First of all, I trust everyone is enjoying a safe and merry holiday season.
Second, many thanks to all of you who have offered best wishes and prayers for my wife, Emily, who just about a week ago underwent surgery for breast cancer, and is currently recovering from that procedure. The surgery went very well, the recovery is going as smoothly as we could possibly have hoped for, and the cancer itself was detected very early, so we continue to have every expectation of a positive outcome.
Finally, I’d like to share some quick observations on the conviction of Kim Potter on two counts of manslaughter over the shooting death of Duante 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 Duante 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.
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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 Duante 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, where 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.
Also, a final note: I expect we’ll be back up to our normal rate of productivity prior to mid-January, but content may continue to be somewhat intermittent until then. It all depends on the circumstances.
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
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I did not believe she could get a fair trial. I believe jurors convicted to avoid arson and death for themselves and family.
Best wishes to Emily for a quick and total recovery. Emily has always been a positive individual to communicate with. I did not realize that she was undergoing surgery and such.
It’s too bad there isn’t a requirement that jurors be debriefed after reaching a verdict as to how they arrived at their decision. We’re never really going to know what went wrong on this one. Bias, fear, misunderstanding, or just plain stupidity.
I am absolutely convinced it is impossible for any police officer in Minnesota to receive a fair trial. That would also extend to anyone who uses a gun in self-defense.
The jury in Minnesota was probably an issue. What kind of people live there?
Andrew, you said: “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.” I don’t see that as an issue in this case.
Minnesota statute section 609.02 subdivision 6. defines dangerous weapon as: “any firearm, whether loaded or unloaded, or any device designed as a weapon and capable of producing death or great bodily harm.” Potter was consciously aware of the fact that she had a “dangerous weapon” in her hand and she was consciously aware of the risk of great bodily harm or death to Wright if she shot him with that projectile weapon, but the risk of gbh or death was not “substantial” or “unjustified.”
The issue in this case is whether or not the risk of gbh or death to Wright was substantial or justified. In the encounter with Wright the risk of gbh or death to Wright was justified in the circumstances by the permission of the law, and it matters not whether the risk was “substantial” or what type of “dangerous weapon” was used, or what the state of mind of Potter was at the time she used the dangerous weapon. There are three categories of homicide: justified, excused, and felonious. A homicide that is justified by the command or permission of the law cannot be felony. In the encounter with Wright Minnesota law permitted a homicide to prevent the forcible felonies that Wright was attempting to commit from being accomplished.
They spent a lot of time at trial on irrelevant evidence concerning tasers. Police carry tasers as a non-lethal alternative to going to the gun. She did not draw the taser. She drew the gun. I would contend that had she drawn the taser and Wright dies as a result, this would be a completely different fact pattern with very different legal doctrines relevant to it. For me, the issue should boil down to just the following: The crime that was charged, the actual elements of that crime, and the actual evidence relevant to prove those specific elements beyond a reasonable doubt. I think we all here know that the prosecution clearly did not do this.
“Police carry tasers as a non-lethal alternative to going to the gun.”
Police carry tasers as a less-lethal alternative to going to the gun. There is a legal and factual difference between the terms non-lethal and less-lethal. All police officers are taught that tasers are weapons that are capable of causing great bodily harm or death. The risk of great bodily harm or death is not as substantial as the risk of great bodily harm or death from a firearm, but it is still a risk. Ther term “deadly weapon” is a term of art—the definition of that term of art for the purposes of use of force law is defined by statute in most states and it usually does not include a “taser” in the definition.
The term “deadly force” is a term of art—the definition of that term of art for the purposes of use of force law is defined by statute in most states and by definition it does not include the “normal” use of a taser because a taser properly used does not create a “substantial risk” of great bodily harm or death that a reasonable officer would be aware of, and because most officers don’t use a taser with the intent to cause great bodily harm or death.
Notwithstanding the legal definitions of deadly weapon and deadly force for the purposes of a states use of force laws, the fact remains that under the ordinary and customary definitions of the terms deadly weapon and deadly force, the taser is a deadly weapon and the use of a taser is deadly force.
You are right on point when you say: “They spent a lot of time at trial on irrelevant evidence concerning tasers.” and when you say: “the issue should boil down to just the following: The crime that was charged, the actual elements of that crime, and the actual evidence relevant to prove those specific elements beyond a reasonable doubt. I think we all here know that the prosecution clearly did not do this.”
An essential element of both counts is that the killing be “unlawful.” If the killing be lawful, meaning justified by the permission of the law or excused by the grace of the law on the grounds of misfortune (non-culpable accident), then the homicide cannot be felony of any degree—cannot be felony at all. This is an essential element of any felony homicide and it is an essential element that the prosecution has the burden of dis-proving beyond a reasonable doubt. The prosecution did not have sufficient evidence to give him probable cause to believe the homicide was not justified or accident, let alone prove beyond a reasonable doubt that it was neither. This was the reason for all the “table pounding” as Andrew calls it. “Look at me pound the table—don’t look at the lack of evidence to prove beyond a reasonable doubt that the homicide wasn’t justified or excused.” Unfortunately, it worked, the defense attorneys, the judge, and the jury all lost sight of the ball watching the prosecutor’s antics.
As the husband of a wife who had breast cancer and the attendant surgeries, I completely get what you’re going through. Praying for you both!
A juror have an interview to local news. https://www.kare11.com/article/news/local/kim-potter-trial-juror-speaks-out/89-7fd1ff32-1464-4333-8255-568c304dfdd6
Andrew, I wish you would address the issue of the mutually exclusive verdicts in the Potter case. The New York Times seems to think that Potter can be legally convicted of both offenses. I disagree and contend that the mutually exclusive verdicts are both legally and logically inconsistent and unconstitutional.
In support of that opinion consider the following:
The requirement that a criminal defendant be convicted of a crime by proof beyond a reasonable doubt comes from the due process clause of the Fifth and Fourteenth Amendments of the United States Constitution.
The Georgia Supreme Court answered an unusual, yet significant, question on December 11, 2017. Can a conviction that requires proof that a rental car was stolen outside of the state coexist with a conviction that requires proof that the same car was stolen in the state? Both a trial court and an appellate court said yes. The Georgia Supreme Court, applying the old law known as common sense, disagreed and reversed. The Supreme Court explained that verdicts are mutually exclusive “where it is legally and logically impossible to convict the accused of both counts.”
In Griffin v. State, No. S14A1485, 2015 WL 252009, at *1 (Ga. Jan. 20, 2015) the Georgia Supreme Court held: While guilty verdicts on involuntary manslaughter and felony murder are not mutually exclusive as a matter of law, Smith v. State, 267 Ga. 372(6), 477 S.E.2d 827 (1996), a mutually exclusive verdict may be rendered in a particular case where the offenses underlying the felony murder and involuntary manslaughter convictions “reflect that the jury, in order to find the defendant guilty [of both offenses], necessarily reached two positive findings of fact that cannot logically mutually exist.”
Colorado Supreme Court Case No. 17SC29 Certiorari to the Colorado Court of Appeals Court of Appeals Case No. 13CA2024 has this to say about it:
¶21 But why, exactly, is it that mutually exclusive guilty verdicts aren’t permitted? The answer lies in a defendant’s right to have each element of a crime proven beyond a reasonable doubt.
¶22 The prosecution’s responsibility to prove each element of a charged offense beyond a reasonable doubt is embedded within the Fifth and Fourteenth Amendments’ due process protections and the Sixth Amendment’s right to trial 11 by jury. See Sullivan v. Louisiana, 508 U.S. 275, 278 (1993) (“[T]he jury verdict required by the Sixth Amendment is a jury verdict of guilty beyond a reasonable doubt.”); In re Winship, 397 U.S. 358, 364 (1970) (“[T]he Due Process Clause protects the accused against conviction except upon proof beyond a reasonable doubt of every fact necessary to constitute the crime with which he is charged.”).
In the Potter case Potter has been convicted of both the common law offense of unlawful act involuntary manslaughter codified by the state of Minnesota under section 609.20(2) and the common law offense of lawful act involuntary manslaughter codified by the state of Minnesota under section 609.205(1) for the same act. The prosecution has not proven Potter guilty of either offense beyond a reasonable doubt because proof of either one of the offenses beyond a reasonable doubt disproves the other offense beyond a reasonable doubt.
Minnesota has not adopted the Model Penal Code’s degrees of culpability and I am not contending that the reason that the verdicts are mutually exclusive is because the offenses have different degrees of mens rea. As a matter of fact I believe the mens rea for both offenses is the same under the common law and under Minnesota law.
Potter’s constitutional right under the Fourth Amendment not to be arrested or prosecuted without probable cause was violated by the arrest and prosecution of Potter without probable cause to believe the homicide was not justified or excused, and Potter’s constitutional rights under the Fifth, Sixth, and Fourteenth Amendments not to be convicted of an offense with proof beyond a reasonable doubt were violated by the verdict and the court’s acceptance of the verdict. Chu screwed up big time.
So, violently busting loose from cops and trying to flee in a 3,500 lb. lethal weapon is cool? Why would any LEO want to stick their ass on the line for this shit? Our jury system does not work. Judges are afraid of Jr. High mobs. Laymen juries are afraid of Jr. High mobs and are ignorant of Black’s Law. Legislators pencil out laws not meant to be understandable by Jr. High mobs.
We should keep our regular 12-person jury system intact but add one extra knowledgeable non-voting jurist that knows how to find their ass using a mirror on a stick.
In the early 1600s, British subjects, whose rights were threatened at home, began sailing for America. The rights that they had been guaranteed in the Magna Carta, including trial by jury, were reasserted in the colonial charters. The right to trial by jury was included in the First Charter of Virginia (the first Colony in America) which was drafted in Great Britain in 1606—and that right was guaranteed in all subsequent colonial charters. Following the Declaration of Independence, each colony had to write a new state constitution. These constitutions were based on the principles and rights outlined in the Magna Carta and the British Bill of Rights, as well as interpretation of British common law by men such as Thomas Coke and William Blackstone.
Our current jury system would work just fine if the courts would properly instruct the jury on what the natural law, the common law of England, and statute law of the State is that might apply to the facts in the case, and on their power as the jury to determine what “facts” have been proven beyond a reasonable doubt in the case, and to determine what rule of “law” justice in the circumstances would make applicable to the facts thus proven. The Courts have gotten the big head in the past 150 years and quit doing that.