A Blatant Miscarriage of Justice – Law of Self Defense

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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