The huge miscarriage of justice in the Potter case
Here’s a good summation by Andrew Branca of the travesty of the Kim Potter conviction:
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…
This distinction…is extremely old and well-established law…
Branca adds that the prosecution was allowed to misstate the law in order to convict Potter, and the judge did not correct their statements and did not give the jury the proper law in her instructions prior to their deliberations.
A travesty, indeed. I keep writing about this verdict because it troubles me greatly in terms of the disregard of the law in order to get a political outcome. It has tremendous repercussions in terms of police reluctance to do their job. Who does this hurt the most at this point? Poor minority groups who are the main victims (and perpetrators) of violent crime.
Alan Dershowitz weighs in as well:
“Horrible tragedy, not a crime. It’s not a crime to make a mistake, and she was falsely convicted of anything.”
Judge Regina Chu “acted lawlessly” in denying bail for Potter, and Democrat state Attorney General Keith Ellison engaged in “a complete abuse of justice,” Dershowitz told co-hosts Carl Higbie and Amanda Brilhante.
“This judge acted lawlessly,” Dershowitz said. “The law in Minnesota is you are entitled to bail pending appeal, if your appeal isn’t frivolous – and it isn’t frivolous – and not likely to flee – she’s not going anywhere – and if you’re not a danger people,” Dershowitz said, noting the judge has failed to strictly apply those criteria to a repentant 26-year police veteran.
“She engaged in completely lawless behavior, and I think if Potter’s lawyers appealed the denial of bail immediately to the appellate courts, she may very well be released, pending appeal.”
I agree with his analysis of the law, but I disagree with his prediction about Potter’s likelihood of release on bail if the denial is appealed. My disagreement isn’t based on law; it’s based on politics.
The implied interpretation of the law by this jury was: when you put on the badge, and strap on the holster—that is the moment you know your actions can bring unjustifiable harm. When Potter put on her gear that morning, she knew it was possible she might mistakenly pull out her gun instead of her taser. Heck, when she decided to become a cop 26 years ago she knew that. Her chance to avoid jail was then, not after the mistake took place.
Our AG wants every potential decision of persons to choose the vocation of law enforcement to be subjected to this logic. Defund the police? What’s a police?
I listened a bit to that Barnes and Frei video. I knew from other media about the first condition of the law regarding unjustifiable risk. It was barely contested that she would have been justified to have pulled the gun and fire if that was what she intended to do. It was only because she intended to use the taser that firing the gun became unjustified.
“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.” Andrew Branca
I respectfully disagree that by any stretch of the law could Officer Potter be convicted of any crime whatsoever.
“Branca adds that the prosecution was allowed to misstate the law in order to convict Potter, and the judge did not correct their statements and did not give the jury the proper law in her instructions prior to their deliberations.” neo
“This judge acted lawlessly,” Dershowitz said.
‘Judge’ Chu’s actions effectively enabled the jury to find Potter guilty of the charges. Justice requires proportionate consequence. Destroy an innocent person’s life, receive the exact same consequence. Chu should receive the same sentence to which she has condemned Potter.
The same principle applies to the prosecutor and State AG Ellison.
That should apply even if a higher court invalidates this trial.
Glad to see that many legal eagles, much more knowledgeable about the law, agree with me. This was a miscarriage of justice.
As Neo opines a white LEO can’t get a fair trial in Minneapolis. The judge and the jury were influenced by the mob outside the courtroom. A not guilty verdict was going to bring more violence and arson. Intimidation of judges and juries is now SOP for these types of cases. If the AG and governor of Minnesota had stepped in and made clear taht such tactics would not be tolerated, it could have been different. AG Ellison and Governor Walz are responsible for the mob justice they enabled.
It’s possible to not be convicted of shooting someone resisting arrest and doing some kind of felony-fleeing such as in a car and thus endangering others. So I gather is the MN law.
I think the intervention of the Tazer has led enough people to think it was a non-lethal-force situation recklessly made lethal illegally.
As some have said, if she’d drawn her pistol and identified the threat with “I’ll shoot you!”, and then done so, this might have gone differently.
And I expect the jury was thinking it was supposed to be a non-lethal-force environment.
Sound appellate arguments and consistent with my deep legal thoughts. But good luck with winning that appeal in Minnesota!
Will the last police officer leaving Minnesota turn out the lights ?
What goes around, come around and Edina, a leftist suburb, is finding out how that works.
The suspects are 16-year-old Kanye Hardiman, 17-year-old Cayden Whitmore and 17-year-old Vance Chatman — all of whom are from Minneapolis and face first-degree carjacking-related charges.
Edina’s public schools enthusiastically teach the doctrines of Critical Race Theory, but it is one thing to philosophize about white privilege and another to be carjacked at your local grocery store.
It could not happen to a more appropriate place.
Without sitting through the trial I do not feel competent to judge any particular case. However, it is becoming abundantly clear that law enforcement officers who must deal with one segment of the population face a stacked deck for reasons that do not need enumerating for this audience.
On the other hand, certain segments of law enforcement–often at the Federal level– can trample some people with impunity. I am thinking of the 1/6/21 participants, who were incarcerated for extended periods on flimsy charges, or no charges at all.
There is a trend, and it does not lead to a happy place.
This is a travesty and a tragedy for all the reasons given. I want to add my sense that it is terrifying because of the wider message it sends.
Every lawsuit –civil or criminal– is a deadly serious piece of business for those directly involved: somebody may win, but net of legal fees and lost peace of mind or reputation, very few do. And always, always, somebody loses. Pay the damages, go to jail, whatever.
But every lawsuit is also larger than itself. It is a little acting-out of the Play of Justice for every one of us both as precedent and as a direct lesson and warning if we choose to watch.
And watching the Potter prosecution and conviction, what I see is utterly depressing. Each of us can imagine ourselves in Kim Potter’s situation –as Daunte Wright struggled to escape, and then again as she struggled against the prosecution. Each of us can look at how she was treated, and imagine ourselves in a similar plight.
And, people, I have to tell you, I don’t like our odds. This feels just so wrong.
Since I’m a lawyer, I actually know a number of judges. Two of my female classmates were state district court judges. Judges are human too. If I were an appellate judge in MN, I’d be scared to death to reverse both the Potter and Chauvin cases. I’m convinced fear was a good part of the reason why none of Trump’s election cases went anywhere. Fear and intimidation works.
Dear Cornhead, since I’m a retired lawyer with forty-two years of litigation experience, I also know, and have known a fair number of judges. All I can say in response to your comment is that, if a judge is too timid and pusillanimous to withstand outside pressure and apply the law as it exists, that judge deserves all the scorn that it is possible to heap upon him. (Or in your case, relative to the “two… female classmates” of your acquaintance) her. I am disappointed to interpret your comment as not at all critical of such actions by judges. Is this our new standard? That since it is “understandable” that a judge might act unjudicially out of cowardice, it’s acceptable? Is that now the judicial climate in which you operate, apparently without cavil, viz., that judges can do what the mob wants them to do without disapproval? That a solemn oath to uphold the law and apply it without bias against or in favor of anyone means nothing if fear of the mob can outweigh and overbear it? If so, a pox on your legal house. If
I failed to detect some part of sarcasm or a veiled bit of condemnation of such a practice, please forgive me. I take such things rather seriously. Perhaps too seriously in this day and age.
Dear Steve and Cornhead, I’m not a lawyer, but I think you both are likely right. I know Judges are human and will make mistakes, and I’m sure they can be intimidated or just want to fit into certain social circles. I also think such behavior from a Judge that moves them away from their oath and civic duty is ultimately bad for justice.
In this Potter case, if this Judge normally denies bail after guilty convictions regardless of appeal; then I agree with the statement I heard from the Judge. There is no reason at this point to treat Potter different than anyone else. The jury said she was guilty and her apprehension with denial of bail would be consistent with this Judge’s opinion of justice. However, if this Judge behavior was different (for whatever reason), then a pox on their legal house.
A related issue to Steve and Cornhead are recent attempts by media politicos to convince medical personal to treat people by vaccination status rather then follow traditional triage methods. You don’t want medical people making moral judgements prior to determining medical care. It has happened in the past and the results are repugnant.
I am a stalwart defender of Law Enforcement and prone to defend their entangled cases before I even know all the facts. Dare I express a dissenting view? We hold LE in our minds to the highest standards – much like we do educators. But have those views not become tarnished over time with good reason? Does anyone else remember police chiefs taking a knee to express solidarity with certain fashionable political viewpoints? Anybody else remember police in an array of jurisdictions being told to ‘stand down’ by mayors as rioters burned and looted their way across town? Anybody else remember a police chief coordinating opposing sides of a high-emotion protest in a way that drove the groups together and guaranteed conflict? Anybody else ever read about Civil Forfeiture?
Potter’s case is tragic in its inherent unfairness and in its institutionalized abuse of The Law and its tenets – ain’t the first time. Potter is really a victim of her professional culture. Police culture has too often made these professionals into pension hogs that serve The Powers that Be regardless of their oaths and regardless of their duty to uphold the law and keep the peace. Who punishes the Punishers?
Steve:
My two female law classmates who were judges were tough. One sentenced to death some bank robbers and murderers. Affirmed on appeal.
My point is that the Left is so out of control today with physical intimidation that on certain cases I can see a judge caving or rationalizing a decision. I really think that conservatives SCOTUS Justices (and their families) will be under threat if the abortion cases don’t go the way the Left wants. If I was ACB, I don’t know how I would rule as she as a young family.
This is all part of the lawlessness that the Left practices these days. The Floyd riots certainly intimidated many judges and SCOTUS.
Heck, there was a mob outside the courthouse when the Chauvin verdict was announced. That jury would have been lynched if they found him not guilty. That’s why I thought that case should have been tried in Duluth and in the dead of winter.
We’ve reached a new low. We see that with open talk by the Left of packing SCOTUS. Decide cases our way. Or else!
“This business will get out of control… it will get out of control and we’ll be lucky to live through it!”
This travesty is brought to you by Democrats, who have made creating racial strife in the US their core political strategy. May they rot in hell.
What a surprise; another shitty self-serving robed bureaucrat doing the politically expeditious thing at the expense of actually doing her job. If the civil excessive force law wasn’t so utterly FUBAR there would be a way to release pressure when cops make mistakes, and they do. But the unions have that locked up tight; judges get elected by endorsement from law enforcement and are often prosecutors themselves. Plus, people still think this is a partisan issue with conservatives on the LE side and libs for “the people” when it’s in all our best interest to keep law enforcement honest and accountable while acknowledging the realities and difficulty of the job. Plus, the USSC made some law (QI) which they apparently don’t care to administer consistently. If you’re going to have “judge-made law” you damn well better be prepared to make sure it’s fairly applied and not be waiting around for the “perfect case.” Everyone’s pointing fingers at someone else to fix it and busy assigning blame (and profiting from crime) while the vestiges of law enforcement credibility get shredded along with any hope that regular people will be protected by the people they pay to do so.
I was told to obey the police. What changed?
One of jurors has spoken to local news station and seemed to acknowledge that the jury fundamentally misapplied the legal standard. https://www.kare11.com/article/news/local/kim-potter-trial-juror-speaks-out/89-7fd1ff32-1464-4333-8255-568c304dfdd6
Here’s a good recap of what’s emerged and the significance of that news by Nate & friends – https://www.youtube.com/watch?v=QJTYuIpKRZo&t=566s