The great American baseball player Yogi Berra once said, “it’s tough to make predictions, especially about the future.” Even experienced criminal defense lawyers come to different conclusions when analyzing the chance a particular case has to succeed at trial. There are many factors that simply cannot be predicted before you try a case. Until a jury is picked, we don’t know the makeup of its members. We won’t know how evidence will be presented or how credible witnesses or evidence will be. Plainly stated, you simply you don’t know until you know.
With all of that said, if one were to try to make a prediction about the upcoming Kimberly Potter manslaughter trial, there are things we know in advance that can help us make a prediction. We can look at the elements of the crime, the evidence that is available to the public, and the experience of the lawyers involved to calculate the likely outcome. After looking at these factors, it seems abundantly clear that the government has an uphill climb for the most serious charge, first-degree manslaughter.
The Elements of Manslaughter
Ms. Potter is charged with two counts of manslaughter. The first and most serious count is manslaughter in the first degree. In order for someone to be convicted of first-degree manslaughter, the state must prove the following: 1) Mr. Wright died, 2) Ms. Potter caused the death, 3) Mr. Wright’s death was by the reckless handling of a firearm1, and 4) that the act was committed with such force or violence that Mr. Wright’s death was reasonably foreseeable. Here, there seems to be little doubt that the state will be able to prove the first and fourth elements, however, the second and third elements are tricky. As to the second element, there is no doubt that Potter shot and killed Wright. However, Potter’s attorneys are likely to argue that Mr. Wright’s decision to drive off was what caused his death. This will be a nuanced argument that only skilled attorneys can make. More on that later.
For the third element of manslaughter, the state will need to prove that Potter recklessly handled a firearm. The court will instruct the jury on what the legal definition of “recklessly” is, but the heart of the issue is whether Potter consciously disregarded the risk of harm with her actions. To act with conscious disregard means to purposely act, knowing the risk of harm, and not caring whether the harm comes to fruition. In this case it is clear from the body camera video that has been widely distributed in the media that Potter yelled, “taser, taser, taser” before shooting Mr. Wright. Potter’s attorneys will argue that this statement shows that she didn’t intend to shoot with her pistol, but instead thought it was her taser. Potter’s defense team will ultimately argue that if she didn’t know it was a pistol and not a taser, she could not have consciously disregarded the rights of Mr. Wright. On the other hand, the state will argue that Potter’s training, experience, and history should have made her aware that she was firing a pistol, but this will be difficult if the jury finds Potter credible.
Another Possible Defense
In addition to arguing about the elements of the crime, Potter’s attorneys may argue that her use of force was legally justified. Under Minnesota law, a police officer may be authorized to use deadly force to protect a peace officer or another from death or great bodily harm. Potter’s attorneys will argue that Wright’s action of driving away put the officers life in danger, as they could have been run over by his vehicle as he pulled away.
A high-profile case brings out the best on each side. Usually, the local County Attorney’s Office prosecutes felonies. However, because Ms. Potter was a former police officer and because the Hennepin County Attorney’s Office works so closely with police departments in the county, this case was referred to Attorney General Keith Ellison’s Office to prosecute. The Attorney General’s Office is the same office that successfully prosecuted Derek Chauvin earlier this year. They are skilled and experienced prosecutors. Ms. Potter also has retained attorneys that are considered to be some of the best in the country. Her attorneys have handled high profile cases and understand how to skillfully argue technical aspects of the law. It is important to remember that the state, in this case the Attorney General’s office, has the burden of proving Ms. Potter guilty beyond a reasonable doubt. There is little doubt that Potter’s defense attorneys will make that difficult at every turn.
Because of the issues discussed above, the State will likely have a difficult time convicting Ms. Potter of first-degree manslaughter. It is important to remember though that first-degree manslaughter is only the first count. Potter faces another count of second-degree manslaughter with different elements. Stay tuned to the next post to see our analysis on second-degree manslaughter.
1 Minn. Stat. § 609.20, subd. 2, requires that the offense occur while “committing or attempting to commit a misdemeanor or gross misdemeanor offense.” Here the state is alleging that Porter recklessly handled a firearm, a misdemeanor offense in violation of Minn. Stat. § 609.66.