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 fifth day of the Potter trial and was most notable for being one of the single most boring days of court proceedings of my 30-year career. The State managed to move completely through only a single witness and barely finished direct examination on their second witness of the day before Judge Chu had blessed mercy on the jury and observers and recessed the court for the day.
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State Motion to Impeach Their Own Police Witnesses, Retroactively
Indeed, the only portion of the day of even modest import was the court hearing a pair of motions from the State.
In the State’s first motion, prosecutors sought to be permitted to impeach police witnesses—their own witnesses!—on the ground that some of them belonged to the police union in which Kim Potter had briefly served as president some years prior.
Remarkably, the State even sought to impeach police testimony that had already been given last week, particularly the testimony of Sergeant Johnson, who had fought to arrest Duante Wright alongside Officers Luckey and Potter on April 11, 2021.
Judge Chu denied this motion, on the grounds that Potter’s leadership on the union was sufficiently transient and sufficiently in the past that it was not relevant to show bias among police witnesses.
In the State’s second motion, they sought to object to “lay witnesses” providing testimony more appropriate to that of an expert witness. They were particularly upset with the testimony of Sergeant Johnson the prior week because he essentially expressed the conclusion that the circumstances of the struggle with Wright were sufficient to justify Potter’s use of deadly force, much less a mere Taser.
In particular, the State asked the court to order the jury to disregard Sergeant Johnson’s testimony entirely, and to prohibit any other officer witnesses from providing similarly conclusory testimony.
The defense responded that they were merely doing normal cross-examination of the State’s witnesses, and if the State had inadequately prepared their witnesses, that was on the State. The defense also noted that the State made no objection to any of this at the time, but rather had apparently decided over the weekend that they didn’t like the way their own witnesses had testified the week prior.
Judge Chu also denied this second motion, declining to either instruct the jury to retroactively disregard Sergeant Johnson’s testimony or to prohibit other police witnesses from providing testimony with a basis in their training and experience as police officers.
Commander Garrett Flesland: Direct Examination
The first witness of the day was Commander Garrett Flesland, who is currently the BCPD Commander for both training and patrol (the previous Commander of Patrol had been made acting Chief when Chief Gannon left the department the same day as Potter, two days after the shooting death of Duante Wright).
Commander Flesland’s testimony would prove powerfully favorable to Potter, although not until his cross-examination by Attorney Earl Gray, which we’ll come to in a moment.
The direct questioning of Flesland was conducted by ADA Matthew Frank, and it was a snoozefest of about two hours duration, not counting the morning break mid-way through in which there was a lengthy discussion among the parties and Judge Chu about Blakely evidence being provided in great volume during the trial.
Frank’s direct examination of Flesland was largely a long and slow plodding through much of the BCPD’s 700-page policy manual—to the point that once Judge Chu paused proceedings to ask Frank if he intended to go through the entire manual line by line.
The pointlessness of all this was the utter lack of any evidence that Potter had violated any of the policies discussed.
Blakely Factors Discussion
Indeed, the testimony appeared mostly suited to matters of Blakely factors rather than matters of guilt, which led to the mid-morning break discussion already mentioned.
During the discussion among the parties and Judge Chu, while the jury was out of the courtroom, it was revealed that there was a disagreement as to whether Potter had waived her right to a bifurcated hearing on Blakely factors. These are factors that allow for an enhanced prison sentence if the underlying crime was committed by a police officer in uniform, or endangered a large number of people, etc. (Both of those specific Blakely factors are arguably at play in this case.)
A defendant can either have their guilt and Blakely factors decided in a single, unitary proceeding, or can have guilt and Blakely factors decided in two bifurcated proceedings—also, the defendant can choose to argue Blakely factors either to a jury or directly to the court (as in a bench trial).
The State argued that they believed Potter had waived her right to a bifurcated proceeding and that therefore it was the State’s position that the Blakely evidence was being properly offered in this single, unitary proceeding.
The defense countered that they’d made no such waiver—and Judge Chu also noted that she herself had no recollection of any such waiver, despite the State’s rather frantic protestations to the contrary. Certainly, there was no such waiver in the record.
This discussion ultimately concluded with Judge Chu having the defense create an explicit record that Potter wished a bifurcated proceeding, with the Blakely factors to be argued directly to the court in the event of a conviction on the underlying criminal charges.
Nevertheless, Judge Chu also concluded that she found no prejudice to the defense from the arguably Blakely factor evidence already admitted, which focused largely on the purported risk to the general public that Potter created when she Tasered Wright as he was behind the wheel of his Buick. Judge Chu reasoned that such evidence could both serve Blakely purposes and also be grounds for finding recklessness, and she would allow it in this guilt stage of the proceedings for that second purpose.
Commander Garrett Flesland: Direct Examination (continued)
After the morning break, Frank focused his ongoing direct of Flesland on the BCPD’s Taser policies, including how a Taser was to be worn on the duty belt. This was extremely unnecessarily slow and plodding, particularly given that Potter’s method of carrying her Taser was entirely consistent with BCPD policy.
Commander Garrett Flesland: Cross-Examination
As has become the pattern of this trial, the defense cross-examination of this State’s witness was both much quicker than that of the State’s direct—less than 30 minutes for cross, in contrast to about two hours for direct—but also far more productive for the defense than direct had been for the State. The cross-examination was done by Attorney Earl Gray.
Had Potter ever missed any training sessions? Not that Flesland knew of.
Did she take her training seriously? Yes.
Can training ever fully replicate real-world conditions? No.
Was Potter a trained hostage negotiator? Yes. Did she volunteer for DART, the domestic abuse response team? Yes. Had she been a casket carrier for LEMA, the law enforcement memorial association? Yes. Had she been voted union president by her fellow officers? Yes.
Had Potter ever violated any policy of BCPD? Yes—24 or so years prior she had two separate vehicle accidents.
Would it be right for an officer to stop a person from fleeing, once they were stopped and outside their vehicle, without a license, without identification, with a woman in the car who might be the subject of a restraining order against that person? Yes.
Was Officer Luckey reprimanded in any way for his conduct with respect to Wright on April 11, 2021? No. What about Sergeant Johnson? No.
Can it be reasonable to use deadly force if a fellow officer is partly inside a vehicle that’s trying to take off, where the officer would be dragged down the road? Yes.
Are traffic stops very dangerous? Yes. Even more so if you learn the person stopped has an arrest warrant for a gun possession offense? Commander Flesland answered that he would be extremely concerned if he was arresting someone with a weapons violation warrant.
Can you use force to effect an arrest on a warrant, and use force to stop that person from fleeing? Yes. And if he keeps fighting after warning him he’d be Tased, and a fellow officer was laying over a passenger fighting to prevent the flight of the suspect in his vehicle, would it be right to use deadly force to save that officer? Yes.
And then the kill shot:
Gray asked Commander Flesland how he would describe Potter as a police officer, based on the 20 years he had worked with her? The response: She’s a good cop, a good person, and I had no concerns about going on calls with her.
As I live-commented in real-time: BOOM.
All of that in less than 30 minutes of cross-examination.
Commander Garrett Flesland: Re-direct
ADA Frank asked the court for 5 minutes to do a brief re-direct of Flesland, which re-direct took more like 10 minutes (albeit, including a brief sidebar). The direct came across as largely flailing and ineffective.
Have you seen all the evidence from this event? No. You were answering Gray’s hypotheticals based on his proposed facts? Yes. Training tries to be as realistic as possible? Yes. And finally: You expect officers to make good decisions? Yes.
That last question, however, would turn out to have merely opened the door for Gray to deliver yet another kill shot to the State’s direct testimony.
Commander Garrett Flesland: Re-cross
In a two-sentence re-cross-examination of Flesland, Gray simply asked the Commander:
Did you say you expect good officers to make good decisions? Yes.
And you describe Kim Potter as a good officer? Yes.
Here are the videos of Flesland’s testimony:
Sergeant Mike Peterson BCPD Use-of-Force Trainer
The next State’s witness was Sergeant Mike Peterson, the BCPD’s Use-of-Force Trainer, in effect the State’s use-of-force expert witness. ADA Matthew Frank began his direct examination of Peterson right after the lunch break and would wrap up direct only at about 4:20 pm local time.
Worse, the questioning was again plodding and disjointed, and without apparent purpose given the testimony produced.
Most of this testimony was on the training Potter had received on the use of various models of Tasers she had been assigned over the years. She was apparently compliant with all training sessions.
Perhaps the most notable part of this testimony was that the “policy requirements” of Taser usage were almost entirely conditional and contingent on the totality of the circumstances, such that there was nothing about Potter’s conduct that could be said to clearly violate any of these policies.
The State had previously evinced testimony that Potter had failed to “spark test” her Taser at the start of each duty shift, doing so on only 6 of the 10 duty shifts that preceded her April 11 shooting of Wright.
The actual policy on “spark testing,” however, merely suggests the test be performed with that frequency, it does not mandate such frequent testing.
Similarly, the State had previously suggested that BCPD had a policy against using a Taser on someone operating a vehicle, on the grounds that doing so can lead to the vehicle becoming an uncontrolled missile that endangers innocent bystanders.
Of course, the defense argues that Wright’s vehicle was not in motion when Potter sought to use her Taser on him (mistakenly using her Glock, instead), but the State clearly wishes to characterize this decision as precisely creating such a danger to bystanders and thus qualifying as recklessness needed for manslaughter.
The actual policy, however, does not absolutely prohibit the use of a Taser on a suspect operating a motor vehicle, and in fact, permits such use where other means to control the suspect have proven ineffective—precisely as had happened with Duante Wright in this case.
Similarly, the State had made much of the notion that the Taser was properly targeted at the back of a suspect, or below the waist if at the front of the suspect. The actual policy, however, merely characterizes these as preferred target areas that should be prioritized if circumstances allow.
As this interminable questioning of Peterson continued it became increasingly clear that Peterson was hostile to the State and favorably disposed to Potter.
The court day ended with Frank’s conclusion of his direct examination of Peterson, but I expect cross-examination of the Sergeant to be extremely productive for the defense when the court comes back into session tomorrow morning.
(Note: There were some generalized internet breakdowns during Peterson’s testimony, so the following videos are a bit broken up, but I’m sharing what I have.)
WEDNESDAY: DAUNTE WRIGHT SHOOTING TRIAL DAY 6 LIVE
Be sure to join us at Legal Insurrection tomorrow morning for our ongoing LIVE coverage—including real-time commenting and streaming of the trial proceedings, starting at 9 am CT, and then again at day’s end for our analysis of the day’s events.
You carry a gun so you’re hard to kill.
Know the law so you’re hard to convict.
Attorney Andrew F. Branca
Law of Self Defense LLC
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