | December 29, 2021 at 5:23 am

    Yeah, we’ve seen many instances in which prosecutors ignore the law, the judge lets them get away with it and the truth of whether someone is guilty or not isn’t what the jury examines.

      That’s because the accountability system for judges and prosecutors is an absolute joke with no intent of doing anything whatsoever, unless some judge offends the woke crowd.

      Example: Krause & Binger from the Rittenhouse trial. Look at the egregious, glaring, blatant acts of intentional misconduct they got away with even with the trial being live streamed across the Internet!!!

      1. Impeaching Kyle from the very start based on his 5th Amendment silence earlier.
      2. Intentionally ignoring an order to exclude propensity evidence.
      3. Intentionally using “Handbrake” and “Format Factory” to so degrade video evidence that it was unusable by the defense to form any effective argument against the state’s false narrative that Kyle had provoked these people earlier by brandishing his rifle toward the “protestors”. Tampering with evidence should have been a criminal offense and the trial ended right then and there by mistrial with prejudice so that charges could never again be referred.
      4. Withholding the identity of “Jump Kick Man” when those prosecutors knew who and where he was. He was referred to as “unknown” even though both Krause and Binger knew he had a pending domestic violence charge to answer for.

    ruralguy in reply to bear. | December 29, 2021 at 11:08 am

    Excellent post. The jury and law in this once-great city, reflects the city’s far-left politics. It’s amoral, anti-white, self loathing, and rotten to the core. Our court system, media, and now corporations are corrupted by far-left ideology and also rotten to the core.

    Legal theory is amazing, but practically no one can afford law. Who can afford $350-$500 per hour attorneys?

    Any LEO who serves in a left-leaning city risks serious prison time. Anyone who lives in a left-leaning area faces crime and a collapsing social order.

      aramissebastian in reply to ruralguy. | December 29, 2021 at 6:08 pm

      I would imagine that Potter’s legal expenses are being handled by her union.

        That was to be my question.

        The police union paid for her defense, will they also pay for any appeal?

        Between this and Chauvin, they’ve burned through a lot of money

        Will that affect the quality of any appeal or retrial?

          aramissebastian in reply to murkyv. | December 30, 2021 at 9:10 am

          That’s an excellent question, to which I don’t know the answer.

          For the officer’s sake, I hope there’s at least money for an appeal as of right (i.e. an automatic right of appeal, as opposed to one requiring leave of the court).

    mbecker908 in reply to bear. | December 29, 2021 at 12:19 pm

    “Hard to convict.” not “Impossible to convict.”

    We pay close attention to Mr. Branca’s admonishments. Our family is armed, I never leave home without my Walther and we practice what to do should we find ourselves in the aftermath of a self-defense shooting. For instance, my wife would call 911 ASAP. Tell them that we are the victims of a deadly force attack and that I used force to stop it, we are [address], send police and medical personnel. And hang up. They will call back. Repeat the information, note what we are wearing and hang up. Answer NO questions, offer only information that we are the victims of a deadly force attack.

    After that call is made, once the scene is secured, I call my self-defense insurance company, CCW Safe. I let them know what has gone down and they have my attorney contact me.

    Police arrive on the scene, I identify myself, turn over my firearm, point out any witnesses, and say, “This has been really stressful and I’m not feeling at all well right now. My wife and I need to get to a hospital. If you need more from me I’ll be happy to provide it at a later date when I’m in better shape. At that point, conversations with the police are done. Any further conversation will be in the presence of my attorney.

    I went through all that to really say this: I think one of the biggest problems Potter may have had was her reaction after the shooting. She appeared to be totally unhinged. I can understand that, I’m guessing that most jurors, especially in that jury pool, won’t.

    Rand in reply to bear. | December 29, 2021 at 12:26 pm

    I know Andrew was a bit critical of the judge in the Rittenhouse case, but personally, I think that judge was better-than-average, and really pretty non-nonsense and old-school in his approach. I think that judge had a lot to do with keeping the raging woke prosecutors under control during the trial. Unfortunately, Potter drew judge pussy-willow for her trial, who’s job it was to make sure that the law and the jury instructions were clear and understood, but did no such thing, no doubt out of fear of political backlash.

Do you thinka JNOV motion is forthcoming or perhaps a motion for a new trial?

    TargaGTS in reply to Juris Doctor. | December 28, 2021 at 6:37 pm

    I think the chances of that judge – any judge – in that county setting aside a jury verdict in a case where a black kid dies at the hands of the police are something less than zero. These cases, held in a county where entire city blocks were quite literally razed by a riotous, violent mob, are something MUCH more analogous to political show trials than they are an earnest search for truth and justice.

    Like you though, I am curious how potentially fruitful the appellate issues might be. But, as Andrew correctly says, appeals are for losers..

      JohnSmith100 in reply to TargaGTS. | December 28, 2021 at 9:31 pm

      “where entire city blocks were quite literally razed by a riotous, violent mob”

      The root problem is that these riotous mobs are being dealt with in an effective manner.

    The Packetman in reply to Juris Doctor. | December 28, 2021 at 6:38 pm

    JNOV would require a judge with some judicial backbone … Chu has none.

      aramissebastian in reply to The Packetman. | December 29, 2021 at 6:13 pm

      Trial judges tend to take the view that policy is for the appellate courts, and they are there to just apply the law as is.

      Also, there is considerable political pressure on trial judges to ‘play ball’ with prosecutor’s offices, who are assumed to have their collective ears to the ground, in terms of what the community wants by way of justice.

      Norm A LeSane in reply to The Packetman. | December 31, 2021 at 9:49 am

      I take it that the statement, “Appeals are for losers” is one of fact, and should not be an appeal to the emotionally charged.

      If the Judge blew the call on the defense’s objection to the prosecutors closing remarks. Then upon demonstration of that failure, retrial ought to be automatic.

      Are court officers under any oath to also tell the truth?

What might conscious disregard of risk have looked like in this case? Imagine that hypothetically Potter had found herself in a struggle alongside her fellow officers to lawfully arrest Daunte Wright, went to deploy her Taser, and suddenly realized that she’d accidentally left it back at the station house.

She then intentionally decides to draw her Glock 17 pistol, not to inflict deadly force but merely to pretend that it was her Taser in order to bluff Wright into ceasing his resistance. Then, in the full knowledge that she had an actual gun in her hand, something about the struggle induces Potter to unintentionally fire the weapon, killing Wright.

Arguably, such a knowing deployment of a firearm under those conditions would constitute creating an unjustifiable risk that Potter “is aware of and disregards,” as required for manslaughter in the first degree, or the creation of an unjustified risk that Potter “consciously took,” as required for manslaughter in the second degree.

Except that if she’d drawn the gun with the intention to fire it, she’d have been justified. So it seems perverse to argue that if she draw it without that intention, and then for some reason fired it anyway, she should be guilty.

    Doc-Wahala in reply to Milhouse. | December 28, 2021 at 7:06 pm

    Mulhouse, you nailed my thoughts with the last paragraph.

    I asked my friend, why are they arguing elements to prove it was an accident – why not open the defense with 1) he was about to inflict serious harm on a fellow officer and the law allows her to use deadly force. That’s our position. Then the state would argue but she yelled “taser”, she was distraught. Then the defense says “prove she is lying or just admit this was a mistake”

    I agree – if she would have drawn her pistol, this would be a different case where she isn’t guilty of using deadly force.

    Now it’s a crime to “accidentally” kill instead of just legally kill.

    MN deserves what they get when cops leave and any who stay deserve whatever comes there way.

      James B. Shearer in reply to Doc-Wahala. | December 30, 2021 at 3:00 pm

      “I asked my friend, why are they arguing elements to prove it was an accident – why not open the defense with 1) he was about to inflict serious harm on a fellow officer and the law allows her to use deadly force. That’s our position. ..”

      This sort of argument is likely to just annoy the jury. Potter an experienced police officer didn’t think using a gun was appropriate in this situation. Which is why she intended to use her taser and was appalled when she realized she had used her gun. You need to base the defense on this sort of mistake being tragic but not criminal.

    DaveGinOly in reply to Milhouse. | December 30, 2021 at 6:57 pm

    Exactly.

    Imagine you’re being attacked in a situation that would permit you to lawfully employ lethal force. You shoot and kill your attacker. All’s well that ends well? Not if you subsequently admit to police that the killing was a mistake because you accidentally pulled the trigger, and you had no intent to actually employ lethal force even though it would have been entirely justified. So now it’s “negligence” or “manslaughter”?

    How much sense does that make?

    It seems to me that all of Andrew’s “five elements of self-defense” were present in the Potter case (insofar as they apply to police, in which case you’re down to only three or four “elements”). How was she convicted when the entirety of the situation would have justified the lawful use of lethal force (as was testified to by a police witness)?

Well, on the upside, it would be difficult for an appellate court to say it was harmless error.

On the other hand, my trust in the American judiciary has been steadily erroding for years. I think the final ‘straws’ were first, Emmett Sullivan’s clearly personal vendetta against Michael Flynn, trying to run out the clock, which the DC Court of Appeals, en banc, allowed.

Second, the willingness of DC Circuit judges to allow the incarceration for almost a year, without bail or trial, of January 6 protestors.

Finally, while legally speaking self defense is legal throughout the country, in certain areas the DAs will descend on you with everything they have.

I am now a big believer in jury nullification.

I might note, in passing, my trust in police is suffering as they allow themselves to be used to persecute lawful self defense and covid enforcers. Yes, they are following orders, but I thought humanity rejected that premise after WWII. There are plenty of places where experienced law enforcement can find a job without sacrificing their soul.

    The Gentle Grizzly in reply to rightway. | December 28, 2021 at 6:59 pm

    I grew up in Los Angeles in the William Parker days. I do not despise police. I simply don’t trust them.

    If one asked me for the time of day I would not reply, “It’s [time]”. I would either show the LEO my watch, or say, “my watch says [time]”. I don’t want to get jammed up for “lying to a policeman” because the cop doesn’t like people with beards / people with red hair / people who are old / people who whatever.

    Yes, It’s that bad.

    Milhouse in reply to rightway. | December 28, 2021 at 7:39 pm

    I am now a big believer in jury nullification.

    Isn’t that exactly what this is? A jury deciding that the law is wrong and substituting its own view of what the law ought to be?

      henrybowman in reply to Milhouse. | December 28, 2021 at 7:44 pm

      No.
      Juries have the acknowledged power to acquit despite the law. They do not have the acknowledged power to convict despite the law. The latter is not considered jury nullification.
      The entire purpose of a jury is to serve as a check on state legal tyranny. Acquittal serves that purposes, conviction does not.

      TargaGTS in reply to Milhouse. | December 29, 2021 at 6:07 am

      In this particular instance, isn’t it a case of the PROSECUTION substituting its own view of what the law out to be and the failure of the judge in correcting that view that was expressed to the jury at closing arguments?

      I think the jury clearly got it wrong. BUT, the prosecution and judge certainly left the door wide open for them to misinterpret the statutory law, either purposefully or mistakenly.

      Milhouse: I agree with you that the jury nullification issue is a double-edged sword. But I will admit my bias on the question. I’m far more worried about juries abusing their power to convict innocent folks than to use their power to free guilty folks who should otherwise be convicted. I suspect that most, if not all of us here, share that bias.

        DaveGinOly in reply to Rand. | December 30, 2021 at 11:10 pm

        No, jury nullification is not a two-edged sword. Nullification negates the law by which a defendant is being prosecuted. It does not substitute a jury’s opinion of how the law (or another law) should be enforced, by employing that opinion against the defendant. “Nullification” means a jury refuses to enforce a law with a verdict of “guilty” by delivering a verdict of “not guilty”. It has no other “edge.” It nullifies a prosecution by a refusal to convict, period. Anything else is not jury nullification.

      alaskabob in reply to Milhouse. | December 29, 2021 at 1:19 pm

      No…this wasn’t nullification. I’d factor in selection bias, the environment and what they were given for evidence and instruction. In Minnesota, today, a “not guilty” verdict would be nullification. The biggest argument is that in a court room reality is left outside in the hallway… usually ignored. In Minnesota a ham sandwich .. could be.. and probably was….convicted.

      aramissebastian in reply to Milhouse. | December 29, 2021 at 6:18 pm

      Elected district attorneys are political animals.

      They’re not going to bring unpopular prosecutions, because they’re a loser, and the stink attaches to the DA. I know in my jurisdiction the DA lost a lot of high profile cases, and there were open questions about his competence.

      As a result, you’re not going to see a lot of jury nullifications.

      DaveGinOly in reply to Milhouse. | December 30, 2021 at 11:03 pm

      No, it is not. Jury nullification occurs when the jury refuses to convict in the teeth of the evidence and/or the law. The jury “nullifies” the law, as when northern juries refused to convict people of violating runaway slave laws, based upon their own judgment of the (immorality) of the law, enforcing as it was the (immoral, by the jury’s lights) institution of slavery). A modern-day equivalent would be the acquittal of a father who killed the molester of his child. The jury could think justice was done in the act of killing, and/or that justice and morality was better served by their failure to convict. (Not that they necessarily believe the killing was a good thing, but that the punishment of the father would be an unjust act.)

      I don’t know if what the jury did in this case has a name, but it is not jury nullification.

“That’s not the law of manslaughter and not the law of recklessness.”

So… during the state’s rebuttal, if it deliberately misledes the jury as to the letter of the law, it’s not incumbent upon the judge to correctly instruct the jury??

This blatant miscarriage of justice is clear to the cops on the street in MN who are choosing to stay out of prison by opting to wait for the call to take a report AFTER the fact rather than actively attempt to lower crime rates.

Jonathan Cohen | December 28, 2021 at 7:22 pm

This decision has left me having trouble sleeping. Kim Potter served the public for 26 years in a dangerous job protecting the public and this is what she gets for it. The suspect had a warrant for his arrest on a gun charge, he had an order of protection against him, there was a woman in the car who could have been the woman with the order of protection, the suspect’s car smelled of pot smoke, and he resisted arrest and attempted to flee. With a fellow officer partially in the car, Potter had a split second to try to stop him from fleeing and in the heat of the moment grabbed the wrong weapon.

The prosecution misrepresented the law to the jury, taunted Potter by snarkily telling her she had no real remorse but only cared about her own situation when it should have been clear to anyone that she had wanted to use the taser to avoid hurting the suspect. On top of that the prosecution is asking for enhancements in sentencing.

How does such scum get to be prosecutors. That may seem obscene but I watched some of the trial and I thought I was watching a Soviet show trial.

    JohnSmith100 in reply to Jonathan Cohen. | December 28, 2021 at 9:41 pm

    I would argue that she grabbed the right weapon.

    TX-rifraph in reply to Jonathan Cohen. | December 29, 2021 at 6:57 am

    “…a Soviet show trial.” That is the model.

      aramissebastian in reply to TX-rifraph. | December 29, 2021 at 6:29 pm

      Since you mention it, I can’t resist:

      The essence of the Soviet show trial was the coerced confession, without any corroboration.

      Thus, you had the spectacle of dedicated communists, with years of loyal service to the revolutionary cause, confessing to being foreign spies.

      People couldn’t understand it, but went along, because after all, they confessed.

      In our system of justice, there has to be corroboration. A confession standing alone won’t do it.

      And a confession can’t be coerced.

      So, Stalin’s secret police tortured confessions out of people — one high ranking communist official is described as “a skeleton with all his teeth knocked out.” Interrogators excreted in the mouths of the accused. One man finally confessed when his 16 year old daughter was violated in front of him.

      So, probably, we’ve got a ways to go . . .

The prosecution deliberately misled the jury on the law?

Well, so did Flufferboy: “You lose the right to self-defense when you’re the one who brought the gun.” Absolutely false. Presumably, the judge issued correct instructions that educated the jury to understand it was false.

Why didn’t Chu?

It’s a political trial aimed at no rioting. An appeal will be the same thing without serious change of venue.

We don’t quite have a system where the wrong people will do the right thing yet.

    henrybowman in reply to rhhardin. | December 29, 2021 at 2:03 am

    and i a closed system, where the only check on the Swamp is the Swamp, we never will.

    TX-rifraph in reply to rhhardin. | December 29, 2021 at 6:55 am

    “It’s a political trial aimed at no rioting. ”

    Perhaps the “no rioting” is only cover for the true agenda. Perhaps it is a political trial aimed at destroying local policing and then bringing in the federal neo-Stasi to “help” with the crime. Think Chicago. Ellison has an agenda and its not good for freedom or justice.

Chu and Larson are the pair that should be sitting in a jail cell without bail right now

The state argued that when she drew the weapon without checking, that she consciously disregarded the risk of a misdraw. They essentially argued that she knew that there was a chance that a gun was in her hand, but didn’t say that outright. Saying it outright would’ve made it more obvious to counter.

That argument could’ve easily been refuted by pointing to various pieces of evidence: her testimony of how her brain just said grab the taser and that she just grabbed it, the high intensity of the situation working against self-reflective thought, that common sense shows that if she had such a thought she would’ve glanced at the weapon, and her surprise and hysterical reaction disproving such willful blindness.

But Earl Gray didn’t explicitly make such compelling arguments. He inexplicably spent a large portion of time on causation and minimal time on mens rea. He said something along the lines of “how could she be reckless if she wasn’t consciously aware of the gun” and left it at that.

    I’m not sure that’s what the state was claiming, that she consciously disregarded the risk of a misdraw, rather than consciously disregarding the misdraw itself, But, in order to consciously disregard the risk of drawing the wrong weapon, she needs to realize that she engaged in risky handling of the gun in the first place. In effect, the state, saying, she didn’t realize she was creating a risk, but she somehow realized that she was creating a risk of a risk just takes the question of what she knew back a “step” and begs the question. Was she consciously aware of that risk then? Or was she unaware of that risk too? But wait. Why stop there? If she didn’t realize that risk (i.e the risk that she might do something risky), then maybe she consciously disregarded a risk that she ran the risk of risking doing something risky. And of course, in each of those iterations, there is still no evidence that she consciously or intentionally ignored any of those risks. The bottom line, it’s just a convoluted contra-factual rabbit-hole of an argument to start with, and doesn’t deserve any serious consideration for anybody with half a brain. Not sure these jurors had half a brain. In light of that, maybe Earl Gray doing a better job of making all of this clear could have made the difference.

The judge is bought…the tell is .her denying bail for Christmas, adding insult to prosecutorial injury.

When those required to uphold the law, lie, and are bent by politics, there can be no justice. Despite the fact this was a mistake by an officer in the midst of a tense situation caused by the criminal victim, the “court” simply could not allow this to have the same righteous outcome as the Rittenhouse attempted lynching.

Potter could win on appeal…in the act of doing police work it is not criminal to make a mistake, especially one that will stay with the officer his or her entire life.

The law doesn’t matter anymore. Sufficient media attention is all it takes to railroad innocents to convictions they didn’t deserve.

How awful it must be for you. Well, not nearly as awful as it was for Kim Potter. You thought you served in a system of law.

Now we have to pretend that people who have hated the cops their entire lives can serve on juries as long as they say the magic words’, “But I can be fair.”

    henrybowman in reply to Arminius. | December 29, 2021 at 2:12 am

    I preferred the previous operational model, where ne’er-do-wells schemed inventive ways to avoid jury duty.

    TX-rifraph in reply to Arminius. | December 29, 2021 at 6:47 am

    What if hating cops is now a qualification to sit on a jury? How did the Soviets pick jurors for their “trials?”

      Milhouse in reply to TX-rifraph. | December 29, 2021 at 10:39 am

      They didn’t have juries. Trial by jury was introduced into Russia in 1864, copied from the UK; the Soviets abolished it, and it was reintroduced after the USSR fell.

      aramissebastian in reply to TX-rifraph. | December 29, 2021 at 6:34 pm

      In Stalin’s time, it seems pretty well established that the verdict was decided before the trial.

      And there were no lay jurors.

      In most case, there was a ‘dvoika’ or ‘troika’, that is 2 or 3 person panels, composed of party officials and representatives of the secret police, who passed sentence, including death, in 10-20 minute proceedings.

Then they go into the jury room and ask why they’re even considering evidence because all cops are guilty. And what I want to know is, how weak are the rest to put up with this shit. And I need to put it exactly this way. I could put it in milder terms. But it’s bullshit.

    TX-rifraph in reply to Arminius. | December 29, 2021 at 6:45 am

    “…how weak are the rest…”

    I have thought about that. Perhaps these people either think there is no final judgement or they think they can simply blame the pressure from the politics or bullies on the jury for the sale of their souls and thus receive a pass. I am disgusted with this dishonorable court — the judge, jury, and prosecutors.

I’m so ignorant of the law that I don’t understand how she was charged and convicted of both First and Second Degree Manslaughter. Pick one. The requirements are different.

    Wise_Jedi in reply to hvlee. | December 29, 2021 at 1:24 pm

    I am not a lawyer. I think it’s a deplorable practice that should have never been permitted in the first place. It’s called throwing everything including the kitchen sink at the wall and praying to God SOMETHING STICKS!

    I think prosecutors should ONLY be able to charge the main, most serious offense and if they can’t prove the elements of the crime, then too bad so sad.

      aramissebastian in reply to Wise_Jedi. | December 29, 2021 at 6:35 pm

      The irony of this situation is that there may actually be a consensus emerging on the right and left regarding common prosecutorial practices in our system of justice.

Retiredlitigator | December 29, 2021 at 9:25 am

And so Officer Potter is wrongly convicted of two counts of manslaughter for negligently/carelessly deploying her service weapon instead of her taser, resulting in the death of a fleeing felon, whereas Officer Boyd of the DC Police is lauded for “saving countless lives” (per his opinion) for INTENTONALLY KILLING ASHLEY BABBITT. Please remind me again why the Statue of Justice wears a blindfold.

    What you just said is the key problem with this conviction. The manslaughter statue for which Potter was convicted is not about a negligent or careless act. One of the necessary elements of the crime is an intentional or conscious dangerous act, the danger of which is deliberately ignored. It is utterly obvious from the evidence that she unintentionally drew her service pistol by mistake, not deliberately. The Boyd shooting can be honestly debated. The Potter conviction, not so much.

    henrybowman in reply to Retiredlitigator. | December 29, 2021 at 7:44 pm

    So she can’t identify her rapists.

I am not surprised by this verdict at all. The Chauvin jury convicting him of three degrees of murder for the same act shows juries are too afraid of the “mob’ to think correctly and deliberate on the law.

The fact the judge never told the jurors in the Floyd trial they can’t convict him of three types of murder for one death when he saw their verdicts is another thing I can’t understand, no matter what that state’s law allows in trials.

So Chauvin, and Potter being convicted doesn’t shock me, but it does disappoint me. Only in Clown World can a man with a lethal level of Fentanyl in his blood be “murdered” without any significant internal bruising or other trauma.

So manslaughter that requires malice conviction without any proof of it doesn’t surprise me at all now.

    CuriousJustice in reply to Dwo888. | December 29, 2021 at 10:56 am

    Multiple charges and convictions for one act is perfectly normal and happens all the time. The defendant is only sentenced on the most severe offense though due to double jeopardy.

    The reason juries are asked to return convictions on multiple counts is that if one is overturned, the others still stand and the defendant is just resentenced on the lower count.

      Wise_Jedi in reply to CuriousJustice. | December 29, 2021 at 1:25 pm

      This is a horrid practice. Only the most serious offense should be allowed to go forth. All this crap with L.I.O.s should be done away with. It’s crooked and intended to make sure even the most truly innocent get convicted of something.

        I am inclined to agree.

        The problem here for me is that the prosecution should only bring charges that they can prove beyond a reasonable doubt. Charging an LIO is almost an admission that the prosecution isn’t confident in proving the top count.

        It just seems a bit squirrely for the prosecution to have the option to say:

        I will prove beyond a reasonable doubt that you committed crime A.

        Oh, don’t believe that?

        Would you believe that I will prove beyond a reasonable doubt that you committed LIO crime B.

        Oh, don’t believe that?

        Would you believe ….. etc.

        Kind of reminds me of Maxwell Smart.

      “happens all the time”

      Yes, that’s the problem.

I thought Potter got a raw deal but Chauvin really got screwed

2 cops lives ruined over law breaking animals

People of MN must be really messed up in the head

oh well, don’t live there nor do I plan to or even visit for that matter

It’s not surprising that George Floyd move to MN to continue his criminal life

had he stayed in TX, there wouldn’t have even been a trial

Stand by prediction

GOP candidate takes MN EVs in 2024

there’s supposed to be a “my” in there someplace

One of the reasons I have never served on a Jury is my personal believe that I as a juror am required to understand the law/statute and how the law applies to the facts.

Contrary to a substantial body of case law, I am morally and ethically bound to determine what the law is, and not rely on the judge’s interpretation of the law.

    I’m fine with being on a jury and following the law to reach a verdict. But, if I felt that a law was so objectionable that I could not overcome my bias against it, I would simply say so and would, no doubt, be excused. At least, that’s how it’s supposed to work.

      Joe-dallas in reply to Rand. | December 29, 2021 at 3:17 pm

      Rand – let me clarify my point regarding statutory interpretation vs “following the law”

      As a juror, my personal ethics and belief is that I have to ascertain the correct legal interpretation of the statute and then determine if the facts in the case applies to the correct legal interpretation of the statute. That is entirely separate for deciding the case base on what I think the law should be.

      For example, if the judge says the elements of the crime are A, B , but not C, -then I have to ascertain if the statute actual says the elements of the crime are A, B but not C. Its not whether I agree that A or B should be an element, the only question is whether that is the correct interpreation of the statute.

        henrybowman in reply to Joe-dallas. | December 29, 2021 at 7:53 pm

        The entire undertaking is undermined by the concept of “case law” — that is, the words of the statute don’t necessarily mean what a thinking person thinks they should mean… because ten years ago some judge decided they didn’t for some reason — sometimes a very good reason, such as “interpreting them in manner X leads to unconstitutionality, but they can still be interpreted in manner Y”; but more often because “interpreting them in manner X robs us of a power we crave, so from here on out it will be manner Y.” There are NSA-sized computer systems that lawyers use to keep track of all this crap, and you don’t have them.

        I yearn for the older days when actual presidents could say stuff like this about the constitution, never mind statute law:

        Each public officer who takes an oath to support the Constitution swears that he will support it as he understands it, and not as it is understood by others.
        –ANDREW JACKSON

        My construction of the constitution is very different from that you quote. It is that each department is truly independent of the others, and has an equal right to decide for itself what is the meaning of the constitution in the cases submitted to its action; and especially, where it is to act ultimately and without appeal.
        –THOMAS JEFFERSON (TO SPENCER ROANE)

        The court will expect you to follow the jury instructions as to the meaning of the law. If the law is not clear, the judge is supposed to fill in the blanks, so to speak. It’s up to the judge to take account of both the statutory and applicable case law as well as the laws of evidence. The court definitely does not want you thinking about the laws or their meaning outside of that box. I could live with that as a juror, so long as I didn’t find the laws involved to be unconscionable. We can be forced to show up for jury duty, but fortunately we can’t be forced to sit in judgment.

    aramissebastian in reply to Joe-dallas. | December 29, 2021 at 6:36 pm

    Laudable, except that if all like-minded persons decline to serve on juries, there’s your explanation.

I hear a lot of excuses being made for Potter.

Let’s remember this: she was a 26-year veteran of the force who couldn’t tell the difference between her sidearm and her Taser. Further, she was a training officer.

And this is apparently excusable for some folks.

Having been there when an idiot cop (BIRM) repeatedly flagged me, my wife, and fifteen third graders, with his Booger Hook on the Bang Switch of his Glock (LOOK MA, NO SAFETY!), I don’t find it excusable.

I hope this verdict gets a lot of cops to quit. Because the ones who will quit are the ones that know, deep down, that they are likely to be this stupid.

Honestly, we don’t need the cops nearly as much as the cops want us to think we need them. We got on just fine without them for over a century. We can do that again.

    Cops are useless if the prosecutors won’t prosecute criminals.

    Prosecutors aren’t much use either if the states sentencing guidelines are friendly to evil doers.

    Regardless of your opinion about what you wish the law was, or your negative opinion of police officers, trials are expected to follow what the actual law says.

    The foundational principle of legality is the basis for an attempt at achieving a just legal system, a system based on the rule of law, and not of men. Certainly, even with all the safeguards built into the system, there are many injustices. But without the rule of law, there can be no justice whatsoever.

    In any case, to get down to the particulars, I challenge you to make a case for conviction given the actual applicable law and evidence in this case. In fact, I’m so perplexed by this verdict, I would be happy to hear even theories about what the jury reasoning could have been to arrive at this conclusion.

    Here is a link to the jury instructions for those who are interested:

    https://www.mncourts.gov/media/StateofMinnesotavKimberlyPotter.aspx

      TheAbidingDude in reply to Rand. | December 29, 2021 at 5:04 pm

      Two words: “Felony stupid.”

      Four words: “Special trust and confidence.”

      If I had been that stupid with deadly force as a Marine back in the day of Ronaldus Magnus, I would have gotten Murder Two. Not manslaughter.

      With the degree of authority we’ve vested in law enforcement officers, anything less than perfect execution has to be treated as reckless disregarded.

        I was sort of hoping for some substantial legal reasoning concerning the specific charges in this case, but none of what you just said has anything whatsoever to do with any actual laws.

        Although, maybe there really is a penal code section for “Felony stupid” and they somehow forgot to list it on Lexis-Nexis. You think?

    Wise_Jedi in reply to TheAbidingDude. | December 29, 2021 at 1:27 pm

    She has spent the vast majority of her career on desk duty and in all her career she’s never before been required to use her weapons. That says a lot of good about her approach to her job.

    just kinda wanna know

    What’s it like to be insane?

    cause you be, like to the tenth power

Jury of your peers…Do not live in a city, county or state where your peers are all clinically insane.

That city will burn to the ground. As it should.

    Rand in reply to Andy. | December 29, 2021 at 1:24 pm

    I live in Los Angeles. God help me if I ever have to use deadly force in self-defense. Chances of a fair trial in this jurisdiction are not good. There is something to be said for voting with your feet and finding a better saner place to live in. But I can’t bring myself to be chased out of the place where I was born and raised by mobs of virulent woke scoundrels.

      tlcomm2 in reply to Rand. | December 29, 2021 at 4:35 pm

      Born and raised in LA. Don’t let anything stop you from running out of there. Leave it to the woke and enjoy your life. Here in Montana we don’t have those woke issues – outside of maybe Missoula and Bozeman. Homeless freeze too, so move to warmer climes. Only thing I miss is roach coach burritos

      Andy in reply to Rand. | December 29, 2021 at 5:50 pm

      In reading the case of the 14 year old girl catching a bullet in the dressing room… note that the maniac attacked SEVERAL women before cops arrived.

      So what I see there is that in one of the most DANGEROUS cities in the country not just one, but several women were not packing pepper/OC spray on the ready. I don’t expect many women to pack heat, but they damn well be packing the hot sauce and in the city like that, be ready to use it anytime anywhere.

      Now the robbers / gang members are following shoppers home and robbing them there. You are out numbered by design in these attacks. Oh- and ONLY the criminals get to carry guns.

It’s about training.

I’ve learned that when things go to shite, you (your actions) will default and respond how you’ve been trained to respond. This is well known across all endeavors in life (especially law enforcement). This raises the most important question as to whether this type of situation has been trained for? Was Potter trained to recognize / feel the difference between the taser in hand versus the Glock in hand when under extreme stress?

All systems on this planet move forward when the real situation arises that shows us our failure(s) to plan for unknown or not well-understood circumstances.

From what I have seen and read, Potter responded responsibly through the situation, even yelling “taser, taser, taser,” as she had been taught. Her reaction after discharging the firearm was not rehearsed. As such, I do not believe that Potter was the problem, but she has now become the victim (scapegoat) of the system’s response to it’s failure.

I agree with Andrew on this. The verdict is just obviously and blatantly wrong on the law and applicable evidence. At this point, I am utterly perplexed. It’s hard to understand what sort of combination of bias, fear, stupidity, or combination of those things on the part of the jury could have led them to this verdict.

Does anyone know if Kim Potter is going to appeal bail denial?

I was disappointed that the defense didn’t object to the notion that Potter held up a big square bright yellow taser instead of a Glock. They should have shown the jury what holding the taser in your had to shoot it looked like. It would have been very close to the Glock. They allowed the big yellow taser to remain in the jury’s eyes as such an obvious mistake. Another thing that they should have done is bring the stupid dual carry holster and show the jury how easy it would be to draw the wrong weapon. A taser and a gun should never be placed on the body in the same area. That holster was a sisaster.

One juror has gone public, sounds like the jury was confused and wanted to go home
“The day that we asked the judge what would happen if we can’t reach a decision, we were evenly split on manslaughter 1 at four guilty, four not guilty and four ‘I have no idea,'” the juror said.

“And at that point we were just arguing semantics and kind of in circles. … Those last couple days were literally just focusing in on the language of the law,” the juror said.

https://www.msn.com/en-us/news/us/juror-in-kim-potter-trial-speaks-about-how-jury-found-ex-officer-guilty-in-daunte-wright-s-death/ar-AASfCzQ?ocid=msedgdhp&pc=U531

Oh crap. I thought maybe a biased or fearful jury, but it sounds like the members of the jury were just too feeble-minded to properly do the job that was asked of them. They might as well have just flipped a coin. Pretty sad.

    aramissebastian in reply to Rand. | December 30, 2021 at 11:05 am

    Before I became an attorney, I used to heap scorn on juries.

    When I became a trial attorney, I quickly learned that you strike all the natural leader types from the jury, and keep only the sheep — the lowest common denominator, in other words — because they’re most likely to accept your arguments, and the last thing you want is some super juror taking over the deliberations, like Henry Fonda in 12 Angry Men.

    So, as much as possible, you end up selecting jurors who don’t have a strong opinion on anything; don’t know much about anything; and are very suggestible.

    theyeti in reply to Rand. | December 30, 2021 at 1:08 pm

    This is, unfortunately, a likely representation of those who would be chosen to be our “peers”

Hopefully, there is a basis for reversal-anyone think of contacting Alan Dershowitz?

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