Kim Potter’s defense team has slammed the case against her as a ‘confusing mess’ and asked for the trial be to be halted with a judgment of acquittal at the start of the seventh day of testimony.
Defense attorney Paul Engh made the request immediately after the state rested Thursday morning, setting the stage for a defense that will have Potter directly addressing the jury.
Addressing Judge Regina Chu in Hennepin County District Court, Engh characterized the state as presenting evidence ‘inconsistent with a verdict of guilt’ in the shooting of Daunte Wright and called for the decision to be taken out of jurors’ hands.
Engh pointed to the ‘conflicting testimony’ of the state’s own witnesses. Several officers took the stand to say that Potter was justified in using her taser and would have been justified in using deadly force.
Former Brooklyn Center Police officer Kim Potter (pictured with her defense team at the Hennepin County Courthouse in Minneapolis during the seventh day of her trial) confirmed Thursday that she will testify
Defense attorney Paul Engh asked for the trial be to be halted with a judgment of acquittal at the start of the seventh day of proceedings
Officer Kim Potter, a 26-year veteran in the force, claims she accidentally shot Daunte Wright (right) when she reached for her gun instead of her taser during a traffic stop over his expired plates in Brooklyn Center, Minnesota on April 11
But the prosecution’s own Use of Force expert, Professor Seth Stoughton testified that neither could be considered reasonable.
According to Engh: ‘The state has presented witness after witness who’ve indicated that the taser was quite reasonable and should have been used.
‘So, we have discordant [evidence]…It’s a confusing mess really and I say that with all due respect to my colleagues on the other side.’
After hearing a brief argument from Assistant Attorney General Matthew Frank, Judge Chu ruled that the trial should continue.
She reasoned that in making such a decision the evidence had to be ‘viewed in the light most favorable to the prosecution.’
The prosecution rested its case early into the proceedings Thursday after having called more than 20 witnesses across six days of testimony, some of whom did more for the defense than their own case.
Jurors will now hear from the defense that will have Potter directly addressing the jury.
It wasn’t clear when Potter would take the stand. Her attorneys also planned to call several character witnesses to testify on her behalf, though the judge ruled Wednesday that they would be limited to three.
Defense Use of Force expert Stephen Ijames demolished testimony given by the state’s expert yesterday.
Ijames was the first witness called by the defense as they began their case in chief.
He disagreed with Professor Seth Stoughton’s assessment of Potter’s use of force on every count.
Yesterday Stoughton characterized Potter’s use of force as ‘unreasonable’ and ‘disproportionate.’
Today Ijames told the court that Potter’s decision to use a taser was ‘completely consistent’ with training and practice.
As for Stoughton’s assertions that Wright was too close to use a taser and that the proximity of other officers rendered it reckless Ijames said this was ‘completely untrue.’
The vastly experienced police officer of 44 years explained that the Taser 7 was designed to have close range capability and drew from his own career saying, ‘We shoot close all the time. You can make a mistake but it doesn’t prevent you from doing what you need to do in most scenarios.’
In testimony that came as a direct reproach to Stoughton’s Paul Engh asked Ijames for his view on Stoughton’s assertion that the officers could simply have let Wright go despite the outstanding bench warrant against him.
Ijames rejected this outright and said, ‘Police officers enforce the law and an order from a judge is literally the highest order.
‘A court order says they will be arrested and if they’re not there are repercussions. It’s not a request. It’s not a suggestion. It’s an order to arrest and that’s what people do. It’s a dereliciton of duty not to.’
Ijames also cautioned jurors over placing too much emphasis on bodycam footage. According to him, ‘The video records exactly what is happening without any of the processes a human being goes through.’
Where Stoughton spoke from the standpoint of an academic, Ijames spoke from the standpoint of a practiced officer of the law. In his experience, he told jurors, human beings in moments of great stress get tunnel vision, find loud noises silence or quiet sounds magnified.
‘Almost no-one,’ he concluded, ‘Can actively speak to exactly what happens [in a critical incident] because their body cannot record [or process] exactly what happens.’
Many of the jurors took notes as Ijames testified, with several apparently noting that he had won an award for bravery as well writing as he gave his opinions.
The last witness called by prosecutors Wednesday was Daunte Wright’s father, Arbuey, 42, – a final ‘spark of life’ witness to speak to the 20-year-old’s life rather than the manner of his death.
Wright Sr’s testimony was brief. He told prosecutor Erin Eldridge that he loved his son and missed him ‘a lot…every day.’
Wright was his first son with Katie Bryant, who testified on the first day of the trial and told how she rushed to the scene of her son’s death on April 11.
Earlier on Wednesday, a Taser expert testifying for the prosecution told jurors in the that, ‘mistakes happen’ in policing and described the former cop as ‘peaceful and law-abiding.’
Brooklyn Center Police Department Sgt Mike Peterson became the third state witness to bolster the defense’s case that Potter’s use of force was justified and that her shooting of Daunte Wright, 20, was a terrible mistake rather than a criminal act.
Defense attorney Paul Engh pointed out that the taser company’s own warnings and liability waiver pointed to the risks of confusing the weapon with a handgun.
‘It happens,’ Engh said. Peterson agreed.
Engh painted the scenario in which Potter, 49, and her fellow officers found themselves on April 11 when the traffic stop went sideways and ended with Wright’s death.
He asked Peterson, BCPD’s taser training officer, if a cop would be justified in using a taser under those circumstances.
Later on Wednesday, Professor Seth Stoughton (pictured) – the state’s Use of Force expert -took the stand to contradict the testimony of law enforcement officers called so far, telling jurors that Potter would not have been justified in using deadly force during the encounter
Peterson, BCPD’s taser training officer, gave evidence bolstering the defense’s case that Potter’s accidental fatal shooting of Daunte Wright, 20, was a terrible mistake rather than a criminal act
In this image provided by the prosecution shows the difference between a Taser and a Glock
Peterson replied: ‘If that was a training scenario that was put in front of me, or one I had created, then use of a taser would have been reasonable.’
Under further questioning over the split-second decisions officers must make, Peterson said that they could not be second-guessed with the benefit of 20/20 hindsight.
Instead, he said: ‘Mistakes happen in every part of our world…There are too many variables to have planned out in advance to be able to eliminate that.’
Potter, 49, is charged with first- and second-degree manslaughter in the April 11 shooting of Daunte Wright
However, the state’s Use of Force expert Professor Seth Stoughton later took the stand to contradict the testimony of law enforcement officers called so far, telling jurors that Potter would not have been justified in using deadly force in her encounter with Wright.
Potter’s defense maintains that the ex-cop would have been entitled to draw her Glock in a bid to protect her fellow officer, Mychal Johnson, who they have characterized as ‘dangling’ out of Wright’s car and at risk of being dragged, injured and even killed should the car have driven off.
Three of the state’s own witnesses have testified to this opinion.
But, taking the stand Wednesday morning, Stoughton – who was a state Use of Force Expert at Derek Chauvin’s trial – said that having reviewed all the evidence, ‘The use of deadly force was not appropriate, and the evidence suggest that a reasonable officer could not have believed that it was proportionate to the threat at the time. In other words, use of deadly force was excessive and disproportionate.’
He also stated: ‘I think the evidence suggested that [Officer Potter] intended to use the taser and not the firearm.’
In testimony during which the prosecution seemed to regain lost ground, Stoughton made the distinction between ‘risk’ and ‘threat’ saying that officers were not permitted to respond to risk with force.
Earlier in the trial, jurors were shown body cam and dash cam footage of the dramatic moment Potter shot Wright dead after ‘accidentally’ pulling out her gun instead of her taser
In this screen grab from video, a photo of a Glock 9mm handgun carried by Potter was entered into evidence
According to Stoughton, Johnson being ‘over-extended’ into the car, ‘Certainly has the potential, if the vehicle begins moving to be dragged, ejected, seriously injured, run over by the vehicle that’s always a risk.
‘It doesn’t become a threat until there’s ability, opportunity and intention.’
As it was, he said, Johnson was gripping Wright’s hands right before the shooting preventing him from being able to drive the vehicle.
He also said that Potter’s conduct before and after the shooting indicated that she had no intention of using deadly force, and that no reasonable officer would have used it given the facts before her.
Stoughton did not believe that a reasonable officer would perceive any threat to Johnson, or even the extent to which he was in car.
And he cast doubt on whether Potter could even see Johnson’s position. He said that while bodycam footage should not be mistaken for the perspective of an officer, ‘for the vast majority of the 8 seconds that Johnson was in the car you can’t really make that out at all on Officer Potter’s body-worn camera.’
The proximity of the other officers and a passenger also mitigated against a reasonable officer using deadly force, Stoughton said.
He explained that this was because it is generally accepted that officers miss their targets more than they hit them and known that bullets can over-penetrate and hit others.
In testimony that appeared to contradict his earlier statement Stoughton went onto say that, if Potter had been aware of Johnson’s initial position in the car and not known that he had prevented Wright from driving or that he had pulled out of the car, then the use of deadly force ‘would be proportionate.’
He added however that it would still not be ‘appropriate’ due to the proximity of the other officers and the passenger.
He concluded: ‘The use of a taser was unreasonable and inconsistent with generally accepted practices.’
Whether or not the taser had been successful, he said, its deployment risked turning Wright’s car into, ‘an unguided missile,’ if he stepped on the gas.
In any event, he told the jury: ‘The results are not good for the police.’
According to Stoughton, Wright presented a threat of flight but could easily have been found and apprehended at a later date.
Almost immediately attorneys for Potter objected.
Judge Chu cleared the court while they made an impassioned plea to be allowed to introduce evidence of Daunte Wright’s ‘prior bad acts’ or move for a mistrial on the back of the expert’s testimony.
Responding to Stoughton’s assertions Engh said: ‘We don’t believe he’s reviewed an inch think file on every time he [Wright] gets arrested he tries to escape, every court appearance he misses, every time he can get away, he gets away.
‘We’ll find him he’ll be arrested, no big deal [as Stoughton testified] is false!
‘And the jurors are writing it down, they’re making notes and we need to rebut the falseness of this opinion.’
His voice rising further Engh said: ‘A false predicate and false fact denies us due process and if you’re ruling is that we can’t ask about it we have to ask for a mistrial and I’ll make an offer of proof of every time this kid has run away and not been found.’
The last witness they called Wednesday was Daunte Wright’s father, Aubrey, 42, – a final ‘spark of life’ witness to speak to Wright’s life rather than the manner of his death
Judge Chu admitted: ‘I do think the jury has gotten the impression that he could easily been apprehended later and there is a basis for believing that he wouldn’t have.’
But she ultimately ruled that the evidence would not be admissible given that Potter was unaware of Wright’s history at the time of the attempted arrest.
In a brutal cross examination Earl Gray made much of the fact that Stoughton had not been a patrol cop for more than 15 years and had little, if any, experience of critical incidents himself.
He often harangued him and demanded that Stoughton answer lengthy questions with a simple ‘yes’ or ‘no.’
And he pressed him to agree that it was ‘less than a second’ elapsed between Potter’s warning ‘Taser! Taser! Taser!’ and the gunshot and that Johnson was still partially in the car when that warning came.
The testimony comes after prosecutors suffered a double blow at the start of the fifth day of trial Tuesday when they failed in their bid to bring two motions undermining the credibility and limiting the scope of testimony of law enforcement officers.
In a brief hearing Tuesday morning, Judge Regina Chu dismissed the argument made by Assistant AG Matthew Frank ahead of Day Five of testimony in Daunte Wright’s shooting.
Frank attempted to claim that the testimony of former Brooklyn Center Police Sergeant Mychal Johnson could have been bias even though he was not a union member.
Johnson was called as a state witness Friday but told the court that Potter was not only within her rights to use her taser but that, under the circumstances she would have been justified in using lethal force.
According to Judge Chu: ‘Here’s the problem I see, former officer Potter is no longer connected to the police union in any way so witnesses who are testifying couldn’t possibly be bias to testify in her favor because of her position.’
She concluded: ‘I’m going to find that the question about union membership and officer Potter’s former activities are not relevant to show bias. I am denying the motion.’