A glaring miscarriage of justice – the law of self-defense

Above all, I believe that everyone is enjoying a safe and happy holiday.

Secondly, many thanks to all of you who wished for the best and prayed for my wife, Emily, who underwent breast cancer surgery about a week ago and is currently recovering from the procedure. The operation went very well, the recovery went as smoothly as we could have hoped, and the cancer itself was detected very early, so we still expect a positive result.

Finally, I would like to share some quick observations about the conviction of Kim Potter in two murder points for shooting Duante Wright. I realize that the conviction is now behind the week, but I feel obliged to write down my final thoughts on the case, just to close the circle in this process, in which we have all invested considerable time and effort.

As the title of today’s content suggests, my expert opinion is that convicting Potter on charges of manslaught is a glaring miscarriage of justice based on the fact that manslaughter in this case duly required proof of reckless conduct, that reckless conduct in this case correctly demands that Potter knowingly ignore the unjustifiable risk of death or serious injury to Duante Wright and that no evidence be presented to the jury that Potter knowingly ignored the risk that led to Wright’s death.

In fact, it was undisputed during the trial that Potter never even knew she had a gun in her hand during her encounter with Wright, and one cannot consciously ignore a risk that one does not even know exists.

To the extent that Potter should be held liable for the unintentional killing of Wright, this liability is, in the worst case, based on negligence, ignorant create an unjustified risk and expose it only civilian responsibility. Absent and conscious ignoring risks for which there is no evidence in this case, its conduct cannot be qualified as recklessness increase criminal responsibility.

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Again, to the extent that Potter should be held liable for the unintentional killing of Wright, this responsibility is, in the worst case, based on negligence, ignorant create unjustified risk and expose it only to civil liability. Absent and conscious failure to respect the risk, for which there is no evidence in this case, her conduct cannot be qualified as recklessness giving rise to criminal liability.

This difference between negligence raises only civil liability – that Potter he should have known created an unjustified risk of death – and carelessness increasing criminal responsibility – that Potter he knew created an unjustified risk of death – is an extremely old and well-established law and is found throughout the relevant Minnesota law, including the jury’s instructions to the jury in this process and the relevant case law on negligence in the contexts of both manslaughter and firearms use.

With regard to first-degree killings, the relevant jury instruction in the relevant section requires the State to prove beyond a reasonable doubt that the risk Potter created was “one which it is aware of and which it ignores”.

Similarly, the jury’s instructions on second-degree killings in the relevant section require the state to prove beyond a reasonable doubt that the risk Potter created was a risk that it “knowingly accepted”.

In terms of the case law on this issue of recklessness, it is a clear decision of the Supreme Court of Minnesota on this issue State v. Frost, 342 NW2d 317 (MN Sup. Ct. 1983). Frost cites the respected legal treatise, “Wharton’s Criminal Code,” which provides a concise and well-established distinction between mere civil negligence on the one hand and criminal ruthlessness on the other.

“Carelessness” and “negligence” can be defined as follows:

When one acts “ruthlessly”. consciously ignores a substantial and unjustified risk that an element of the crime exists or will result from its conduct….

When one acts “carelessly”. he should be aware a substantial and unjustified risk that an element of the crime exists or will result from its conduct….

Each actor creates a risk of harm. He is a ruthless actor is aware of the risk and ignores it; the sloppy actor is he was not aware of the risk, but he should be aware of it.

(Emphasis added.)

In this case, the prosecution never claimed that Potter was aware that she had a weapon in her hand, and therefore that she was aware of the risk of death or serious injury, and deliberately did not take that risk into account.

What was worse was that during the state rebuttal – that is, after the defense no longer had the opportunity to raise a counter-argument to the jury – the prosecution informed the jury that they had no legal duty to prove that Potter was indeed aware that she was holding a weapon and therefore had no duty. all doubt to prove that Potter was aware that she created a risk of death or serious injury, and she did not take that risk into account.

The state told the jury that it could find Potter guilty of manslaughter on negligence, even though the prosecution has not been proven beyond a reasonable doubt that she had deliberately ignored the risk that caused the death.

This is not a law of killing or a law of negligence.

What might the conscious disregard for risk look like in this case? Imagine that Potter hypothetically found herself fighting alongside her fellow officers to legally arrest Duante Wright, went to deploy her Taser, and suddenly realized she had left him back in the station building.

He then deliberately decides to draw the Glock 17 pistol so as not to cause lethal force, but only to pretend that it was her Taser to bluff Wright, to stop resisting. Then, fully aware that he has a real weapon in his hand, something about the fight causes Potter to inadvertently fire the weapon and kill Wright.

Probably like that know deployment of a firearm under these conditions I would they represent the creation of an unjustifiable risk that Potter “recognizes and disrespects” as required for first-degree killing, or the creation of an unjustified risk that Potter “consciously” takes as required for second-degree killing.

However, no evidence of such conscious ignoring or conscious risk-taking was presented in this study.

In fact, the state created a new theory of homicide from the whole substance that has no basis in Minnesota law, probably because the actual evidence in this case failed to support Minnesota’s real law of reckless homicide.

Maybe such a theory of homicide is justified, and maybe not, but it’s a decision in the Minnesota legislature, not a prosecution in a particular criminal case with a particular defendant.

Judge Regina Chu, who presided over the trial, also failed in her fundamental duty to ensure that the jury was properly informed of the applicable law by effectively allowing the state to give the jury incorrect instructions about the law and without redress by the senate. , so the naive jury will accept this incorrect statement as a real Minnesota law from which she could find guilt.

The jury is, in fact, the one who finds out the fact, but the law is determined by the court – leaving it to the jury to decide whether recklessness requires consciously ignoring the risk is a fundamental failure of the process. court, act of violence against due process and miscarriage of justice.

It should be noted that although the defense team did a reasonably good and often excellent job in this process, cross-examining state witnesses and directly examining defense witnesses, Attorney Earl Gray far from perfection in his closing remarks, surprisingly deciding to devote considerable time to the unconvincing replacement argument. causes instead of the key to the whole case of the absence of intentional ignoring of a known risk.

That is, the defense, after refuting the state’s allegations, argued that it did not have to prove beyond a shadow of a doubt that Potter knew he had a gun in his hand to demonstrate a deliberate disregard for the risk of recklessness needed for sentencing. in the case of both allegations of homicide – which, by the way, was an objection to which Judge Chu surprisingly chose not to respond directly – so at least this critical question is retained for appeal.

However, as I have often noted in the past, appeals are for losers, with all legal presumptions now favoring a guilty verdict rather than a defendant’s innocence and taking up perhaps years of time – which Potter spends in prison – and huge sums of legal remedies – which Potter will have to provided from its own resources.

However, Potter has one possible appeal advantage that most criminal appellants do not have. In most cases, a successful appeal does not mean that the defendant was suddenly found not guilty, it only means that the defendant has the right to a new trial in which he could very well be sentenced again.

In Potter’s case, however, if her conviction were overturned due to an incorrect statement of criminal recklessness, which Judge Chu allowed in the trial, the second trial (which, presumably, was also presided over by Judge Chu) would probably require repair a lesson on recklessness – and a trial on the correct version of negligent homicide would not seem viable in the light of the facts of the case, given the absence of any evidence of deliberately ignoring the risk.

OK, guys, that’s all I have for you on this topic right now.

One last note: I expect to return to our normal productivity rates before mid-January, but the content may be somewhat intermittent until then. It all depends on the circumstances.

Until next time:


You carry a gun, so it’s hard to kill you.

You know the laws, so it’s hard to convict you.

Stay safe!

– Andrew

Attorney Andrew F. Branca
Self Defense Law LLC

Platinum protection program of the Self-Defense Act

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