The trial of former Brooklyn Center police officer Kimberly Potter, scheduled to begin Tuesday, could differ vastly from the trials of other officers who have killed civilians on the job.
Potter, 49, is charged in Hennepin County District Court with first- and second-degree manslaughter for fatally shooting Daunte Wright during an April 11 traffic stop, setting off several nights of protests. Potter's body camera footage suggests Potter mistook her gun for a Taser when she fired a single shot at Wright. Jury selection is scheduled to begin Tuesday morning, with opening statements set for Dec. 8 and the trial projected to wrap up the last week of December.
Wright's shooting was captured on video, but some local attorneys not involved in the case said Potter's defense could benefit from the footage, unlike in the case against former Minneapolis police officer Derek Chauvin. Bystander video showed Chauvin kneeling on George Floyd's neck for more than nine minutes last year as Floyd and several civilians pleaded with Chauvin for mercy. Jurors convicted Chauvin this past April of murdering Floyd.
"Compared to Chauvin's case, the case against Potter is going to be more difficult for the prosecution to prove," said Ted Sampsell-Jones, Mitchell Hamline School of Law professor. "The difference boils down to the videotapes. In Chauvin's case, the video recordings were powerful evidence of guilt. In Potter's case, the video recordings are equivocal and may demonstrate innocence."
Police body camera footage captured an officer trying to arrest Wright, 20, outside of his car. He had been stopped for expired tabs, and police discovered he had a warrant for a gross misdemeanor weapons charge. Wright jumped back into the car, prompting Potter to draw her handgun and fire a single shot at him while shouting, "Taser! Taser! Taser!"
"The good thing towards the defense is the video shows the immediate aftermath and what her thoughts were immediately after the shooting," said defense attorney A.L. Brown. "The bad thing is it shows the shooting without just cause, in my mind."
According to court filings, Potter said, "Oh my God," several times after the shooting and she said that she grabbed the wrong gun.
"Overall ... this case is going to be more difficult, certainly, than Chauvin," said former Ramsey County Attorney Susan Gaertner, who now works as a defense attorney. "It has a there-but-for-the-grace-of-God-go-I feel to it, where other officer-involved shootings have not. I think many people, including police officers, can see themselves making a mistake with enormous consequences."
Potter's attorneys, Earl Gray and Paul Engh, have said their client made an "innocent mistake." They plan to call psychologist Laurence Miller to testify about "slip and capture errors," where a dominant behavior overrides a less dominant one. Gray and Engh argued in court filings that Potter has received about 520 hours of training to use her work-issued handgun, which she hadn't fired on the job until she killed Wright, and about 50 hours of training to use her Taser since it came into use about 10 years earlier.
"[Miller] is being called to explain a phenomenon that happens in police work," Potter's defense wrote. "Whether slip and capture may have caused Officer Potter's mistake he can't say; that question is for the jury to decide."
The varying hours of training shouldn't excuse deadly force, Brown said.
"It doesn't sit well with me," Brown said of the defense's argument. "You can't hold onto the mantle of professionalism with one hand and then make what is an amateur mistake on the other hand and call it good.
"Tasers have also killed people. The application of force requires absolute professionalism because the consequence is death. You can't make another Daunte."
The Minnesota Attorney General's Office, which is prosecuting Potter with assistance from the Hennepin County Attorney's Office, noted in the criminal complaint against Potter that before she killed Wright she completed a Taser training course on Nov. 5, 2020, and March 2.
"On Defendant's certificate of completion, Defendant provided her signature, acknowledging that she had read and understood the information and warnings provided by the manufacturer ...," the complaint said. "One of those warnings states: 'Confusing a handgun with a CEW [Taser] could result in death or serious injury. Learn the differences in the physical feel and holstering characteristics between your CEW and your handgun to help avoid confusion.'"
Attorneys said elements of both charges against Potter could prove tricky for the prosecution.
Minnesota's first-degree manslaughter statute says a defendant is guilty if they cause a death while "committing or attempting to commit a misdemeanor or gross misdemeanor offense." The prosecution will argue that Potter was assaulting Wright when she killed him, said Joseph Daly, Mitchell Hamline School of Law emeritus professor.
"Was she in fact committing an assault on this person while she was trying to gain control of this person who was trying to get away?" he asked. "She's trying to exercise her duty as a police officer to get this guy under control, so I just don't see how they can get a first-degree manslaughter [conviction]."
The state's second-degree manslaughter statute says a defendant is guilty when their "culpable negligence" creates "an unreasonable risk, and consciously takes chances of causing death or great bodily harm to another."
"It will be hard to prove that she consciously took a chance of causing death or great bodily harm if she believed she had a Taser," Sampsell-Jones said. "The law is muddy in some of the particulars, and a lot will depend on the specific jury instructions that the judge gives on both charges. But overall, it's not an easy case, certainly not a slam dunk."
Defining "culpable negligence" for jurors will be a challenge for both sides.
"The jury in any case where second-degree culpable negligent manslaughter is the charge has to determine when a mistake, when negligent behavior, crosses the line to criminal behavior," Gaertner said, "and I don't think there's any hard and fast definition or way to characterize where that line is and when it's crossed."
While jurors are expected to leave their biases outside of the courtroom and decide the case on the evidence alone, several attorneys said Floyd's killing last year and other high-profile cases of police killing Black civilians will inevitably impact Potter's trial.
Potter likely would not have been charged 10 years ago, said Gaertner and Sampsell-Jones, who commented on the broader issue and not whether charges should have been filed.
"Absolutely the needle has moved significantly, as the community will never look at police-involved shootings or deaths in the same way, and that is nothing but positive," Gaertner said.
That shifting mentality could sway the body camera footage in the prosecution's favor, Daly said.
"[The video] does impact people and it's something you can't ignore if you're the defendant," he said. "It's probably the most powerful argument the prosecution has ... and then on top of that, how people feel about police and use of force. It's going to have an impact because people are pretty upset."