Alan Dershowitz, Andrew Branca, benefit of the doubt, Brooklyn Center MN, Duante Wright, John Hinderaker, Judge regina Chu, Keith Ellison, Kim Potter, negligence, race hustlers, recklessness, Robert Barnes, Taser
Do the police deserve the benefit of the doubt? By that I don’t mean they must automatically be adjudged innocent in any and every possible circumstance. I mean that when a responsible police administrator could choose to discipline or not to discipline, when they could reasonably choose a mild punishment or a harsh punishment, should officers be given the benefit of that doubt? And when a reasonable, non-political prosecutor could reasonably choose to prosecute an officer, or not prosecute them—not all charging decisions are black and white–what then?
Obviously, these decisions should take into account all relevant factors, including the officer’s past record, the actual circumstances, the officer’s intent, whether the incident was culpable negligence or merely an accident, whether mere negligence—civil liability—or actual recklessness—criminal liability—was involved, and more. Should such decisions be made by people with actual knowledge of the realities of police work, or by “activists” with political axes to grind? By people who know exactly how fast and badly things can go wrong out on the street, or by people with the luxury of hindsight– knowledge an officer did not have at the time–and unlimited time to make a decision from a comfortable office chair, an officer was forced to make within fractions of a second?
Do we judge officers—others, our entire society–by race?
Do we recognize, always, we are limited in police hiring by having to hire exclusively from the always fallible human race. Do we recognize no matter how well trained, how experienced human beings are, they still make mistakes, or do we expect perfection where none is possible? And if we do, what are the consequences for us all? Those dancing in the streets in demented joy at the conviction of Kim Potter had better have answers, and no, the answer is not to defund the police or replace them with social workers, psychologists, “safe streets workers” or “violence interrupters.”
Doctors, who are far better educated in the specific knowledge, behaviors and performance of their jobs, make far, far more deadly mistakes every year than police officers, but virtually none of them ever face criminal penalties.
NOTE: This is a long article, gentle readers, but I trust you’ll find the information and insight necessary to understand why this case does not portend well for any of us.
I first wrote about Kim Potter in May of 2021 in Babbit And Potter: Two-Tiered Justice. I began that article with this:
I am not a racist. I know: saying that is the surest evidence I am a racist, because if I weren’t a racist, why would I feel the need to say I’m not a racist unless I really am a racist and want to distract anti-racists from recognizing and exposing my racism? Even remaining silent about racism in an attempt not to attract the wrath of actual racists is absolute evidence of racism, because ‘silence is violence.’ It’s also not enough not to be racist, which is impossible of course, because all white people are racist, but one must be ‘anti-racist,’ which by its required acts of debasement and simpering atonement is an admission of racism in and of itself. We racists/non-racists just can’t win.
The Black City Manager of Brooklyn Center made the mistake of saying Kim Potter deserved due process. For that he was promptly fired by the Black Mayor. The Mayor immediately assumed authority over the police department. The Police Chief immediately resigned, as did Officer Potter. Both knew they would be fired if they did not, and Officer Potter was, long before any investigation could possibly be completed, arrested and charged. The Mayor asked racist Attorney General Keith Ellison to prosecute Potter.
Does all of this reveal a two-tiered system of justice? Can any white American, should they have the misfortune to have to lawfully shoot a Black criminal, believe a charging decision will be based solely on the evidence and the law, that race and politics will play no part. If charged, can they believe they will receive due process and a fair trial? If convicted, can they believe they’ll receive the same consideration for mitigation of sentence most criminals receive? Can any police officer, white or Black, believe the same? If they cannot, can America be said to have a single, equal system of justice?
I’ll not spend any time going over the trial. By now I’m sure you know, gentle readers, former Officer Kim Potter, on December 23, 2021, was found guilty of two counts of manslaughter. Judge Regina Chu—more about her later—rather than allowing Potter to remain free while appealing the sentence as the law allows, ordered her immediately jailed, destroying potentially the last Christmas she will ever spend with her family.
I was not able to watch his trial, but followed it closely through the good graces of Andrew Branca at Legal Insurrection, and other sources. I’ll include links at the end of this article in case you’d like a daily account of the trial. Suffice it to say, the verdict was wrong, morally, practically and legally.
To understand why it was wrong, we need to understand the difference between criminal and civil liability. There are basically three classes, or domains, we must understand:
1) Mistakes: We all make them. A mistake occurs due to unforeseeable circumstances. With mistakes, there is no civil or criminal liability.
2) Negligence: When mistakes are made under these circumstances, whether one didn’t know, or should have known, it’s negligence, not a crime. It’s a civil rather than a criminal matter.
3) Recklessness: Keep in mind “negligence” and “recklessness” have very specific meanings under the law which are not the same as the commonly understood and applied definitions of those words in colloquial usage. Legally, one acts recklessly when they know they’re engaging in an unjustified risk and they consciously disregard that knowledge and act anyway.
In this case, Potter honestly believed she was holding her Taser, not her Glock handgun. The video evidence, all testimony, including Potter’s, made that absolutely clear. She did not believe she was engaging in an unjustified risk, so she could not have disregarded that belief when she pulled the trigger of what she believed was a Taser. In other words, she did not act recklessly, which is absolutely necessary for conviction under Minnesota law, and there was no evidence presented otherwise. There was no evidence whatever to establish recklessness under the law.
Before I provide the commentary of several legal experts, it might be useful to visit this Ann Coulter article about Duante Wright, the latest holy social justice martyr. As one might reasonably expect these days, Wright was a vicious, violent criminal with not only a substantial juvenile record, but a substantial head start on an adult record. He was a card-carrying member of the FFA—Future Felons of America:
Daunte Wright is the half-black man fatally shot by a police officer in Minnesota earlier this year. According to Nexis, he has appeared in well over 100 articles in the Times. But one thing Times readers will never be told is that Wright was facing criminal charges for trying to choke a woman to death while robbing her at gunpoint.
They will also never hear about the lawsuit accusing Wright and an accomplice of shooting a guy during a carjacking.
In a bold departure from customary practice, the Times did make two passing references to another lawsuit claiming Wright shot a guy in the head, permanently disabling him, but in both cases, quickly added: “The lawsuit offers no direct evidence tying Mr. Wright to the shooting.’
And those are just the crimes he’s accused of committing lately, during the brief year and a half since he turned 18 and was no longer treated as a juvenile.
Coulter also explains precisely why Wright was stopped—there was more than enough probable cause for the stop—and why Potter was justified shooting Wright rather than using a Taser. This incident had nothing whatever to do with race, though it was immediately turned into a racial circus. Minnesota attorney John Hinderaker of Powerline commented:
In my opinion, the verdicts are wrong and should be reversed on appeal. The first degree manslaughter count requires that Potter caused another’s death ‘in committing or attempting to commit a misdemeanor or gross misdemeanor offense with such force and violence that death of or great bodily harm to any person was reasonably foreseeable…’ But Potter was not committing or attempting to commit a misdemeanor or gross misdemeanor, she was executing a lawful arrest of a criminal. There was a similar issue in the Derek Chauvin case.
Further, she did not act with ‘such force or violence” that death or great bodily harm was foreseeable.’ On the contrary, what was foreseeable to her when she tried to pull her taser was minor injury at worst.
The second degree manslaughter charge requires that death be caused ‘by the person’s culpable negligence whereby the person creates an unreasonable risk, and consciously takes chances of causing death or great bodily harm to another.’ There was no evidence that Potter ‘consciously’ took the chance of ‘causing death’ to Daunte Wright. Consciously, she was trying to use her taser, which would not have killed or seriously injured Wright.
Hinderaker is referring to the specific language—the elements–of the laws Potter was convicted of violating. When he writes: “There was no evidence,” he’s saying the Prosecution introduced no evidence at trial—none—to prove the elements of the offenses, nor did anyone else. That’s very different from what the public “knows,” or thinks it knows based on the ravings of race hustlers and the narrative-based “reporting” of the media.
In my opinion, Attorney General Keith Ellison should not have brought these charges against Potter, and Judge Regina Chu should not have submitted them to the jury. Will Potter’s conviction be reversed on appeal? It should be, but I don’t think anyone holds out much hope that Minnesota’s appellate courts have that kind of courage. The lynch mob atmosphere that prevailed in the Chauvin trial was more muted here, but I assume there would be riots if an appellate court did the right thing.
Indeed, Potter’s convictions should be reversed on appeal, and the charges absolutely should not have been brought, but I’ll address that in more detail shortly. Go here for the Discover The Networks profile of Ellison. It’s not pretty. At Newsmax.com, Prof. Alan Dershowitz commented:
‘Let’s start with the obvious truth: There was no crime committed here at all,’ Dershowitz told “Saturday Report.” ‘This is like getting in your car and you see a kid running out in front of you, and you immediately slam your foot on the brakes, but by accident, you put your foot on the gas and you killed the child.’
‘Horrible tragedy, not a crime. It’s not a crime to make a mistake, and she was falsely convicted of anything.’
Judge Regina Chu ‘acted lawlessly’ in denying bail for Potter, and Democrat state Attorney General Keith Ellison engaged in ‘a complete abuse of justice,’ Dershowitz told co-hosts Carl Higbie and Amanda Brilhante.
‘This judge acted lawlessly,” Dershowitz said. “The law in Minnesota is you are entitled to bail pending appeal, if your appeal isn’t frivolous – and it isn’t frivolous – and not likely to flee – she’s not going anywhere – and if you’re not a danger to people,’ Dershowitz said, noting the judge has failed to strictly apply those criteria to a repentant 26-year police veteran.
‘She engaged in completely lawless behavior, and I think if Potter’s lawyers appealed the denial of bail immediately to the appellate courts, she may very well be released, pending appeal.’
Dershowitz noted manslaughter is ‘recklessly killing’ someone, but he rejected the notion that evidence was proved beyond a reasonable doubt Potter recklessly pulled her gun, thinking it was a Taser, in shooting a fleeing, wanted, felon Wright.
‘And very likely certainly – not certainly, certainly – but very likely she might get her conviction reversed,’ Dershowitz continued. ‘There’s simply not enough evidence that she committed any crime whatsoever.’
Take the link to see why Potter absolutely should not be jailed pending appeal. At Legal Insurrection, Law Of Self-Defense specialist Andrew Branca commented:
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 Daunte 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.
Precisely. What has also not been reported is Judge Chu did not correct the misstatement of criminal recklessness in the jury instructions, an error on her part that should be grounds for reversal.
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.
This is an important point. Potter might spend years in jail waiting for an appeal to be heard and decided, and if the convictions are reversed, she’s surely facing another trial.
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.
Go here for a video seminar featuring Branca and several other legal and use of force experts. It assumes a certain knowledge base on the part of the viewer, but Branca’s commentary in particular is very clear and helpful to the legal and police policy layman. Particularly useful are the explanations of why the “she should have known it was a Glock and not a Taser” argument is nonsense.
At PJ Media, Potter’s defense attorney, Robert Barnes, spoke of the verdict and its obvious implications:
Defense attorney Robert Barnes shook his head in disgust and said, ‘it’s not possible to get an impartial trial in the Twin Cities. That’s a ridiculous verdict.’ He lamented, ‘you’re nuts if you stay a cop in the Twin Cities.’
Barnes means it’s impossible for a police officer to get an impartial trial, particularly when a white officer kills a black criminal, regardless of the facts and the law.
Robert Barnes reacted to the judge calling the jurors ‘heroes’ in the courtroom after the verdict was read on Thursday. ‘You’re villains. You didn’t do your jobs,’ he fumed. And he lambasted the Ellison-influenced prosecutorial milieu in which Twin Cities residents find themselves, saying, ‘this case is absolute proof there’s zero chance of getting an impartial jury. This is like Martin Luther King being tried in Birmingham. Attorneys had better be moving to transfer their cases out of this jurisdiction.’
Take this link to local station KARE11’s account of a Potter juror’s account of deliberations. The juror—identity unknown—said this:
This case was interesting because there weren’t really facts that were in dispute. It was more our interpretation of our jury instructions and the law.
It is the sole job of the jury to determine the facts, not the law! Ruling on matters of law is the sole province of the judge. This admission will be useful at appeal. Mary Chastain at Legal Insurrection provided a variety of comments by various cracktivists in response to the verdict. Here’s one from Al Sharpton, because of course:
And one from Wright’s brother:
This is particularly ugly:
And this, from Obama’s HUD secretary, is very much the narrative rather than the law and reality:
Take the link to see the rest if you have a strong stomach. They’re happy social, not actual, justice was done.
Analysis: It’s absolutely clear Kim Potter was charged, not by the local prosecutor, but by Keith Ellison, the racist, leftist state AG, because she was white, and Duante Wright, a vicious criminal, was black. Not only did the officers have more than sufficient probable cause to stop Wright—it was not a chickenshit stop—they had more than sufficient probable cause to arrest him—there was an active warrant for his arrest! It was an arrest he violently resisted.
As in all cases of this type—a black criminal dies during an arrest by a white officer (though one of the officers was black)—there is absolutely no way the officer was not going to be charged and convicted in Minnesota, one of the most virulently leftist states in America. Potter was arrested and charged within a few days, far more quickly than any competent investigation could have been done.
The video evidence was clear: it was a mistake. Combined with all testimonial evidence, it should have been clear to any competent, non-political prosecutor: there was no evidence to support recklessness under Minnesota law. No recklessness, no criminal charges.
Judge Chu, who made reversible error, caused the jury to argue over the law, not the facts. Not only that, she jailed Potter, denying her right to bail on appeal. Potter, a 26-year law enforcement veteran is no threat to anyone, and surely no escape risk, yet to appease the mob—the threat of mob violence was and is very real—she jailed Potter. Regarding Judge Chu, consider this from Alpha News:
Chu did this on January 10, 2022, just a few weeks after jailing Potter. Take the link to read the rest, but the article ended with this:
Chu is best known for presiding over the manslaughter trial of former Brooklyn Center police officer Kim Potter. This is not the first time the Hennepin County judge has released violent criminals back onto the streets. Earlier this month, she temporarily released a man from jail so he could attend a funeral, but he never came back.
Draw your own conclusions, gentle readers, about the professional conduct, partisanship, and judicial temperament of Judge Chu. Is she capable of giving a white police officer a fair trial?
The life span of any police officer in jail is measured in days. In Minnesota, a jail sentence for Potter is a death sentence. If her case if not overturned on appeal, any Minnesota Parole Board would surely keep Potter in jail for the full length of her term—that’s surely going to be essentially life–though it’s unlikely she’d live that long, social justice being the standard.
Finally, as Attorney Barnes noted, any police officer remaining on the job in Minnesota must be deluded or insane. It is this kind of racialized, gross miscarriage of justice that is not only causing a mass exodus of professional police officers from blue cities and states, but is making it all but impossible for agencies in those places to recruit and retain qualified candidates.
What Minnesota police officer can possibly imagine they’ll get the benefit of the doubt–to say nothing of the letter of the law–they need to do their jobs? What police officer anywhere can be sure of that benefit of the doubt?
Certainly, many will remain. They have familial and/or financial roots, they don’t want to move, or they know they’re unlikely to get a job elsewhere, and if they have rank, they’ll certainly not get a new job at the rank they currently hold. There is absolutely no guarantee of lateral transfer from one agency to another, and with few exceptions, people begin at the lowest rung on the rank ladder when they take a new job.
The officers that remain, though many will not be the cream of the crop, are quick to learn the essential lessons, and as a result, they will stop proactive law enforcement. They won’t be looking for bad guys. They’ll do the absolute minimum, answering calls, and avoiding any call that might require them to get physical with anyone, and particularly black criminals. In many of those cities and states, most crime is committed by black criminals, often against black victims, and when officers do the minimum to remain employed, and more importantly, to avoid prosecution for doing their jobs, crime rates skyrocket, as we’re seeing every day.
When criminals know there will be no consequences even if they do, by some miracle, get arrested, everything goes to hell. In 2021, 346 police officers were killed on the job, a 20-year high. There was also a 115% increase in ambushes of police officers. Organized looting, carjackings, train burglaries, you name it, it’s happening.
Who in their right mind wants a career in police work? Who, particularly if they’re smart and capable, wants to run those kinds of risks?
And who, among the law-abiding, wants to run the risk of life in prison, or worse, if they defend their life, or the lives of loved one, against the kinds of criminals people like Judge Chu release on no bond?
If you’re interested in reading Branca’s daily coverage of the trial, here are the links. Branca’s analysis is clear and non-technical. I warn you, if you’re not an insane leftist, it will make you angry, and very, very worried.
Stop by tomorrow for an article on the realities of policing.