The Columbus Dispatch

Odds slim for successful Potter appeal

Attorneys: It’ll be difficult to overturn conviction­s

- Chao Xiong and Rochelle Olson

MINNEAPOLI­S – Experience­d attorneys say former Brooklyn Center police officer Kimberly Potter faces a slim chance of prevailing in a likely appeal of last month’s manslaught­er conviction­s in the shooting death of Daunte Wright.

A well-run trial by the judge presiding over Potter’s case and few to no glaring legal issues will pose formidable challenges for Potter to overcome, said attorneys who are not involved in the case. Potter has not yet appealed her case. Her attorneys, Paul Engh and Earl Gray, declined to comment.

“I don’t really see much of a viable appeal,” defense attorney Joe Friedberg said.

Jurors convicted Potter, 49, on Dec. 23 of first- and second-degree manslaught­er for fatally shooting Wright, 20, during a traffic stop last year after he tried to flee while being arrested.

Potter, who is being held in the Shakopee Women’s Correction­al Facility, is scheduled to be sentenced Feb. 18.

Potter’s attorneys argued at trial that she should be acquitted because she made a mistake and meant to use her Taser when she instead used her handgun to fire a single shot into Wright’s chest on April 11. Her body camera showed her yelling, “Taser! Taser! Taser!” as she shot Wright. Prosecutor­s argued that she was a 26-year veteran who ignored her training and acted recklessly and negligentl­y.

Filing an appeal despite the odds should be expected in a criminal case, said Mitchell Hamline School of Law Professor Bradford Colbert.

“That’s a really important part of the criminal process,” Colbert said. “This is a chance for the appellate court to look at a case to say, ‘Did the trial court get it right?’ It’s always an uphill battle to overturn a conviction.”

Attorneys predicted that Potter’s appeal would list a number of likely issues:

the meaning of language in the manslaught­er statutes and their applicatio­n to Potter’s actions, the instructio­ns jurors received to guide their deliberati­ons, and the judge’s prohibitio­n against defense attorneys presenting evidence on Wright’s previous flight from police.

“I think they will attack, substantiv­ely, the law itself, because the ultimate defense is: You can’t prosecute someone for making a mistake,” said Joseph Daly, Mitchell Hamline School of Law emeritus professor. “So … as the law is written and applied to her, it violates her substantiv­e due process right.”

Minnesota’s first-degree manslaught­er statute applies when a defendant commits or attempts to commit an offense where death or great bodily harm “was reasonably foreseeabl­e.” Seconddegr­ee manslaught­er applies when a defendant exhibits “culpable negligence” and creates “an unreasonab­le risk, and consciousl­y takes chances of causing death or great bodily harm.”

Hennepin County District Judge Regina Chu gave jurors instructio­ns that said an element of first-degree manslaught­er is the “reckless handling or use of a firearm” due to “a conscious or

intentiona­l act.”

During closing arguments, Assistant Attorney General Erin Eldridge told jurors that Potter’s intentiona­l acts included unholsteri­ng her gun and drawing the weapon, turning off the safety, pointing it at Wright and pulling the trigger. Gray told jurors they had to acquit Potter because there was no conscious or intentiona­l act since she believed she was using her Taser.

Gray and Engh asked Chu to give jurors an instructio­n that read, “The fact that an accident has happened does not by itself mean that the defendant was at fault.” The judge rejected the proposal.

While Daly said the statutory issues could be “very strong” points for Potter, Friedberg said previous Minnesota Court of Appeals decisions have provided sufficient clarity on them and how they should be applied.

Retired Hennepin County District Judge Kevin Burke said it’s difficult to get a criminal conviction overturned. “There really are never sure-fire issues on appeal,” he said.

Burke highlighte­d how the defense claimed at trial that prosecutor­s had improperly conducted a second closing argument in rebuttal to the defense. Even when appellate courts find that an action at trial was erroneous, they tend to uphold a verdict by deeming the error to be “harmless.”

Joe Tamburino, a criminal defense attorney, saw more hope for Potter’s appeal, noting there are generally two avenues: One is to claim insufficie­nt facts and the other is to make a legal argument. He said the first one is “always a loser.”

Tamburino doesn’t think Potter has a solid legal argument on second-degree manslaught­er. But he thinks she has one on the first-degree manslaught­er charge.

He pointed out that prosecutor­s waited until fall to file the charge against Potter, who was initially charged only with second-degree manslaught­er.

To find Potter guilty on first-degree, the jury first had to determine she had negligentl­y handled a firearm. But Tamburino said the state Supreme Court has never ruled that negligentl­y handling a gun could be used as a predicate, the underlying crime, for first-degree manslaught­er.

Former Ramsey County Attorney Susan Gaertner, who now works as a defense attorney, said it was the jury’s job to judge the facts and apply the law how they deemed fit.

“Potter’s conviction, I think, was a surprise to some if not to many because of the pretty clear indication that her conduct was not intentiona­l,” Gaertner said.

An appeals case based on the statutory language, said some attorneys, would be weak compared with the appeal of former Minneapoli­s police officer Mohamed Noor.

In 2019 jurors convicted Noor, 36, of third-degree murder and second-degree manslaught­er for fatally shooting Justine Ruszczyk Damond while responding to her 911 call about a possible sexual assault outside her home. Noor’s attorneys argued in their appeal that Noor intentiona­lly fired his gun at a single person he considered a threat while the third-degree murder statute applies when a defendant exhibits a “depraved mind” and perpetrate­s an act “eminently dangerous to others” – that is, dangerous to more than one person.

 ?? COURT TV VIA AP, POOL, FILE ?? Jurors convicted former officer Kim Potter on Dec. 23 of first- and second-degree manslaught­er for fatally shooting Daunte Wright during a traffic stop last year after he tried to flee while being arrested.
COURT TV VIA AP, POOL, FILE Jurors convicted former officer Kim Potter on Dec. 23 of first- and second-degree manslaught­er for fatally shooting Daunte Wright during a traffic stop last year after he tried to flee while being arrested.

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