Welcome to our coverage of the Kim Potter manslaughter trial over the April 11, 2021, shooting death of Duante Wright in a suburb of Minneapolis, when then-police officer Potter unintentionally used her Glock 17 pistol in place of her intended Taser.
Today was the eighth day of the trial proper, and the final day for testimony. That testimony was provided by Professor Laurence Miller, an expert on “slip & capture” errors, and by the defendant Kim Potter herself. There were no real surprises on the merits from either one of these witnesses.
The take-away from Professor Miller’s direct questioning by Attorney Paul Engh was his common-sense explanation of how understandable and explainable was Potter’s unintentional deployment of her Glock in place of her Taser. Cross-examination of Miller by ADA Erin Eldridge did nothing to impeach his testimony, and the State ultimately declined to have their own rebuttal expert testify contrary to Miller.
The take-away from Kim Potter’s testimony was really less in the direct questioning by Attorney Earl Gray than in the cross-examination by Erin Eldridge. The cross-examination came across as snarky and outright abusive, it made Potter appear remorseful and sympathetic, and it could only have created negative value for the State. A more capable prosecutor would have handled the cross-examination of Potter far differently.
After Potter’s testimony, the jury was dismissed for the day, and the parties worked with the judge to finalize the jury instructions. These were not gone over in detail on the record, but where adjustments were made on the record they appeared to largely favor the defense.
The bottom line for the ultimate verdict from my perspective is that the State has fallen far short of proving the recklessness required for either the manslaughter in the first degree or manslaughter in the second degree charges against Potter. Keep in mind that recklessness is not mere negligence—I expect all would agree that Potter’s unintentional use of the Glock instead of the Taser qualifies as negligence.
But negligence creates only civil liability. Criminal liability requires recklessness, and legally speaking recklessness is either the intentional disregard of a known risk of death or the violation of a legal duty resulting in death. The prosecution never demonstrated that Potter believed she had a deadly force gun in her hand as opposed to the non-deadly Taser, and she can’t have intentionally disregarded a risk she didn’t know existed. Similarly, the State never demonstrated that Potter violated an actual legal duty—the BCPD policies discussed in the trial are best understood as generalized guidelines, rather than absolute legal duties.
On the legal merits, then, this trial should end with Kim Potter acquitted on all charges.
That said, it’s my long-standing practice to not predict verdicts because juries are dangerous and unpredictable creatures. If the jury mistakenly applies the standard of mere negligence to these criminal charges—perhaps if the State convinces them that they should apply “reckless” in the colloquial sense rather than in the technical legal sense—a conviction is certainly possible, given that there seems little doubt that Potter was genuinely negligent.
Professor Laurence Miller: Direct Questioning
Direct questioning of Dr. Miller was conducted by Attorney Paul Eng. As usual, the questioning of this expert began with a review of his qualifications.
Dr. Miller has been a licensed psychologist for more than 30 years, with expertise in clinical psychology, forensic psychology, research psychology, and police psychology. He’s written a dozen books on these various topics, as well as many scholarly and general audience papers and articles. He was paid $30,000 for his consultation for the defense.
Miller’s testimony was really quite straightforward and based entirely on the common-sense notion that all of us over time learn various skills, and that often skills that start out being applied awkwardly ultimately are mastered to the point of automaticity. Examples would include such common tasks as tying one’s shoelaces, typing on a keyboard, driving a car, and so forth.
When some action has been refined to automaticity, Dr. Miller refers to this as a System 1 function, one that does not require conscious thought to carry out.
When one first attempts to acquire a new skill, however, it does require deliberate conscious thought—as when one is first learning to tie laces, drive a car, or type on a keyboard. Conduct that requires such conscious thought is referred to by Dr. Miller as a System 2 function.
In the normal course of a day we carry out the System 1 functions without much thought, reserving conscious consideration for System 2 functions—and in the normal context, there is little difficulty in correctly carrying out the System 2 functions.
Under stress, however, it can become difficult to properly carry out the more attention-requiring System 2 functions. Stress induces a state of hyper-arousal that leads to both hyper-focus on what appears to be of most vital concern and at the same time distractibility from what appears to be of less importance—a kind of “tunnel vision.”
Under those conditions, conduct that would normally have been executed under a conscious-thought System 2 function, with deliberation, might instead be executed under the more automatic System 1 function.
Most of the time when this happens the consequences are trivial. But sometimes the difference between the System 1 action and the System 2 action is sufficient to have dire real-world consequences.
Common examples of this include a pilot with many years flying on plane model A who is recently switched to plane model B. Although technically qualified to fly model B aircraft, when an emergency strikes the pilot reverts under pressure to the corrective measures that would work in his previous model A aircraft, but result in a crash when done in the model B craft.
Other examples can be found in the medical industry such as in surgical or emergency care, in the nuclear power industry, and of course in law enforcement in the context of a chaotic use-of-force event.
The phrase “slip & capture” refers to this paradigm, and is more technically referred to as “action error”—the actor would normally reach for the appropriate System 2 conduct, but under stress, the effort to grasp System 2 “slips,” and the actor ends up “capturing” the System 1 conduct that is no longer appropriate.
In the law enforcement context, this paradigm can lead to the kind of weapons confusion that occurred with Kim Potter. Having spent perhaps 95% of time training with her gun relative to 5% of her time training with her Taser (and having never previously fired either in actual need in her 26 years of policing), when faced with an apparent deadly force threat by Duante Wright to herself, Officer Luckey, and Sergeant Johnson, Potter’s brain “slipped” in its intent to access her Taser and “captured” instead the action of deploying her Glock.
Indeed, many of us routinely experience such “slip & capture” action errors even in the absence of stress. As Dr. Miller illustrated for the jury, many people will during the first few weeks of the new year continue to put the prior year on checks, despite being fully aware that they are in a new year.
Overall I found Dr. Miller’s testimony on this to be very commonsensical and relatable.
It is noteworthy, however, that Dr. Miller was allowed to testify as to the well-accepted concept in psychology of action errors and “slip & capture,” but he was not permitted to testify that Kim Potter had herself actually experienced this in her interaction with Duante Wright.
Professor Laurence Miller: Cross-Examination
The cross-examination of Dr. Miller by ADA Erin Eldridge yielded little for the State. The underlying psychological concepts he described on direct are so generally accepted in the scientific community, and so commonly experienced even by laypeople, that there simply wasn’t much to attack.
Eldridge did attempt to suggest that the use of the phrase “slip & capture” indicated “junk science”—but “slip & capture” was developed merely as a label to facilitate the teaching of the action error concept to law enforcement personnel not formally trained in psychology. The use of a less technical label in no way “junks” the underlying science.
Other efforts by Eldridge to impeach Dr. Miller were similarly ineffectual. For example, she suggested that the field of police psychology had only recently been recognized by the scientific community—but that’s true only if one believes that 13 years counts as recent.
Humorously, Eldridge cited a blog post written by Dr. Miller for a police-oriented website, in which he’d referred to both the terms “OBM” and “OBFU.” Eldridge asked, “OBM” stands for “one big mistake”? Miller agreed that it did. And “OBFU” stands for “one big f*** up”? Well, Miller answered, I’d rather you say that in court than me.
Eldridge then spent a great deal of time having Dr. Miller confirm that training was designed to help avoid such action errors as weapons confusion. That line of cross-examination was largely gutted when Dr. Miller pointed out that while more training was always nice, the very existence of action errors shows that they occur despite training. Mistakes can never be reduced to zero in any conduct involving human beings, we can only seek to get as close to zero as possible.
Professor Laurence Miller: Re-direct & Re-cross
On re-direct, Engh pressed on this point, having Miller testify that in medicine, where actors are highly trained, there are still millions of adverse events every year.
On re-cross, Eldridge then rather ridiculously asked if action error applied to the aviation industry as well, and when Miller confirmed that it did, she noted, well planes don’t fall out of the sky every day, now do they?
It was an end to her cross-examination that was likely received poorly by the jury.
Kimberly Potter: Direct Questioning
The direct questioning of Kimberly Potter was done by Attorney Earl Gray, who did a fine job. There wasn’t really much substantive testimony to get from Potter, considering there really aren’t many factual issues in dispute in this case given the prevalence of body camera and dash-camera video, and the prior testimony of Officer Luckey and Sergeant Johnson.
There was some substantive testimony from Potter that was important, however, particularly with respect to Sergeant Johnson. Potter testified that she had seen Johnson fight for control of the Buick’s shift lever with Duante Wright inside the car, and when she did so she’d seen an expression of fear on his face—an expression of fear she’d never previously seen on the face of the large officer in the many years she’d worked with him.
Gray naturally worked Potter through her many volunteer activities on the police force, including her domestic abuser efforts (DART), her casket carrying activities (LEMA), her crisis negotiation activities, as well as her field training officer (FTO) activities.
I would note in passing that these are all activities that involve little or no use-of-force interest or expertise. They are not SWAT.
Gray also elicited that in Potter’s 26 years as a police officer, not only did she never have a use-of-force complaint brought against her, she’d never had any complaint of any sort filed against her.
Further, the jury learned that Potter had never fired her gun in a citizen encounter (until, of course, the encounter with Duante Wright), and had never even fired her Taser in a citizen encounter.
It is also notable that contrary to widespread assumption (including by me), Potter’s 26 years with the Brooklyn Center Police Department were largely spent on the street in the Patrol division, and not as a “house mouse” officer working at a desk.
Potter also testified that she had never received any substantive training on the issue of weapons confusion, other than the issue being verbally raised as something to be aware of during in-class presentations.
Gray then had Potter step through the events of April 11, the pulling over of Duante Wright by Officer Luckey, and the struggle with and ultimate shooting of Duante Wright as he fought to resist arrest and engage in felony flight. I won’t recount all that here because it’s repetitive of what we’ve been hearing all trial—again, there aren’t really any facts in dispute in this case. It is noteworthy that Gray did this only through verbal questioning, and without the use of any of the videos of the event.
I will note that Potter began quietly crying on the witness stand during direct questioning when Gray got around to the actual unintentional shooting of Wright—it seems Potter wasn’t aware she’d actually shot him until he informed her that she had, “you shot me!”—and Potter testified to a very spotty memory of events following Wright’s flight.
Early in this direct questioning, Potter’s demeanor came across as extremely flat and unemotional, not a very good look for purposes of her testimony. Once she began to shake and tear up while discussing the actual encounter with Wright, however, she came across as much more human.
Kimberly Potter: Cross-Examination
The cross-examination of Potter by ADA Erin Eldridge was essentially a train-wreck for the prosecution from beginning to end, with Eldridge being extremely aggressive and hostile towards Potter throughout.
The smart way to cross-examine Potter would have been to start gently and sympathetically, asking increasingly directed by not unkind questions, and ultimately working up not to accusations of malice but merely of recklessness, that this ought not to have happened given Potter’s long experience and training
Mere recklessness is, after all, the basis for the criminal charges in this case. No one is claiming that Potter acted with malice towards Wright, yet that’s how Eldridge appeared to want to characterize Potter’s conduct.
Eldridge did bang the “experience/training” drum pretty hard, and there’s nothing inappropriate about that, at all. Her aggressive and hostile tone, however, largely stripped out the value the State could have realized from this cross-examination.
When Eldrige sought to cover the actual encounter with Wright itself she played the video from Potter’s body-worn camera, saying things like “you pointed your gun right at him and killed him, didn’t you” at the point where the shot was fired, with the result that Potter essentially collapsed into blubbery, incoherent tears on the stand.
At that point, Gray asked the court for a recess, and the court broke for lunch. Frankly, it would have been a smart play for Eldridge to suggest this herself, but she was clearly fully committed to a hostile cross-examination.
When the court returned from lunch, Eldridge aggressively doubled down on her hostile cross-examination of Potter, an approach I’ll suggest was less than optimal for the State. Particularly ridiculous were Eldridge’s suggestions that Potter was in the wrong for not chasing down Wright’s fleeing vehicle in order to provide first aid, and for not herself radioing information about the events when Sergeant Johnson was already doing so and, indeed, existing radio traffic was making additional communication difficult.
You didn’t do any of those things, Eldridge accused, because you were focused on yourself, on what you did, that you had just shot someone.
At that point Potter simply broke down on the witness stand, wailing, “I’m sorry, I’m sorry it happened.”
Eldridge accused, “You knew deadly force was unwarranted.” Potter replied, “I didn’t want to hurt anybody”—which is not, really, an answer to the question.
“That’s why you said you’re going to go to prison,” Eldridge further accused. This was objected to by Gray, and Judge Chu sustained the objection.
Kimberly Potter: Re-direct & Re-cross
There was a brief re-direct by Earl Gray. Here Gray had Potter re-affirm that she had never previously shot her gun at anyone or even used her Taser on anyone. He also had her affirm that it was her expectation that her superior on-site, Sergeant Johnson, would be doing the sharing of information to others about the shooting, rather than herself, the officer involved in the critical incident.
On a similarly brief re-direct by ADA Eldridge, the prosecutor spent her time largely trying to impeach the testimony of the other BCPD officers by attempting to have Potter describe those officers as people close to her, like family. This effort to negatively characterize the forming of close friendships with co-workers one had partnered with for many years came across as rather odd.
Finalizing of Jury Instructions
After Kim Potter’s testimony, the jury was dismissed for the day. The court then spent about a half-hour finalizing the jury instructions with the parties. All that was captured on the record and publicly broadcast were some modest edits to selected instructions, so we don’t’ know the instructions as a whole in detail. What edits were made, however, seemed largely to be favorable to the defense.
MONDAY: DAUNTE WRIGHT SHOOTING TRIAL DAY 9
The court proceedings will start up again on Monday, at 9 am CT. I expect the jury will be read the jury instructions, the closing arguments will be made, and the jury will be going into deliberations.
I’m afraid that I personally will not be following proceedings live on Monday, as my wife is having surgery and I’ll be at the hospital with her throughout most of the day. I’m not sure what alternative plan the Legal Insurrection family may have in mind for Monday but I expect there will be something in place, so I urge you to return back here on Monday morning for that.
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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