by Andrew Branca
I’d like to share some quick observations on the conviction of Kim Potter on two counts of manslaughter over the shooting death of Daunte 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 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.
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.
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 Daunte 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.
She was incompetent, sadly.
Honestly I can say I wouldn’t do any better. Being a cop is incredibly difficult and requires very certain kinds of heros to do it, male and females alike.
John Madden dead at 85
Harry Reed is Dead
Well… let’s try to survive somehow.
Dcary Hrry Reid is dead and Satan will have trouble trying to keep him from taking away his rulership in hell