Welcome to our coverage of the Kim Potter manslaughter trial over the April 11, 2021, shooting death of Duante Wright in a suburb of Minneapolis, when then-police officer Potter accidentally used her Glock 17 pistol in place of her intended Taser.
Today was the fourth day of the trial proper, and although today the State worked through seven more of its witnesses in its case in chief it nevertheless appeared to once again to do little but provide evidence on factual matters not in dispute and to which I’m confident the defense would have been happy to stipulate.
The State did not, however, appear to substantively advance a theory of manslaughter based on today’s testimony. Indeed, most of the day appeared to be an excuse to show the jury numerous and various bloody photos of Duante Wright, his vehicle, his clothing, and so forth.
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Dr. Lorren Jackson, Medical Examiner
The State’s first witness was Medical Examiner Dr. Lorren Jackson, with the direct examination by ADA Erin Eldridge. Cross-examination would be by Attorney Earl Gray.
Dr. Jackson testified that Duante Wright’s cause of death was a 9mm round to the heart, and the manner of death was homicide—that he was shot by Kim Potter. I know—utterly shocking.
These undisputed facts took nearly an hour of direct and re-direct testimony. In contrast, the defense spent merely about 5 minutes on cross-examination and re-cross.
There was some discussion on direct and cross about how long someone shot through the heart as Wright had been would remain conscious, with the State arguing for zero or only a few seconds and the defense arguing for as long as perhaps a minute.
This would presumptively be arguing on the question of whether shooting (or Tasing) someone in control of a vehicle is per se reckless because the impaired driver operating the vehicle presents as a foreseeable deadly force threat to others.
Special Agent Melissa Loren, BCA Forensic Investigator
Loren was one of the half-dozen BCA investigators called today as witnesses for the prosecution.
Loren’s job was as an on-scene investigator, doing a walk-through of the crash and traffic stop scenes, collecting bits of evidence, finding Potter’s fired cartridge case inside Wright’s vehicle, having Wright’s vehicle towed to the BCA vehicle inspection garage, where BCA conducted a comprehensive examination of the vehicle.
This testimony took about 45 minutes of direct examination, and only about 3 ½ minutes of cross-examination—that brief cross-examination was interrupted by a 5-minute sidebar during which Judge Chu refused to allow the defense to ask about a digital scale discovered in the center console of Wright’s Buick.
The evidence she found was consistent with Potter having shot Duante Wright once in the chest at the site of the traffic stop, then Wright’s car traveling about a block until it crossed into oncoming traffic and smashed into the Lundgren’s vehicle, where it stopped. From there, Wright’s body would be removed from the vehicle by first responders and after some unsuccessful aid be declared deceased.
Again, shocking.
SA Brent Petersen, BCA Force Investigative Unit
Next up was Special Agent Brent Petersen, who works for the BCA’s Force Investigative Unit—this is the special unit that focuses on use-of-force events involving Minnesota police officers. The direct examination was conducted by ADA Joshua Larson, and cross-examination by Earl Gray.
The purpose for the State calling Petersen as a witness appeared to be so that they could have him explain to the jury what he personally saw on various body cameras and dash-camera videos. In particular, the State had prepared a composite video including the body camera of Potter, the body camera of Sergeant Johnson, and the dash camera from Officer Luckey’s squad car.
The major point of Petersen’s testimony was apparently to argue that the bodies of Johnson and Luckey were already outside of the vehicle when Potter fired her fatal shot, such that her use of force was not necessary in order to prevent the two other officers from being dragged in the vehicle.
Of course, the officers had pulled back from the vehicle only in response to Potter’s cry of “Taser! Taser! Taser!,” and by that point, she had definitively committed to firing what she believed to be her Taser—a use of force that would have been reasonable to prevent Wright from fleeing the arrest scene at speed in the Buick and endangering bystanders in his path, even if Johnson and Luckey were no longer in danger. In any case, had Wright chosen to reverse, the open car doors would have swept up all three officers.
The defense made strenuous objections to this use of Petersen’s testimony, basically narrating what was visible in the videos, on the grounds that the videos spoke for themselves, and the jury could make their own assessments of what they saw.
Apparently, ADA Larson had first proposed to make these arguments using still photographs, which the Judge had ruled against because the stills failed to capture the dynamic nature of the event. As an alternative, Larson then chose to freeze-frame the actual video—which is not, of course, substantively different than using the still photos. This led to repeated objections, allowances, more objections, and that brought us right up to lunch.
Separately, it was also notable that the State’s presentation of this composite video appeared to have been slowed down to 50% speed—without informing the court that this was being done—which suggested far more time for decision-making than was actually the case. Also, Potter’s body camera footage was offset a full second from the other two videos that made up the composite.
Separately, Larson had also used Petersen to attest to the particularly injurious nature of hollow-point bullets.
After lunch, Judge Chu informed the prosecution that she would not allow them to continue on this composite video path, and immediately thereafter the State was done with direct of Petersen.
On cross-examination, Gray drew out that hollow-point bullets were routinely used by law enforcement because they were safer for bystanders, and that Petersen himself carried hollow-point bullets in his duty weapon. Gray also drew out that a body camera could only capture a small fraction of the visual information available to the wider field of vision of a police officer’s eyes, as well as the officer’s ability to direct their vision independent of the body camera’s perspective.
SA Michelle Frascone, BCA Force Investigative Unit
Next up was Special Agent Michelle Frascone, also from the BCA’s Force Investigative Unit. Frascone was involved in evidence collection at the traffic and crash sites, as well as the collection of the Glock 17 pistols from Sergeant Johnson and Officer Potter.
The direct examination was by ADA Joshua Larson, and all we learned from Frascone was that Office Potter had used her own Glock to fire a 9mm round into Duante Wright.
So pointless was Frascone’s direct testimony that the defense did not bother to cross-examine her at all.
SA Sam McGinnis, BCA Force Investigative Unit
Next up was Special Agent Sam McGinnis, again from the BCA’s Force Investigative Unit. Here we finally discovered some interesting information, although little of it seemed helpful to the State. Direct was again by ADA Joshua Larsen, and cross-examination would be by Attorney Paul Engh.
For example, we learned that Kim Potter had received her Taser 7, a brand new model to the Brooklyn Center Police Department, on March 26, 2021, only about two weeks prior to her attempt to use it on Duante Wright on April 11, 2021. Indeed, it was suggested that at the time Potter was the only officer in the entire department equipped with this new model Taser. Indeed, it was unclear if Potter had ever received substantive training on the new model Taser.
ADA Larson also sought to make a big deal out of the apparent fact that Kim Potter had function tested her Taser only 6 of the 10 times she was on duty between when she was first issued the new-model Taser and when she sought to use it against Duante Wright, when policy called for her to test the Taser before every shift.
None of this meant the Taser was in any way dysfunctional because of her failure to test it—when it was later tested about a month later by SA McGinnis, it tested fine, with 78% batter, plenty to work as intended, even without any tests in the intervening period.
ADA Larson also made a big point out of the fact that the Glock weighed about 2 pounds whereas the Taser weighed about 1 pound. Larson also had McGinnis point out the various other ways the two weapons differed, including in color, grip size, lights on the Taser but not on the Glock 17, and so forth.
The implication of all this, of course, was that Potter should have known that she was holding a Glock 17 and not a Taser. I’d note, however, that “should have known” is the standard for a finding of civil negligence, not criminal culpability.
Criminal culpability requires recklessness,, an intentional disregard of a known deadly force risk, and by all appearances Potter believed she had a Taser in her hands. That mistake certainly appears negligent, but not reckless, and thus not criminal.
Then Larson proposed to have the jury actually hold a deactivated Taser in their hands, and apparently also hold a Glock 17 frame, I guess so they could feel the difference between the two, but Judge Chu did not permit this.
On cross-examination, Paul Engh emphasized that this was a new Taser–he actually twice called it a “gun,” and corrected himself, a clever ploy–and that any failure to test every shift had no substantive consequence, that McGinnis might know how often officers were supposed to test but did not know how often officers actually tested, and so forth. Engh also noted that when McGinnis had accompanied a consenting Potter to the hospital for a blood test for drugs, nothing was found in her system.
Notably, Engh also asked McGinnis if the Special Agent had ever asked the Taser company why they designed their Taser to be shaped in essentially a pistol-like configuration, instead of some distinct shape designed to avoid confusing Taser and pistol, and McGinnis responded that he did not know why.
Forensic Scientist Eric Koppen, BCA DNA Technician
Next up was BCA DNA Technician Eric Koppen.
All we learned from him was that the DNA in the blood found in the white Buick was that of Duante Wright, except for a small portion of blood in the passenger area of the car that was unmatched by DNA but almost certainly that of passenger/girlfriend Albrecht-Payton.
Shocking
Direct was conducted by ADA Joshua Larson, and so pointless was this testimony that the defense declined to cross-examine Koppen at all.
Ballistic Scientist Travis Melland, BCA Firearms Technician
The final witness of the day was BCA Firearms Technician Travis Melland. He testified that a test bullet fired from the Glock 17 of Kim Potter matched the bullet recovered from the body of Duante Wright.
Shocking.
Curiously, although ADA Larson had Melland testify that the trigger weight of Kim Potter’s Glock 17 pistol was 5.5 pounds (perfectly normal for an OEM Glock 17), larson never obtained any testimony on the trigger weight of Potter’s Taser 7.
Again, so pointless was this testimony that the defense declined to cross-examine Melland at all.
End-of-Day
With that, Judge Chu decided to recess court a bit early for the day. She did note that she had two written motions from the State to review tonight, and the defense indicated that they would respond orally in the morning.
ADA Joshua Larson also made a request for an in chambers meeting to discuss “an issue” before everyone went home for the night, but that was obviously done outside of the broadcast window for the day.
TUESDAY: DAUNTE WRIGHT SHOOTING TRIAL DAY 5 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
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Four days now and still no evidence that an offense was committed. Prosecution has presented evidence Wright was in the process of committing a violent felony and that the officers were in imminent danger of great bodily harm or death, and that if Wright were allowed to drive off he would be a deadly force threat to the public. So, for count 1 and count 2, how is the prosecution going to prove beyond a reasonable doubt that the defendant “unjustifiably” put Wright in danger of great bodily injury or death by pointing a gun at him and shooting him? And for count 1 how is the prosecution going to prove beyond a reasonable doubt that the defendant “consciously” did this? And for count 1 and count 2 how is the prosecution going to prove the defendant’s conduct constituted a gross deviation from the standard of care which a reasonable person would exercise in the situation?
Excellent questions. Of course, one risk of the jury trial system, is that the jury convicts you despite all that. Which is why we never better checks before we put people at risk of a jury.
Would you say that, as a general rule (barring political bias), the victim can use lethal force against an unarmed attacker, only after the victim has already suffered lethal force or great bodily harm from the attacker? In the case of Zimmerman, Martin discovered Zimmerman’s gun and was going for it, so Martin was arming himself, just as Wright was arming himself with his car. So the question is, does the prosecutor, judge and jury need to see great bodily harm already done or intent to kill in order to not charge or acquit the victim of using lethal force in self defense?
No. When you use force against an attacker because he has caused you great bodily harm, that is considered revenge and is not justified. You are justified in using deadly force to protect yourself from an imminent use of force or an actual ongoing use of force that you reasonably believe will cause you great bodily harm or death, or if you are lucky enough to live in a state with a proper codification of the common law of self defense, to protect yourself from a felony accompanied by a use of unlawful force.
The general rule in effectively using force in self defense is that you have to be the first person to use physical force in the encounter, and that applies in both the case of unarmed or armed assailants. Most people are not physically able to do anything to defend themselves after someone has used lethal force upon them. Zimmerman was just lucky that, after being struck in the head with fists, going to the ground, and then being mounted and having his head bashed into the concrete, his brain was still functioning well enough to allow him to draw his firearm and defend himself. Really, the chances that Zimmerman would have been able to defend himself after that were probably less than five percent.
Zimmerman was justified in using deadly force because he was on his back and Martin was attempting to murder him by bashing his head into the concrete. There was evidence of that happening. I don’t think there was really any evidence that Martin was attempting to take Zimmerman’s gun and use it on him.
I didn’t say you had the right to be the initial unlawful aggressor. The initial unlawful aggressor is the first person to threaten to use, attempt to use, or use unlawful force in the encounter. To effectively defend yourself you have to fit your use of defensive force into that gray space between your assailant’s threat to use force on the present occasion and his actual use of force on the present occasion.
Hi Big o. Thanks for your response, but I think you missed what I was trying to ask, or maybe I didn’t explain the question properly. Say an armed person is attacked by an unarmed person. The attacked person must defend him or herself with tools in the non-lethal bucket and is not allowed to use lethal force. I agree that revenge is ilegal when the attacker’s force is over, but my questions is about the point where attack in ongoing, sustained, not over and is in the process or rising to the level of lethal force, or the victim can foresee and articulate that the force used against him was ***becoming *** lethal and/or great bodily harm, only then he his allowed to use lethal force. So the attack reached ***or was reaching*** the articulable level of deadly force – loss of consciousness while armed, then it becomes a second fight. Or is this argument just speculative? DA Binger would say, “you’re guilty because you shot an unarmed man”. Maybe the answer is, was it reasonable that you though you were about to die?
About my comment about Martin discovering Zimmerman’s gun, Wikipedia says, “According to Zimmerman’s father, during the struggle while Martin was on top of Zimmerman, Martin saw the gun Zimmerman was carrying and said something to the effect of “You’re gonna die now” or “You’re gonna die tonight” and continued to beat Zimmerman.[152].” Another Wiki quote, “Martin told him to “Shut the ___k up” as he hit him in the face and pounded his head on a concrete sidewalk.[161] When Zimmerman tried to move off the concrete, Martin saw his gun and said “You’re going to die tonight (beep)!” Martin grabbed for the gun, but Zimmerman grabbed it first. He said after firing his weapon at Martin, he was not sure at first that he had hit him, so he got on top of him in order to subdue him.[160][161]”. If this is true, it would seem that Martin was going for Zimmerman’s gun.
“Say an armed person is attacked by an unarmed person. The attacked person must defend him or herself with tools in the non-lethal bucket and is not allowed to use lethal force.”
That is a popular myth in the United States, like the myth that a non-aggressor had a duty to retreat under the English law before he killed the aggressor, and like the myth that there ever was such a duty to retreat in the United States.
The armed victim of an unlawful use or imminent use of force by an unarmed man is justified in killing the unarmed man when he reasonably believes it is necessary to protect himself from imminent great bodily harm or death, or any forcible felony. The reason the law is written that way (from gbh or death, or any forcible felony) is twofold: first, not all people who could cause you gbh or death are capable of committing a forcible felony and second, because not all forcible felonies put you in imminent danger of gbh or death.
I could go on and on, but I have to head up to the tire shop with a tractor tire. Need that cab tractor going to feed with when we get a snow here.
Thanks again for your response. Hope you got the tire on the tractor. I read somewhere that the reason Old English law required retreat is because the king didn’t want his subjects hurt or killed. Stand your ground, I understood, was of American origen, where real men don’t back down. A fast Google search, I found
Originally, English common law was based on the sanctity of human life, and really the only person authorized to take a life was the King. In fact, if someone came after you, you were supposed to retreat to the “wall behind your back” before fighting back with force. That was called the duty to retreat. The King was the one who was there to protect the people.
The origin of self-defense in Anglo-America is believed to stem from the pollination by the Normans, subsequent to the Norman Conquest of England in 1066, of the Anglo-Saxon conception of the sanctity of life with more nuanced Continental ideas. Previously, any killing, even in self-defense, was culpable. Once the accused was found liable, regardless of blameworthiness, the remedy was either monetary compensation to, or personal vengeance wrought by, the victim’s family. Over time, the personal injury nature of a homicide became a public crime against the king, a breach of the king’s peace. Private vengeance and reparations gave way to public punishment and forfeiture of the accused’s land and possessions to the crown. Read more: Justification: Self-Defense – History – Homicide, King, Retreat, and Accused – JRank Articles https://law.jrank.org/pages/1466/Justification-Self-Defense-History.html#ixzz7F4DOOOgj
It’s hard to find any information on the Origin of Stand your Ground. Google puts up front a bias to CRT and Anti-gun advocacy articles that, in my opinion, only want to rewrite history and culture – burn it all down. In the future, one has to be woke to be a professor or publish a book.
It’s hard to find any information on the Origin of Stand your Ground.
Here is your origin of “stand your ground” in the excusable homicide during the course of an affray. This is talking about a provoker who has begun to fight with an aggressor (a person who is in the process of committing a misdemeanor criminal offense called affray by engaging in unlawful combat with an aggressor who unlawfully attacked him with provocation).
“The party assaulted must therefore flee as far as he conveniently can, either by reason of some wall, ditch, or other impediment; or as far as the fierceness of the assault will permit him:41 for it may be so fierce as not to allow him to yield a step, without manifest danger of his life, or enormous bodily harm; and then in his defense he may kill his assailant instantly.”
As you can see no duty to retreat here when you are attacked with deadly force, even a provoker in an affray had the right to “stand his ground” and kill the aggressor when homicide was necessary to protect himself from gbh or death.
I hate to double post, but this didn’t post where I intended it too.
I clicked on your article. A lot of misinformation in it. That comes from people who haven’t studied the actual English law repeating popular myths that they have heard someone else repeat. You actually see a lot of judges do the same thing. If you want to know what the historic English law of self defense was you need to look it up in Blackstone’s Commentaries on the Laws of England. I would post a link for you, but I can’t remember how right now and my keyboard has gone crazy where I can hardly do anything. Just google them up at Blackstone’s Commentaries on the Laws of England LONANG INSTITUTE.
Most of the self defense law of England is covered by Book 4, Chapter 14 Homicide. The justified homicide in self defense is covered under “justified homicide.” The excusable homicide in self defense or se defendendo is covered under excusable homicide. The criminal homicide in self defense is covered under felonious homicide. Several other places in the Commentaries self defense is mentioned too, for example: Book 1, Chapter 1. BOTH the life and limbs of a man are of such high value, in the estimation of the law of England, that it pardons even homicide if committed se defendendo [in self-defense], or in order to preserve them. Non-deadly force in self defense is covered in the chapter on assault and maybe in other places I can’t recall right now.
And then there is Book 3, Chapter 1. AND, first, of that redress of private injuries, which is obtained by the mere act of the parties. This is of two sorts; first, that which arises from the act of the injured party only; and, secondly, that which arises from the joint act of all the parties together: both which I shall consider in their order.
OF the first sort, or that which arises from the sole act of the injured party, is,
I. THE defense of one’s self, or the mutual and reciprocal defense of such as stand in the relations of husband and wife, parent and child, master and servant. In these cases, if the party himself, or any of these his relations, be forcibly attacked in his person or property, it is lawful for him to repel force by force; and the breach of the peace, which happens, is chargeable upon him only who began the affray.4 For the law, in this case, respects the passions of the human mind; and (when external violence is offered to a man himself, or those to whom he bears a near connection) makes it lawful in him to do himself that immediate justice, to which he is prompted by nature, and which no prudential motives are strong enough to restrain. It considers that the future process of law is by no means an adequate remedy for injuries accompanied with force; since it is impossible to say, to what wanton lengths of rapine or cruelty outrages of this sort might be carried, unless it were permitted a man immediately to oppose one violence with another. Self-defense therefore as it is justly called the primary law of nature, so it is not, neither can it be in fact, taken away by the law of society. In the English law particularly it is held an excuse for breaches of the peace, nay even for homicide itself: but care must be taken that the resistance does not exceed the bounds of mere defense and prevention; for then the defender would himself become an aggressor.
i found the text you alluded to. The link is
https://lonang.com/library/reference/blackstone-commentaries-law-england/bla-414/
A search for duty to retreat found nothing. A search for stand your ground found nothing. By in large, the Blackstone commentaries were the modern law of self defense and date to the 1700 era. The rule of Kings (and Popes) as representative of God goes further back to the Magna Carta times of 1200. Blackstone was recognized for having written down what was before general ideas of justice that developed over the years from Jewish Law, Roman Law and Blackstone modern law. So perhaps my misinformation is more about dates than substance. Since Blackstone speaks about unavoidable homicide, but not of a duty to retreat, much less of stand your ground, since my sources are mistaken, maybe you could help us by providing the origen of these concepts.
I clicked on your article. A lot of misinformation in it. That comes from people who haven’t studied the actual English law repeating popular myths that they have heard someone else repeat. You actually see a lot of judges do the same thing. If you want to know what the historic English law of self defense was you need to look it up in Blackstone’s Commentaries on the Laws of England. I would post a link for you, but I can’t remember how right now and my keyboard has gone crazy where I can hardly do anything. Just google them up at Blackstone’s Commentaries on the Laws of England LONANG INSTITUTE.
Most of the self defense law of England is covered by Book 4, Chapter 14 Homicide. The justified homicide in self defense is covered under “justified homicide.” The excusable homicide in self defense or se defendendo is covered under excusable homicide. The criminal homicide in self defense is covered under felonious homicide. Several other places in the Commentaries self defense is mentioned too, for example: Book 1, Chapter 1. BOTH the life and limbs of a man are of such high value, in the estimation of the law of England, that it pardons even homicide if committed se defendendo [in self-defense], or in order to preserve them. Non-deadly force in self defense is covered in the chapter on assault and maybe in other places I can’t recall right now.
And then there is Book 3, Chapter 1. AND, first, of that redress of private injuries, which is obtained by the mere act of the parties. This is of two sorts; first, that which arises from the act of the injured party only; and, secondly, that which arises from the joint act of all the parties together: both which I shall consider in their order.
OF the first sort, or that which arises from the sole act of the injured party, is,
I. THE defense of one’s self, or the mutual and reciprocal defense of such as stand in the relations of husband and wife, parent and child, master and servant. In these cases, if the party himself, or any of these his relations, be forcibly attacked in his person or property, it is lawful for him to repel force by force; and the breach of the peace, which happens, is chargeable upon him only who began the affray.4 For the law, in this case, respects the passions of the human mind; and (when external violence is offered to a man himself, or those to whom he bears a near connection) makes it lawful in him to do himself that immediate justice, to which he is prompted by nature, and which no prudential motives are strong enough to restrain. It considers that the future process of law is by no means an adequate remedy for injuries accompanied with force; since it is impossible to say, to what wanton lengths of rapine or cruelty outrages of this sort might be carried, unless it were permitted a man immediately to oppose one violence with another. Self-defense therefore as it is justly called the primary law of nature, so it is not, neither can it be in fact, taken away by the law of society. In the English law particularly it is held an excuse for breaches of the peace, nay even for homicide itself: but care must be taken that the resistance does not exceed the bounds of mere defense and prevention; for then the defender would himself become an aggressor.
t
With regard to DNA evidence, in both this trial, and in the Rittenhouse trial:
What is the point of using it when it establishes facts not in dispute, or to try to question facts easily established by other means? In this case, the blood of the victim, and the owner of the gun, and in the case of the Rittenhouse trial, the ownership of Rittenhouse’s gun, and the fact that others have touched it can be established by stipple (for Rosenbaum) and by photographs (for Heuber)?
Why waste the jury’s time? Why waste the time of the DNA examiners? What is supposed to be established in these matters?