Trial of Kim Potter (Daunte Wright Shooting)

[Wonderfulspam]

Two former officers have been convicted for having mistakenly shot dead detainees:

Johannes Mehserle was found guilty of involuntary manslaughter & sentenced to two years.

https://en.wikipedia.org/wiki/Shooting_of_Oscar_Grant#Sentencing

Robert Charles Bates was found guilty of second-degree manslaughter (unintentional homicide resulting from criminal negligence) and sentenced to four years in prison, and was released after serving 18 months.

https://en.wikipedia.org/wiki/Shooting_of_Eric_Harris
......

Potter is charged with...

First-degree manslaughter, predicated on reckless use/handling of a firearm, a more serious charge than second-degree manslaughter, carrying a maximum penalty of 15 years in prison and a $30,000 fine.

Second-degree manslaughter, "culpable negligence creating unreasonable risk" that carries a maximum penalty of 10 years incarceration and/or a $20,000 fine.

[Wonderfulspam]

Trial of Kim Potter, shooting of Daunte Wright — Day 4

https://www.youtube.com/watch?v=t_DPR_1Cvug

[Wonderfulspam]

Law of Self Defense: Another Day of Largely Pointless State Evidence

https://www.youtube.com/watch?v=TU0sz0p4WmI&t=28s


Daunte Wright Shooting Trial Day 4: Prosecution Strategy Of Showing Jury As Many Bloody Photos As Possible Continues

Today was the fourth day of the trial proper, and although today the State worked through seven more of its witnesses in its case in chief it nevertheless appeared to once again to do little but provide evidence on factual matters not in dispute and to which I’m confident the defense would have been happy to stipulate.

The State did not, however, appear to substantively advance a theory of manslaughter based on today’s testimony.  Indeed, most of the day appeared to be an excuse to show the jury numerous and various bloody photos of Duante Wright, his vehicle, his clothing, and so forth.

DR. LORREN JACKSON, MEDICAL EXAMINER

The State’s first witness was Medical Examiner Dr. Lorren Jackson, with the direct examination by ADA Erin Eldridge. Cross-examination would be by Attorney Earl Gray.

Dr. Jackson testified that Duante Wright’s cause of death was a 9mm round to the heart, and the manner of death was homicide—that he was shot by Kim Potter.  I know—utterly shocking.

These undisputed facts took nearly an hour of direct and re-direct testimony. In contrast, the defense spent merely about 5 minutes on cross-examination and re-cross.

There was some discussion on direct and cross about how long someone shot through the heart as Wright had been would remain conscious, with the State arguing for zero or only a few seconds and the defense arguing for as long as perhaps a minute.

This would presumptively be arguing on the question of whether shooting (or Tasing) someone in control of a vehicle is per se reckless because the impaired driver operating the vehicle presents as a foreseeable deadly force threat to others.


SPECIAL AGENT MELISSA LOREN, BCA FORENSIC INVESTIGATOR

Loren was one of the half-dozen BCA investigators called today as witnesses for the prosecution.
Loren’s job was as an on-scene investigator, doing a walk-through of the crash and traffic stop scenes, collecting bits of evidence, finding Potter’s fired cartridge case inside Wright’s vehicle, having Wright’s vehicle towed to the BCA vehicle inspection garage, where BCA conducted a comprehensive examination of the vehicle.

This testimony took about 45 minutes of direct examination, and only about 3 ½ minutes of cross-examination—that brief cross-examination was interrupted by a 5-minute sidebar during which Judge Chu refused to allow the defense to ask about a digital scale discovered in the center console of Wright’s Buick.

The evidence she found was consistent with Potter having shot Duante Wright once in the chest at the site of the traffic stop, then Wright’s car traveling about a block until it crossed into oncoming traffic and smashed into the Lundgren’s vehicle, where it stopped.  From there, Wright’s body would be removed from the vehicle by first responders and after some unsuccessful aid be declared deceased.

Again, shocking.


SA BRENT PETERSEN, BCA FORCE INVESTIGATIVE UNIT

Next up was Special Agent Brent Petersen, who works for the BCA’s Force Investigative Unit—this is the special unit that focuses on use-of-force events involving Minnesota police officers.  The direct examination was conducted by ADA Joshua Larson, and cross-examination by Earl Gray.

The purpose for the State calling Petersen as a witness appeared to be so that they could have him explain to the jury what he personally saw on various body cameras and dash-camera videos.  In particular, the State had prepared a composite video including the body camera of Potter, the body camera of Sergeant Johnson, and the dash camera from Officer Luckey’s squad car.

The major point of Petersen’s testimony was apparently to argue that the bodies of Johnson and Luckey were already outside of the vehicle when Potter fired her fatal shot, such that her use of force was not necessary in order to prevent the two other officers from being dragged in the vehicle.

Of course, the officers had pulled back from the vehicle only in response to Potter’s cry of “Taser! Taser! Taser!,” and by that point, she had definitively committed to firing what she believed to be her Taser—a use of force that would have been reasonable to prevent Wright from fleeing the arrest scene at speed in the Buick and endangering bystanders in his path, even if Johnson and Luckey were no longer in danger.  In any case, had Wright chosen to reverse, the open car doors would have swept up all three officers.

The defense made strenuous objections to this use of Petersen’s testimony, basically narrating what was visible in the videos, on the grounds that the videos spoke for themselves, and the jury could make their own assessments of what they saw.

Apparently, ADA Larson had first proposed to make these arguments using still photographs, which the Judge had ruled against because the stills failed to capture the dynamic nature of the event.  As an alternative, Larson then chose to freeze-frame the actual video—which is not, of course, substantively different than using the still photos.  This led to repeated objections, allowances, more objections, and that brought us right up to lunch.

Separately, it was also notable that the State’s presentation of this composite video appeared to have been slowed down to 50% speed—without informing the court that this was being done—which suggested far more time for decision-making than was actually the case. Also, Potter’s body camera footage was offset a full second from the other two videos that made up the composite.

Separately, Larson had also used Petersen to attest to the particularly injurious nature of hollow-point bullets.

After lunch, Judge Chu informed the prosecution that she would not allow them to continue on this composite video path, and immediately thereafter the State was done with direct of Petersen.

On cross-examination, Gray drew out that hollow-point bullets were routinely used by law enforcement because they were safer for bystanders, and that Petersen himself carried hollow-point bullets in his duty weapon.  Gray also drew out that a body camera could only capture a small fraction of the visual information available to the wider field of vision of a police officer’s eyes, as well as the officer’s ability to direct their vision independent of the body camera’s perspective.


SA MICHELLE FRASCONE, BCA FORCE INVESTIGATIVE UNIT

Next up was Special Agent Michelle Frascone, also from the BCA’s Force Investigative Unit.  Frascone was involved in evidence collection at the traffic and crash sites, as well as the collection of the Glock 17 pistols from Sergeant Johnson and Officer Potter.

The direct examination was by ADA Joshua Larson, and all we learned from Frascone was that Office Potter had used her own Glock to fire a 9mm round into Duante Wright.

So pointless was Frascone’s direct testimony that the defense did not bother to cross-examine her at all.

SA SAM MCGINNIS, BCA FORCE INVESTIGATIVE UNIT

Next up was Special Agent Sam McGinnis, again from the BCA’s Force Investigative Unit.  Here we finally discovered some interesting information, although little of it seemed helpful to the State.  Direct was again by ADA Joshua Larsen, and cross-examination would be by Attorney Paul Engh.

For example, we learned that Kim Potter had received her Taser 7, a brand new model to the Brooklyn Center Police Department, on March 26, 2021, only about two weeks prior to her attempt to use it on Duante Wright on April 11, 2021.  Indeed, it was suggested that at the time Potter was the only officer in the entire department equipped with this new model Taser. Indeed, it was unclear if Potter had ever received substantive training on the new model Taser.

ADA Larson also sought to make a big deal out of the apparent fact that Kim Potter had function tested her Taser only 6 of the 10 times she was on duty between when she was first issued the new-model Taser and when she sought to use it against Duante Wright, when policy called for her to test the Taser before every shift.

None of this meant the Taser was in any way dysfunctional because of her failure to test it—when it was later tested about a month later by SA McGinnis, it tested fine, with 78% batter, plenty to work as intended, even without any tests in the intervening period.

ADA Larson also made a big point out of the fact that the Glock weighed about 2 pounds whereas the Taser weighed about 1 pound.  Larson also had McGinnis point out the various other ways the two weapons differed, including in color, grip size, lights on the Taser but not on the Glock 17, and so forth.

The implication of all this, of course, was that Potter should have known that she was holding a Glock 17 and not a Taser.  I’d note, however, that “should have known” is the standard for a finding of civil negligence, not criminal culpability.

Criminal culpability requires recklessness,, an intentional disregard of a known deadly force risk, and by all appearances Potter believed she had a Taser in her hands.  That mistake certainly appears negligent, but not reckless, and thus not criminal.

Then Larson proposed to have the jury actually hold a deactivated Taser in their hands, and apparently also hold a Glock 17 frame, I guess so they could feel the difference between the two, but Judge Chu did not permit this.

On cross-examination, Paul Engh emphasized that this was a new Taser–he actually twice called it a “gun,” and corrected himself, a clever ploy–and that any failure to test every shift had no substantive consequence, that McGinnis might know how often officers were supposed to test but did not know how often officers actually tested, and so forth.  Engh also noted that when McGinnis had accompanied a consenting Potter to the hospital for a blood test for drugs, nothing was found in her system.

Notably, Engh also asked McGinnis if the Special Agent had ever asked the Taser company why they designed their Taser to be shaped in essentially a pistol-like configuration, instead of some distinct shape designed to avoid confusing Taser and pistol, and McGinnis responded that he did not know why.

FORENSIC SCIENTIST ERIC KOPPEN, BCA DNA TECHNICIAN

Next up was BCA DNA Technician Eric Koppen.

All we learned from him was that the DNA in the blood found in the white Buick was that of Duante Wright, except for a small portion of blood in the passenger area of the car that was unmatched by DNA but almost certainly that of passenger/girlfriend Albrecht-Payton.

Shocking

Direct was conducted by ADA Joshua Larson, and so pointless was this testimony that the defense declined to cross-examine Koppen at all.

BALLISTIC SCIENTIST TRAVIS MELLAND, BCA FIREARMS TECHNICIAN

The final witness of the day was BCA Firearms Technician Travis Melland.  He testified that a test bullet fired from the Glock 17 of Kim Potter matched the bullet recovered from the body of Duante Wright.

Shocking.

Curiously, although ADA Larson had Melland testify that the trigger weight of Kim Potter’s Glock 17 pistol was 5.5 pounds (perfectly normal for an OEM Glock 17), larson never obtained any testimony on the trigger weight of Potter’s Taser 7.

Again, so pointless was this testimony that the defense declined to cross-examine Melland at all.

END-OF-DAY

With that, Judge Chu decided to recess court a bit early for the day.  She did note that she had two written motions from the State to review tonight, and the defense indicated that they would respond orally in the morning.

ADA Joshua Larson also made a request for an in chambers meeting to discuss “an issue” before everyone went home for the night, but that was obviously done outside of the broadcast window for the day.

https://legalinsurrection.com/2021/12/daunte-wright-shooting-trial-day-4-prosecution-strategy-of-showing-jury-as-many-bloody-photos-as-possible-continues/

[Wonderfulspam]

Are prosecutors doing enough to prove what Kim Potter did is actually a crime?

COURT TV

https://www.youtube.com/watch?v=djtN5zfX77w

[Wonderfulspam]

Kim Potter Trial Live Day 5.

https://www.youtube.com/watch?v=S6sOQRqYOEU

[Wonderfulspam]

Daunte Wright Shooting Trial Day 5: Commander: Potter Good Person, Good Cop

Day 5 Summary
https://www.youtube.com/watch?v=nQyqvpmwpJA


Daunte Wright Shooting Trial Day 5: State’s Police Use-of-Force Witness Helps Defense – “She’s a good cop”
“She’s a good cop, a good person, and I had no concerns about going on calls with her.”


Today was the fifth day of the Potter trial and was most notable for being one of the single most boring days of court proceedings of my 30-year career.  The State managed to move completely through only a single witness and barely finished direct examination on their second witness of the day before Judge Chu had blessed mercy on the jury and observers and recessed the court for the day.


STATE MOTION TO IMPEACH THEIR OWN POLICE WITNESSES, RETROACTIVELY

Indeed, the only portion of the day of even modest import was the court hearing a pair of motions from the State.

In the State’s first motion,  prosecutors sought to be permitted to impeach police witnesses—their own witnesses!—on the grounds that some of them belonged to the police union in which Kim Potter had briefly served as president some years prior.

Remarkably, the State even sought to impeach police testimony that had already been given last week, particularly the testimony of Sergeant Johnson, who had fought to arrest Duante Wright alongside Officer Luckey and Potter on April 11, 2021.

Judge Chu denied this motion, on the grounds that Potter’s leadership on the union was sufficiently transient and sufficiently in the past that it was not relevant to show bias among police witnesses.

In the State’s second motion, they sought to object to “lay witnesses” providing testimony more appropriate to that of an expert witness.  They were particularly upset with the testimony of Sergeant Johnson the prior week because he essentially expressed the conclusion that the circumstances of the struggle with Wright were sufficient to justify Potter’s use of deadly force, much less a mere Taser.

In particular, the State asked the court to order the jury to disregard Sergeant Johnson’s testimony entirely, and to prohibit any other officer witnesses from providing similarly conclusory testimony.

The defense responded that they were merely doing normal cross-examination of the State’s witnesses, and if the State had inadequately prepared their witnesses, that was on the State.  The defense also noted that the State made no objection to any of this at the time, but rather had apparently decided over the weekend that they didn’t like the way their own witnesses had testified the week prior.

Judge Chu also denied this second motion, declining to either instruct the jury to retroactively disregard Sergeant Johnson’s testimony or to prohibit other police witnesses from providing testimony with a basis in their training and experience as police officers.


COMMANDER GARRETT FLESLAND:  DIRECT EXAMINATION

The first witness of the day was Commander Garrett Flesland, who is currently the BCPD Commander for both training and patrol (the previous Commander of Patrol had been made acting Chief when Chief Gannon left the department the same day as Potter, two days after the shooting death of Duante Wright).

Commander Flesland’s testimony would prove powerfully favorable to Potter, although not until his cross-examination by Attorney Earl Gray, which we’ll come to in a moment.

The direct questioning of Flesland was conducted by ADA Matthew Frank, and it was a snoozefest of about two hours duration, not counting the morning break mid-way through in which a lengthy discussion among the parties and Judge Chu about Blakely evidence being provided in great volume during the trial.

Frank’s direct examination of Flesland was largely a long and slow plodding through much of the BCPD’s 700-page policy manual—to the point that once Judge Chu paused proceedings to ask Frank if he intended to go through the entire manual line by line.

The pointlessness of all this was the utter lack of any evidence that Potter had violated any of the policies discussed.



BLAKELY FACTORS DISCUSSION
Indeed, the testimony appeared mostly suited to matters of Blakely factors rather than matters of guilt, which led to the mid-morning break discussion already mentioned.

During the discussion among the parties and Judge Chu, while the jury was out of the courtroom, it was revealed that there was a disagreement as to whether Potter had waived her right to a bifurcated hearing on Blakely factors.  These are factors that allow for an enhanced prison sentence if the underlying crime was committed by a police officer in uniform, or endangered a large number of people, etc. (Both of those specific Blakely factors are arguably at play in this case.)

A defendant can either have their guilt and Blakely factors decided in a single, unitary proceeding, or can have guilt and Blakely factors decided in two bifurcated proceedings—also, the defendant can choose to argue Blakely factors either to a jury or directly to the court (as in a bench trial).

The State argued that they believed Potter had waived her right to a bifurcated proceeding and that therefore it was the State’s position that the Blakely evidence was being properly offered in this single, unitary proceeding.

The defense countered that they’d made no such waiver—and Judge Chu also noted that she herself had no recollection of any such waiver, despite the State’s rather frantic protestations to the contrary.  Certainly, there was no such waiver in the record.

This discussion ultimately concluded with Judge Chu having the defense create an explicit record that Potter wished a bifurcated proceeding, with the Blakely factors to be argued directly to the court in the event of a conviction on the underlying criminal charges.

Nevertheless, Judge Chu also concluded that she found no prejudice to the defense from the arguably Blakely factor evidence already admitted, which focused largely on the purported risk to the general public that Potter created when she Tasered Wright as he was behind the wheel of his Buick.  Judge Chu reasoned that such evidence could both serve Blakely purposes and also be grounds for finding recklessness, and she would allow it in this stage of the proceedings for that second purpose.

COMMANDER GARRETT FLESLAND: DIRECT EXAMINATION (CONTINUED)

After the morning break, Frank focused his ongoing direct of Flesland on the BCPD’s Taser policies, including how a Taser was to be worn on the duty belt.  This was extremely unnecessarily slow and plodding, particularly given that Potter’s method of carrying her Taser was entirely consistent with BCPD policy.

Daunte Wright Shooting Trial Day 5: State’s Police Use-of-Force Witness Helps Defense – “She’s a good cop”
“She’s a good cop, a good person, and I had no concerns about going on calls with her.”

Posted by Andrew Branca Tuesday, December 14, 2021 at 08:30pm 4 Comments
Share This StoryFacebookTwitterTelegramGabMeWeRedditEmail

Welcome to our coverage of the Kim Potter manslaughter trial over the April 11, 2021, shooting death of Duante Wright in a suburb of Minneapolis, when then-police officer Potter accidentally used her Glock 17 pistol in place of her intended Taser.

Today was the fifth day of the Potter trial and was most notable for being one of the single most boring days of court proceedings of my 30-year career.  The State managed to move completely through only a single witness and barely finished direct examination on their second witness of the day before Judge Chu had blessed mercy on the jury and observers and recessed the court for the day.


STATE MOTION TO IMPEACH THEIR OWN POLICE WITNESSES, RETROACTIVELY

Indeed, the only portion of the day of even modest import was the court hearing a pair of motions from the State.

In the State’s first motion,  prosecutors sought to be permitted to impeach police witnesses—their own witnesses!—on the grounds that some of them belonged to the police union in which Kim Potter had briefly served as president some years prior.

Remarkably, the State even sought to impeach police testimony that had already been given last week, particularly the testimony of Sergeant Johnson, who had fought to arrest Duante Wright alongside Officer Luckey and Potter on April 11, 2021.

Judge Chu denied this motion, on the grounds that Potter’s leadership on the union was sufficiently transient and sufficiently in the past that it was not relevant to show bias among police witnesses.

In the State’s second motion, they sought to object to “lay witnesses” providing testimony more appropriate to that of an expert witness.  They were particularly upset with the testimony of Sergeant Johnson the prior week because he essentially expressed the conclusion that the circumstances of the struggle with Wright were sufficient to justify Potter’s use of deadly force, much less a mere Taser.

In particular, the State asked the court to order the jury to disregard Sergeant Johnson’s testimony entirely, and to prohibit any other officer witnesses from providing similarly conclusory testimony.

The defense responded that they were merely doing normal cross-examination of the State’s witnesses, and if the State had inadequately prepared their witnesses, that was on the State.  The defense also noted that the State made no objection to any of this at the time, but rather had apparently decided over the weekend that they didn’t like the way their own witnesses had testified the week prior.

Judge Chu also denied this second motion, declining to either instruct the jury to retroactively disregard Sergeant Johnson’s testimony or to prohibit other police witnesses from providing testimony with a basis in their training and experience as police officers.


COMMANDER GARRETT FLESLAND:  DIRECT EXAMINATION
The first witness of the day was Commander Garrett Flesland, who is currently the BCPD Commander for both training and patrol (the previous Commander of Patrol had been made acting Chief when Chief Gannon left the department the same day as Potter, two days after the shooting death of Duante Wright).

Commander Flesland’s testimony would prove powerfully favorable to Potter, although not until his cross-examination by Attorney Earl Gray, which we’ll come to in a moment.

The direct questioning of Flesland was conducted by ADA Matthew Frank, and it was a snoozefest of about two hours duration, not counting the morning break mid-way through in which a lengthy discussion among the parties and Judge Chu about Blakely evidence being provided in great volume during the trial.

Frank’s direct examination of Flesland was largely a long and slow plodding through much of the BCPD’s 700-page policy manual—to the point that once Judge Chu paused proceedings to ask Frank if he intended to go through the entire manual line by line.

The pointlessness of all this was the utter lack of any evidence that Potter had violated any of the policies discussed.

BLAKELY FACTORS DISCUSSION

Indeed, the testimony appeared mostly suited to matters of Blakely factors rather than matters of guilt, which led to the mid-morning break discussion already mentioned.

During the discussion among the parties and Judge Chu, while the jury was out of the courtroom, it was revealed that there was a disagreement as to whether Potter had waived her right to a bifurcated hearing on Blakely factors.  These are factors that allow for an enhanced prison sentence if the underlying crime was committed by a police officer in uniform, or endangered a large number of people, etc. (Both of those specific Blakely factors are arguably at play in this case.)

A defendant can either have their guilt and Blakely factors decided in a single, unitary proceeding, or can have guilt and Blakely factors decided in two bifurcated proceedings—also, the defendant can choose to argue Blakely factors either to a jury or directly to the court (as in a bench trial).

The State argued that they believed Potter had waived her right to a bifurcated proceeding and that therefore it was the State’s position that the Blakely evidence was being properly offered in this single, unitary proceeding.

The defense countered that they’d made no such waiver—and Judge Chu also noted that she herself had no recollection of any such waiver, despite the State’s rather frantic protestations to the contrary.  Certainly, there was no such waiver in the record.

This discussion ultimately concluded with Judge Chu having the defense create an explicit record that Potter wished a bifurcated proceeding, with the Blakely factors to be argued directly to the court in the event of a conviction on the underlying criminal charges.

Nevertheless, Judge Chu also concluded that she found no prejudice to the defense from the arguably Blakely factor evidence already admitted, which focused largely on the purported risk to the general public that Potter created when she Tasered Wright as he was behind the wheel of his Buick.  Judge Chu reasoned that such evidence could both serve Blakely purposes and also be grounds for finding recklessness, and she would allow it in this stage of the proceedings for that second purpose.


COMMANDER GARRETT FLESLAND: DIRECT EXAMINATION (CONTINUED)

After the morning break, Frank focused his ongoing direct of Flesland on the BCPD’s Taser policies, including how a Taser was to be worn on the duty belt.  This was extremely unnecessarily slow and plodding, particularly given that Potter’s method of carrying her Taser was entirely consistent with BCPD policy.

[Wonderfulspam]

COMMANDER GARRETT FLESLAND: CROSS-EXAMINATION

As has become the pattern of this trial, the defense cross-examination of this State’s witness was both much quicker than that of the State’s direct—less than 30 minutes for cross, in contrast to about two hours for direct—but also far more productive for the defense than direct had been for the State.

Had Potter ever missed any training sessions?  Not that Flesland knew of.

Did she take her training seriously?  Yes.

Can training ever fully replicate real-world conditions? No.

Was potter a trained hostage negotiator?  Yes.  Did she volunteer for DART, the domestic abuse response team?  Yes. Had she been a casket carrier for LEMA, the law enforcement memorial association?  Yes.  Had she been voted union president by her fellow officers?  yes.

Had Potter ever violated any policy of BCPD?  Yes—24 or so years prior she had two separate vehicle accidents.

Would it be right for an officer to stop a person from fleeing, once they were stopped and outside their vehicle, without a license, without identification, with a woman in the car who might be the subject of a restraining order against that person?  Yes.

Was Officer Lucky reprimanded in any way for his conduct with respect to Wright on April 11, 2021?  No.  What about Sergeant Johnson?  No.

Can it be reasonable to use deadly force if a fellow officer is partly inside a vehicle that’s trying to take off, where the officer would be dragged down the road?  Yes.

Are traffic stops very dangerous?  Yes.  Even more so if you learn the person stopped has an arrest warrant for a gun possession offense?  Commander Flesland answered that he would be extremely concerned if I was arresting someone with a weapons violation.

Can you use force to effect a suspect on an arrest on a warrant, and use force to stop that person from fleeing?  Yes.  And if he keeps fighting after warning him he’d be Tased, and a fellow officer was laying over a passenger fighting to prevent the flight of the suspect in his vehicle, be right to use deadly force to save that officer?  Yes.

And then the kill shot:

Gray asked Commander Flesland how he would describe Potter as a police officer, based on the 20 years he had worked with her?  The response:  She’s a good cop, a good person, and I had no concerns about going on calls with her.

As I live-commented in real-time:  BOOM.

All of that in less than 30 minutes of cross-examination.


COMMANDER GARRETT FLESLAND: RE-DIRECT

ADA Frank asked the court for 5 minutes to do a brief re-direct of Flesland, which re-direct took more like 10 minutes (albeit, including a brief sidebar).  The direct came across as largely flailing and ineffective.

Have you seen all the evidence from this event?  No. You were answering Gray’s hypotheticals based on his proposed facts?  Yes.  Training tries to be as realistic as possible?  Yes. And finally:  You expect officers to make good decisions?  Yes.

That last question, however, would turn out to have merely opened the door for Gray to deliver yet another kill shot to the State’s direct testimony.

COMMANDER GARRETT FLESLAND: RE-CROSS

In a two-sentence re-cross-examination of Flesland, Gray simply asked the Commander:

Did you say you expect good officers to make good decisions?  Yes.

And you describe Kim Potter as a good officer?  Yes.


SERGEANT MIKE PETERSON BCPD USE-OF-FORCE TRAINER

The next State’s witness was Sergeant Mike Peterson, the BCPD’s Use-of-Force Trainer, in effect the State’s use-of-force expert witness.  ADA Matthew Frank began his direct examination of Peterson right after the lunch break and would wrap up direct only at about 4:20 pm local time.

Worse, the questioning was again plodding and disjointed, and without apparent purpose given the testimony produced.

Most of this testimony was on the training Potter had received on the use of various models of Tasers she had been assigned over the years.  She was apparently compliant with all training sessions.

Perhaps the most notable part of this testimony was that the “policy requirements” of Taser usage were almost entirely conditional and contingent on the totality of the circumstances, such that there was nothing about Potter’s conduct that could be said to clearly violate any of these policies.

The State had previously evinced testimony that Potter had failed to “spark test” her Taser at the start of each duty shift, doing so on only 6 of the 10 duty shifts that preceded her April 11 shooting of Wright.

The actual policy on “spark testing,” however, merely suggests the test be performed with that frequency, it does not mandate such frequent testing.

Similarly, the State had previously suggested that BCPD had a policy against using a Taser on someone operating a vehicle, on the grounds that doing so can lead to the vehicle becoming an uncontrolled missile that endangers innocent bystanders.  Of course, the defense argues that Wright’s vehicle was not in motion when Potter sought to use her Taser on him (mistakenly using her Glock, instead), but the State clearly wishes to characterize this decision as precisely creating such a danger to bystanders and thus qualifying as recklessness needed for manslaughter.

The actual policy, however, does not absolutely prohibit the use of a Taser on a suspect operating a motor vehicle, and in fact, permits such use where other means to control the suspect have proven ineffective—precisely as had happened with Duante Wright in this case.

Similarly, the State had made much of the notion that the Taser was properly targeted at the back of a suspect, or below the waist if at the front of the suspect.  The actual policy, however, merely characterizes these as preferred target areas that should be prioritized if circumstances allow.

As this interminable testimony of Peterson continued it became increasingly clear that Peterson was hostile to the State and favorably disposed to Potter.

The court day ended with Frank’s conclusion of his direct examination of Peterson, but I expect cross-examination of the Sergeant to be extremely productive for the defense when the court comes back into session tomorrow morning.

https://legalinsurrection.com/2021/12/daunte-wright-shooting-trial-day-5-states-police-use-of-force-witness-helps-defense-shes-a-good-cop/

[Wonderfulspam]

Kim Potter Trial- Day 6

https://www.youtube.com/watch?v=VK8hrAw74Bo

Use of Force Expert was on today.

First really bad day for Potter's defence, prosecution is expected to rest very soon.

She's going to be shredded when she takes the stand, but the defence have no choice but to put her up.

They have little other than character witnesses to call.

[Wonderfulspam]

Day 6 Summary

https://www.youtube.com/watch?v=HIlbiKqNgG4


Daunte Wright Shooting Trial Day 6: State’s Expert Say No Force Should Have Been Used

Defense scores points with police department use of force trainer, but prosecution’s hired expert claimed police should have just let Daunte Wright drive away his car and found him later.


Today was the sixth day of the trial proper and was most notable for a powerful cross-examination of use-of-force trainer Sergeant Mike Peterson by Attorney Paul Engh, and for the full testimony of the State’s use-of-force expert witness Prof. Seth Stoughton (who some of you will recall testified for these same prosecutors in the Derek Chauvin trial)—unfortunately, Attorney Earl Gray did a poorer than expected job of cross-examination of this State’s witness.

It also seems likely that the State will rest its case in chief tomorrow, and that the defense will begin to call their own witnesses and present their narrative to the jury for the first time in this trial.

SERGEANT MIKE PETERSON, USE-OF-FORCE TRAINER: CROSS-EXAMINATION


The cross-examination of Sergeant Mike Peterson, the Brooklyn Center Police Department’s use-of-force trainer, was conducted by Attorney Paul Engh.  Peterson had provided his direct testimony in a lengthy—perhaps a couple of hours—questioning by ADA Matthew Frank yesterday afternoon.  That direct questioning had been a bit like pulling teeth, with Frank asking explicitly leading question and Peterson largely limited to answering yes or no.

I expected the defense to do great work on their cross-examination of Peterson, who was clearly favorably disposed towards defendant Potter, and I was not mistaken in this expectation.

Engh had Peterson affirm that police officers have dangerous jobs, deal with dangerous and unpredictable people, and have to make life-and-death decisions in split seconds.

Officers have to respond to rapidly changing events and make decisions quickly, and they are provided with the discretion to do so.

Peterson affirmed that Potter was an attentive student, who attended all her training, and that as an FTO she had many more duties than would an officer just working alone.

The jury was reminded that Potter’s Taser 7 was new to her, received only a couple of weeks prior to her encounter with Wright, and differed in certain characteristics from her prior model Taser—most particularly in having far more black surfaces and fewer yellow surfaces than her prior Taser.

On a couple of occasions, Engh asked about Potter’s “gun” when he clearly actually meant “Taser,” quickly correcting himself, but the subtle “mistake” emphasized the mental possibility for confusing the two weapons.
Also emphasized was that even scenario-based training couldn’t really replicate an actual confrontation in the street, as you knew role players were not armed with real weapons and were not really trying to kill or maim you. Further, the scenario-based training around the period Potter had received her new Taser 7 had been substantially limited because of COVID constraints.

Engh also had Peterson agree that the “spark test” that Potter had conducted on six of her 10 duty shifts prior to her encounter with Wright were merely recommended to be done on an every-shift basis, and not required—nobody monitored if they were done, and no officer was reprimanded for failing to perform them on an every-shift basis.

Engh similarly made clear that pretty much all the other policies around Taser use were conditional on the totality of the circumstances, and were subject to officer discretion and competing interests.  They were generally all of the “don’t do THIS … UNLESS you have a GOOD reason” guidelines.

It was also pointed out that Taser had everyone undergoing or providing training to sign releases that freed the company of liability for any accidental injuries that might occur—and that this was because accidents with Tasers can and do occur, despite best efforts to avoid them.

Peterson agreed that a suspect fleeing lawful arrest in a vehicle is a dangerous act, and puts the drive, the officer, and the public at risk of death or serious bodily injury.

Peterson also agreed that officers were trained to make decisions because failure to make a decision could also result in death or serious bodily injury—and that it was important to make a decision, even if that decision later turned out to be wrong.

Making a traffic stop is one of the most dangerous things an officer does, Peterson agreed, especially of someone with a warrant for a gun charge. Officers can’t simply let that person go.

Further, there’s a community interest in securing public safety by ensuring that unlicensed people aren’t driving, that uninsured people aren’t driving, that unregistered vehicles aren’t being driven around.  Similarly for someone on whom there is an open arrest warrant for a gun charge being arrested, and for enforcing orders of protection.

Tasers were frequently used as tools for de-escalation, to convince suspects to comply with lawful orders, for the greater safety of everyone involved—and compliance was always what officers desired, rather than having to use escalating force.

You may recall that Judge Chu had early in the trial ordered that Graham factors not be explicitly referenced during the trial, but here Engh managed to sneak them into his questions in the context of asking about Minnesota’s statutes on use of force and use of deadly force.

Peterson agreed that police officers, no matter how well trained, were human beings, imperfect, and made mistakes.

Finally, Peterson agreed that Potter had a reputation for being both peaceful and law-abiding.

In total, cross-examination of Peterson took less than 40 minutes, in contrast with the prior day’s direct questioning of him, which took more than two full interminable hours.

SERGEANT MIKE PETERSON, USE-OF-FORCE TRAINER: RE-DIRECT

ADA Matthew Frank followed cross with about 25 minutes of re-direct.

As so often has been the case with the State in general, and Frank in particular, re-direct came across as flailing and disjointed, and a rather emotive response to the damage inflicted on the State’s witness by defense cross-examination.  Also, Frank improperly asked almost nothing but leading questions, apparently fearful of what open-ended responses would yield to the jury.

Frank mocked the notion that someone driving without a license or insurance was somehow inherently dangerous, but Peterson affirmed that in his experience people without a license and insurance also don’t tend to follow the rules of the road all that well generally. [fixed]

Frank tried to get Peterson to agree that it was inherently improper to Taser someone inside a vehicle, but Peterson corrected him to say this applied only in the context of a vehicle in motion, and that he himself had Tasered people inside a vehicle.  Then Frank tied to suggest that someone who might shortly put a vehicle in motion was the same degree of risk as someone who already had a vehicle in motion, and Peterson responded that he supposed it depends on the nature of the force used.

Frank suggested that Potter, Luckey, and Frank Johnson didn’t actually have to arrest Wright, they could simply have let him go, that if a reasonable officer decides he can’t safely make an arrest he can use his discretion to not to so, and Peterson responded that was one of many factors for an arresting officer to consider.

These, and pretty much every other answer the State got out of Peterson on re-direct was of the “well, it depends” variety—and that’s not really all that helpful when the State ultimately has the burden of proving guilt beyond a reasonable doubt. Indeed, “it depends” is pretty much a synonym for “reasonable doubt.”


SERGEANT MIKE PETERSON, USE-OF-FORCE TRAINER: RE-CROSS

Engh then got Peterson back on a brief, roughly 5-minute, re-cross examination.

Engh mentioned that Peterson had been asked by Frank if a good officer was expected to do a spark test each duty day, and Peterson had responded yes—but isn’t it also true that good officers also sometimes miss spark tests, and Peterson agreed that was also the case.

In evaluating whether someone is a good officer, Engh asked, you don’t merely look at their spark test record, you look at the entire body of their police career?  Peterson again agreed.

Engh also had Peterson agree that the reason officers distinguish their use-of-force analysis between a car in motion and a car not in motion is that a car in motion is unambiguously so, but a car not in motion is much more subject to the officer’s discretion.

SERGEANT MIKE PETERSON, USE-OF-FORCE TRAINER: RE-RE-DIRECT

ADA Frank then came back for a brief, less than four-minute, re-re-direct of Peterson.

Aren’t officers trained that it’s dangerous for them to insert their bodies into a suspect’s car as Officer Johnson had, he asked, precisely because they could be dragged?  Well, no, answered Peterson, we don’t train on that explicitly, it again “depends.”

Frank as apparently attempting to argue that somehow Johnson’s purportedly poor judgment in putting his body inside Wright’s vehicle somehow made Potter’s use of force unlawful, which is an interesting theory of the case.

SERGEANT MIKE PETERSON, USE-OF-FORCE TRAINER: RE-RE-CROSS

Finally, Engh then got Peterson back on a 30-second re-re-cross examination.

During any traffic stop or other law enforcement incident, officers are trained and expected to assist and help each other.

Correct, answered Peterson.

And that was it for Sergeant Peterson.

[Wonderfulspam]

PROFESSOR SETH STOUGHTON, USE-OF-FORCE EXPERT: DIRECT

The State’s next witness was Professor Seth Stoughton, a law professor who has become something of an anti-police use-of-force expert witness “gun for hire.”  You may recall Prof. Stoughton from his retention as an expert witness by these same prosecutors in the Derek Chauvin trial.  His direct questioning was conducted again by ADA Matthew Frank.

I won’t detail Stoughton’s more than two hours of direct testimony for the State, except to note that the State appears to have gotten what it paid for (about $10,000, in total)—in Stoughton’s expert opinion there was absolutely no manner of use of force, either deadly force or non-deadly force, that was or could have been lawfully or appropriately used upon Duante Wright by Kimberly Potter, regardless of whether her fellow officers were inside or outside of Wright’s vehicle when she fired her unintended gunshot, or whether Wright’s car was stopped in park or in motion at the time she fired.

I will note that there were several objections and at least one sidebar objecting to Stoughton attempting to definitively determine what Kim Potter’s subjective state of mind was during the encounter with Wright.  This is impermissible as Stoughton can’t read Potter’s mind.  It is permissible to note what facts a reasonable officer might consider in dealing with Wright, and point out the presence or absence of such facts, but that’s it.

To my eye and ear Stoughton once again came across as smarmy and fake but, of course, it’s unlikely the jurors have my prior experience with Stoughton in particular or gun-for-hire expert witnesses in general.

Stoughton did ultimately suggest that a reasonable officer in Potter’s position could have simply allowed Wright to flee the scene in his vehicle, along with his passenger—that would have been the conduct of a reasonable officer. After all, Wright could simply be picked up at a later date, given that the officers already knew his identity.

STOUGHTON SIDEBAR

This opinion would lead to a lengthy sidebar at the end of direct questioning, out of the hearing of the jury, in which the defense argued that it had opened the door to Wright’s many prior instances of fleeing from arrest and failing to appear at court dates—indeed, the warrant issued on the gun charge was a bench warrant for a failure to appear in court.

The defense now wanted to admit into evidence what they described as an inch-thick record of Wright previously fleeing arrest and failing to make court dates. Normally such would be excluded as character evidence.  But the defense argued that the State’s expert had given the jury the false impression that it would be a small matter to simply let Wright flee and just arrest him later—when the actual facts were that Wright would simply flee every time officers sought to arrest him.

Indeed, Attorney Paul Engh promised to file a motion for a mistrial if Judge Chu refused to allow him to submit this record into evidence, pounding on the table as he did so.

Ultimately, the court decided this record of flight and failed appearances continued to be character evidence and declined the defense the ability to introduce it as evidence.  We’ll have to see, I suppose, if Engh follows through with his motion for mistrial—a mistrial that would obviously be denied by the judge who had just declined to admit the evidence in question.

PROFESSOR STOUGHTON, USE-OF-FORCE EXPERT: CROSS-EXAMINATION

The roughly one-hour cross-examination of Prof. Stoughton by Attorney Earl Gray was substantially weaker and more meandering than I had expected it would be—Gray has consistently delivered a very strong performance on cross-examination for the defense.

Gray started off by asking Stoughton to confirm that he’d suggested that what a reasonable officer should have done was simply allow Wright to flee—and Stoughton flatly denied having said anything of the sort.

Frankly, Gray dropped the ball here.  Stoughton is the kind of expert witness who, if you paraphrase his statement with one single word differing from the actual statement, will flatly deny having made the statement—meaning, the paraphrased statement, even if it is substantively identical to the actual statement.  Gray’s paraphrase was not a precise quote, so Stoughton denied the statement.  For some reason, Gray seemed unable to trap him in this slippery conduct.

That said, certainly the jury heard Stoughton’s original statement that allowing Wright to simply flee would have been the decision of a reasonable officer, while no amount of force by Potter under any of the disputed circumstances here could be lawful or appropriate, and hopefully, they took note of Stoughton’s less than honest denial.

Gray also reasonably mocked Stoughton’s claim to being a former law enforcement officer. While technically true, it appears that Stoughton’s less-than five-year career was mostly spent as either a trainee or doing paperwork, without serious street time or experiences.  Even that minimal experience was 15 years in the past. Gray also exposed that even during his brief police career Stoughton had failed to attend assigned use-of-force training, and had never himself been a use-of-force trainer.

Throughout all of this Stoughton again came across to my eyes and ears as less than honest, refusing to answer direct questions with a simple yes or no answer—as should be done on cross-examination—and instead providing lengthy replies that appeared intended to deceive and mislead rather than inform.

For example, when Gray asked if Stoughton had ever been a use-of-force trainer, Stoughton did not honestly answer that he had not—he answered, instead, that he had use-of-force certifications.  All this meant is that he’d been as a student in some classes.  When Gray asked again, Stoughton now replied that he’d once written some use-of-force policies.  When Gray asked a third time, Stoughton replied that he’d written some reports on use-of-force events.

This kind of shady evasiveness was constant throughout Stoughton’s testimony. How much of it the jury recognized is unknown to me.

Cleverly, Gray asked Stoughton about his retainer contract on this case and asked if it was correct that Stoughton stood to make up to a maximum of $50,000 on this case. Stoughton once again answered evasively—so Gray whipped out the contract, and had Stoughton read that portion aloud.  In fact, Stoughton stood to make up to a maximum of $95,000 consulting on this case.

Now, in fact, Stoughton will probably make about $10,000 on this case, but that extravagant $95,000 figure is sure to stick in the juries heard.

There was, however, a lot of value that I felt Gray left on the table during this cross-examination.  For example, Stoughton had spent about 30 hours arriving at conclusions on a use-of-force event in which Kim Potter had mere seconds to make a life-or-death decision.  Also, Stoughton was not fighting a violently resisting suspect while doing his analysis.

Further, Stoughton had the benefit of multiple synchronized videos, and some kind of laser-mediate model of the events and, obviously, Potter had none of that on the scene.

Further, what Potter’s body camera would show under these circumstances was substantially different than what Potter’s eyes, with their wider field of view and ability to rapidly scan around, were likely to have seen.

Further, the screen captures used by Stoughton in his direct testimony at precise time points did not accurately represent the rapidly evolving, dynamic, violent, and dangerous environment in which Potter was making her human decisions.

Some were just half-missed opportunities—for example, Gray pointed out that the new Taser model Potter had received just a few days before her encounter with Wright had far more black and far less yellow than had her previous model of Taser.  And that’s true—but Gray failed to use the actual models of Taser as demonstrative exhibits to show convincingly how much this was the case.

Around the end of cross-examination, Gray did compel Stoughton to concede that of the roughly 30 use-of-force cases on which he had consulted, more than 25 of them were cases in which he’d served a plaintiff suing a police officer in state or Federal court—the clear implication being that Stoughton is an anti-police expert witness gun-for-hire, rather than a genuinely impartial expert.

ARBERY WRIGHT, FATHER OF DUANTE WRIGHT: DIRECT

The final witness of the day was Arbery Wright, father of Duante Wright.  He essentially testified that his son was a good boy.  The defense did not object during this direct testimony, but only because they had a standing objection before the court at the start. There was no cross-examination of this witness.


END-OF-DAY MOTIONS

As court wrapped up for the day it became clear that the State would be resting its case in chief tomorrow, either immediately upon court coming into session in the morning or perhaps after one or two more brief witnesses.

In preparing to hand the proceedings over to the defense, however, the State had several motions and matters they wanted the court to resolve, two of which are particularly notable.

First, they noted that the defense witness list had perhaps as many as a dozen character witnesses for Kim Potter, and they objected to that number as unnecessarily cumulative—which is quite a laugh considering how much cumulative evidence the State itself had presented in its case in chief.  Nevertheless, the defense agreed to call no more than three character witnesses.

Second, the State noted that it appeared that the defense was planning to have its own use-of-force expert speak to matters of deadly force, which the State found objectionable because there was nothing about deadly force in that expert’s report shared with the State.  The State thus claimed inadequate notice and wanted the defense use-of-force expert prohibited from discussing matters of deadly force entirely.

The defense response was that their expert was privileged to respond to the testimony of the State’s own experts and other witnesses made during the course of the trial, of which the defense could not be fully aware until that testimony was heard.  Given that this testimony had covered deadly force matters, the defense expert was therefore privileged to respond to that testimony on deadly force matters.

Judge Chu was in the moment undecided on the issue and took it under advisement.

Frankly, if it’s true that the defense expert had failed to address deadly force in his own earlier analysis, that seems a rather grave shortcoming that should not have been permitted by the defense—a serious own-goal by the defense team.


https://legalinsurrection.com/2021/12/daunte-wright-shooting-trial-day-6-states-expert-say-no-force-should-have-been-used/

[Wonderfulspam]

Kim Potter Trial- Day 7 Live

https://www.youtube.com/watch?v=tIcNd7bYbnY

[Wonderfulspam]

Daunte Wright Shooting Trial Day 7: Defense Use-of-Force Expert Impresses

Summary

https://www.youtube.com/watch?v=eYAJTLTJlqs


Daunte Wright Shooting Trial Day 7: Defense Experts Testify Use Of Gun, Not Just Taser, Justified – Potter to Testify Friday

Late twist in the case, defense asserts that even if Kim Potter intentionally used her gun, rather than by mistake, it would have been justified to save a fellow police officer partially leaning into the car who would have been seriously injured or killed had Daunte Wright driven off.

Today was the seventh day of the trial proper, and a very good day for the defense, indeed, with the arguable exception that the defense’s predictable motion for acquittal was as predictably denied by the court.

Next, we had testimony from the defense’s excellent use-of-force expert, also from Potter’s former police chief, and finally from four character witnesses.

With testimony completed for the day, the defense created a record outside the hearing of the jury of many of Duante Wright’s bad acts, evidence that the judge had declined to admit into evidence on character grounds.

Finally, the judge noted she’d be finalizing jury instruction this evening—and, importantly, these would include an instruction on the authorized use of non-deadly force.

It is noteworthy that the defense has only two more witnesses it intends to call—its “slip and capture” expert Dr. Laurence Miller, and the defendant Kim Potter herself.  As a result, testimony in this trial should be completed relatively early in the day tomorrow.   After that all that is left are the instruction of the jury, closing arguments, and finally jury deliberations and the delivery of a verdict.


OVERVIEW

The day began with the defense beginning with a motion of acquittal on the grounds that no reasonable jury could return a verdict of guilt based on the State’s rather incoherent case in chief.  This motion for acquittal was, unsurprisingly, rather summarily denied by Judge Chu—such motions are routinely made at this stage of a trial, and as routinely denied.

Then the State promptly rested, and the defense finally began its case in chief.

The defense led off with its first witness, the extremely capable and impressive defense use-of-force expert Stephen Ijames, who provided powerfully favorable opinion testimony for the defense.
Next up was more very favorable testimony from former Police Chief Gannon, who had been forced to resign along with Potter following the Wright shooting and the nights of riots that followed.

The day wrapped up with four relatively quick witnesses who were largely or entirely character witnesses for the defense:  former fellow officer Colleen Friecke, neighborhood friend Hall, former Potter supervising sergeant Roth, and former fellow officer Smith.

It shouldn’t matter—this is just the world we live in today—but both Hall and Smith appear to be men of color, which shows good judgment by the defense in terms of possible perception by the jury. That said, although this case was presented as “white cop shoots young black man” in the media, not a word about race was said in the course of the trial itself.

With testimony completed for the day, the defense created a record outside the hearing of the jury of many of Duante Wright’s bad acts, evidence that the judge had declined to admit into evidence on character grounds.


Finally, the judge noted she’d be finalizing jury instruction this evening—importantly, Judge Chu also informed the parties that she planned to add an instruction on the authorized use of non-deadly force to supplement to already agreed to parallel instruction on authorized use of deadly force.


DEFENSE MOTION FOR A MISTRIAL DENIED, & MORE

The day’s proceedings began with the defense motion for a judgment of acquittal on the grounds that no reasonable jury could return a verdict of guilt based on the State’s rather incoherent theory of the case.

At times the State has argued through its witness testimony that a Taser would have been appropriate (Officer Luckey), other times that it would have been inappropriate (expert witness Stoughton), sometimes that deadly force would have been appropriate (Sergeant Johnson), other times that it would have been in appropriate (Stoughton).

ADA Matthew Frank naturally argued against the motion, although in a rather disingenuous way.  Frank essentially argued the concept of recklessness as that term is used in plain English—that Potter’s unintentional use of a gun instead of a Taser was simply reckless conduct.

But that’s not what recklessness means as a legal term of art.  What Frank describes is properly understood as a mere mistake. Recklessness requires intentionally creating a deadly force risk and ignoring that risk—there’s no evidence here that Potter intended to create a deadly force risk.

Remarkably, Judge Chu herself observed that there aren’t really any meaningful factual disputes in this case—and I would largely agree. Of course, in that case, there would be seem to be no need of a jury at all, as the jury’s role is to settle factual disputes.  If there are no facts in dispute, then this is purely a legal matter, and Judge Chu is supposed to be the finder of law.

In any case, Judge Chu denied the motion for acquittal, so the show was to go on.

More favorably for the defense, Judge Chu informed the parties that she would allow the defense use-of-force expert to testify to deadly force issues, a matter that was still uncertain at the end of court yesterday.  This despite ADA Frank insisting on spending a chunk of the morning attempting to re-argue the issue.

Less favorably for the defense, Judge Chu declined the defense to put into evidence additional details about the recent felony drug conviction of Duante Wright’s mother, who had testified on the first day of the trial.


STEPHEN BRADFORD IJAMES, DEFENSE USE-OF-FORCE EXPERT: DIRECT EXAMINATION

The first defense witness of the trial was Stephen Ijames, a use-of-force expert, and recently retired law enforcement officer of 44 years experience.  As is typically done with expert witnesses, the defense first had Ijames recite his qualifications as an expert.  Direct examination of Ijames was conducted by Attorney Paul Engh.

To say that Ijames had an impressive resume would perhaps be the understatement of the year—except that it would be an even greater understatement to say that the qualifications of Ijames completely eclipsed those of the State’s expert, Professor Seth Stoughton, who testified yesterday.

Besides being an LEO for some 44 years, working his way from patrolman to Chief of his department, Ijames was also a graduate of the FBI National Academy, and the equivalent DEA academy, and had been commissioned as a US Marshal in various task forces over his career.

Ijames spent many years as a full-time SWAT officer kicking in doors and serving felony warrants.  He was awarded a law enforcement “silver star” award for successfully saving a hostage being held in a liquor store robbery gone bad—a rescue that required him to shoot and kill the hostage-taker.

As recently as two months ago, Ijames had still been driving a marked police car for a park service and was now testifying in court after driving from Missouri to Minnesota in his own car, through storms and fire, at his own expense, without any payment by the defense—and only a week after having had open-heart surgery.

I kid you not.

Unlike State expert Stoughton, whose own law enforcement career was brief and mostly serving at a desk, some 15 years in the past, and had never involved a critical incident, Ijames had personally engaged in literally hundreds upon hundreds of critical incidents.

But it doesn’t stop there.  Ijames had also travelled not just around the United States training other police departments, but also to dozens of countries around the world to train their police departments, often under the mandate of the US Department of Justice.  He’d literally trained thousands of other officers in use-of-force.

Further, in the 1990s Ijames was also among the earliest classes of instructors for the then-new Taser device, and he literally wrote the national policies on the use of the Taser.

Ijames also had impressive academic credentials, including not only his own BA and MA degrees, but full-time and adjunct teaching positions at the university level. He indicated he’d published hundreds of scholarly papers.

And if that wasn’t enough, when the State sought to impeach his credentials early in their cross-examination of Ijames, it turns out that he spends his free time saving orphans in Haiti.

Orphans. In Haiti.

The contrast of this straightforward and impressive man with the smarmy and effete Stoughton could not have been more stark.

The bottom line of Ijames’ testimony was, as one would expect, the opposite of the conclusions of Stoughton. Where Stoughton had essentially testified that neither deadly nor non-deadly force by Potter could be considered appropriate, Ijames testified that either deadly or non-deadly force would have been legally justified and within reasonable police conduct in this case.

To understand how powerfully this exchange favors the defense, however, one would really need to observe and contrast the actual testimony of Stoughton yesterday and Ijames today.


STEPHEN BRADFORD IJAMES, DEFENSE USE-OF-FORCE EXPERT: RE-DIRECT EXAMINATION

The defense did come back with a very brief, less than five minute, re-direct of Ijames.  One matter the State had focused on in cross is that Ijames had made relatively little use of the “magic words” of “objective reasonable officer,” mentioning it only once or so before moving on to speaking in plain English.  Here the defense had him use the magic words explicitly, so the jury would know for certain he knew them and had testified to them.

Here Engh also snuck in a question about the danger to the officers if Wright had put the car in reverse—the objection was sustained, and Ijames had not answered the question, but the jury had certainly heard it.  (Engh would circle back to this question with the next witness, former Chief Gannon.)

[Wonderfulspam]

TIMOTHY PATRICK GANNON, FORMER CHIEF, BCPD: DIRECT EXAMINATION

Next up for the defense was former Police Chief of the Brooklyn Center Police Department, Timothy Gannon. Gannon was compelled to resign along with Potter two days after the shooting of Duante Wright.  Direct of Gannon was conducted by Attorney Earl Gray.

He described that the political leadership of the city informed him that he could either resign and keep his retirement or be fired and lose them, both because of his failure to immediately fire Potter without administrative review of her conduct as well as his handling of the first two days of riots that followed the Wright shooting.

Gannons’ career was mostly a life in law enforcement, from patrolman to apparently every level of the BCPD, including multiple rounds at each Commander station, before becoming Chief in 2015.  He had also served in combat areas as a military policeman in the Marine Corps. prior to first becoming a patrolman in 1994.

Gannon described Potter as a fine officer, in all aspects of the job, and one who went above and beyond with her volunteer activity for the DART domestic abuse task force, the LEMA assistance to family of fallen officers, the hostage negotiation team, and more.

With respect to his review of her use of force on April 11 against Wright, he described it as within department policy, and as a simple mistake.  Either a Taser or a gun would have been an appropriate use of force under the circumstances presented to the officers by Wright.

Gannon also recounted that he himself had once been dragged by a car driven by a suspect fleeing from his efforts to arrest him, and the terror of the experience.

Gannon delivered direct testimony very favorable to the defense, and did so in a concise 20 minutes.

TIMOTHY PATRICK GANNON, FORMER CHIEF, BCPD: CROSS-EXAMINATION

Cross-examination of Gannon was again conducted by ADA Matthew Frank, who as usual took more time to question the witness than had the defense, and got a great deal less out of the effort.

Frank’s only substantive criticism of Gannon appeared to be that his opinion on Potter’s use of force was not well-informed because it was based on only her own body camera video, which he had viewed the day of the event, and the dash camera video of Officer Luckey’s squad car, which Gannon had seen only the week prior to his testimony.

Gannon’s response was essentially that the very reason he’d not immediately fired Potter after the event was precisely because not all the evidence had yet come in.

When asked, Gannon affirmed that he liked and respected Potter, which Frank naturally used to suggest his testimony was biased.

Bottom line, the cross of Gannon was 28 minutes of not much to write home about:

TIMOTHY PATRICK GANNON, FORMER CHIEF, BCPD: RE-DIRECT/RE-CROSS

Re-direct of Gannon by Earl consisted of only a single question:   Would you lie under oath to help a friend?

Gannon’s reply:  There’s a reason I’m an ex-Chief—nobody can make me do anything.

Boom.

Then Frank had a single-question re-cross, asking Gannon if he was merely offering his opinion, and Gannon confirmed he was.

FOUR CHARACTER WITNESSES

The defense then offered four character witnesses, although one, Officer Friecke, had some modest first-hand knowledge of the events following the Wright shooting.  All said that Potter had a well-established reputation for being law-abiding and for peacefulness. Notably, two of these witnesses—Hall and Smith—were black men.

Perhaps the most remarkable aspect of the testimony of these four witnesses was that the State chose the off-putting ADA Joshua Larson to conduct their cross-examination.  Larson was thoroughly hostile, especially to the nearly weeping Office Friecke, a woman, and took entirely the wrong tone.  Why the State did not have ADA Erin Eldridge at least cross-examine Friecke is beyond me.

In any case, not much substantive to write about the testimony of these witnesses, so I’ll simply present it in summary fashion.

DEFENSE CREATES RECORD OF DUANTE WRIGHT MISCONDUCT

With testimony completed for the day the defense created a record, outside the hearing of the jury of many of Duante Wright’s bad acts, evidence that the judge had declined to admit into evidence on character grounds.

JUDGE CHU TO INCLUDE NON-DEADLY INSTRUCTION

Finally, the judge noted she’d be finalizing jury instruction this evening—importantly, Judge Chu also informed the parties that she planned to add an instruction on the authorized use of non-deadly force to supplement to already agreed to parallel instruction on authorized use of deadly force.

Although the State reserved the right to object to this new instruction until they’d see a draft, the addition of the non-deadly instruction would be very favorable to the defense.  In effect, it would provide a path for the jury to an acquittal if they believed that non-deadly force was authorized and that unintentional use of deadly force was simply a mistake or mere negligence.

https://legalinsurrection.com/2021/12/daunte-wright-shooting-trial-day-7-defense-expert-forcefully-backs-potter/

[Wonderfulspam]

Psychologist Dr. Laurence Miller will be testifying in defense today on the phenomenon of Weapon Confusion/Slip & Capture Errors.

Judge Regina Chu has permitted Dr Miller to explain the theory to the jury, but not make comment on whether Kim Potter had experienced this during the incident.

Since 2001, there have been 16* incidents in the United States of police weapons confusion between a conducted energy weapon, such as a Taser, and a firearm. Four people, including Daunte Wright in Brooklyn Center, Minnesota, were killed *(another study suggests as many as 18)

..................

List of some known instances

2001   Steven Yount   
2002   Everado Torres*   
2002   Christopher Atak
2003   Frederick Henry
2004   Theodore Wright
2006   Unknown   (Bremerton, WA)
2008   Michael McCarty
2009   Oscar Grant*
2014   Eric Butts
2015   Eric Harris*
2017   Jamel Jackson
2018   Ryan Smith
2018   Akira Lewis
2019   Brian Riling
2019   Ashley Hall
2021   Daunte Wright*

*(Fatal)
.....................

Of the four fatal instances of taser confusion, two were accidently shot by men, two by women.

https://eu.usatoday.com/story/news/investigations/2021/04/13/taser-confusion-errors-like-daunte-wright-shooting-rare-but-avoidable/7210538002/

[Wonderfulspam]

Patient Safety Tip of the Week, Taser “Slip and Capture Error” Again!

April 20, 2021

In the midst of a trial of a police officer in the death of an unarmed African-American man in Minneapolis, 10 miles away there was another incident in which a young African-American man was fatally shot by a police officer during a traffic stop. In the latter incident, the police officer apparently intended to use a taser on the man but instead fired her gun, killing the man. “How could that happen?” you ask. It’s not the first time this has happened. In fact, it has happened multiple times. Our April 21, 2015 Patient Safety Tip of the Week “Slip and Capture Errors” noted at least 8 prior instances where police intending to use tasers, instead pulled out their guns and shot someone. It is the classic example of what is known as a “slip and capture” error.

The police stopped the man for a suspected traffic violation but found there was an outstanding arrest warrant on him. When he got back into his vehicle against the commands of the police officers, one officer aimed a weapon at him and shouted “Taser! Taser! Taser!” (Bogel-Burroughs 2021, Broaddus 2021, Navratil 2021). She fired one round, and the man groaned in pain. “Holy shit, I just shot him,” the officer can be heard shouting. The man drove off in the car but crashed a couple blocks away and was pronounced dead at the scene.

 
A nearly identical incident occurred in 2018 in Kansas (Robertson 2019). A police officer thought she had her Taser in her hand as she watched an unarmed man beating a fellow officer. What she fired, however, was her gun — by mistake. “Oh s---, I shot him,” she shouted. During legal proceedings, she explained her brain immediately went ‘you need to tase this guy, you got to tase, you got to tase him” and she shouted “Taser! Taser! Taser!” She fired what was in her hand, and the assaulter shouted in pain — which would have been normal when hit with a Taser. But the officer said she was stunned that she didn’t see the wires of a Taser gun strike. At this point she realized she had pulled her gun and shot the assaulter by mistake, instead of pulling her Taser. She exclaimed aloud, “Oh s---, I shot him.”

 
We wrote our April 21, 2015 Patient Safety Tip of the Week “Slip and Capture Errors” after a volunteer police deputy fatally shot a man, thinking he was firing his taser, not his gun (Yan 2015). In 2009 a very similar shooting occurred on the Oakland BART system when the officer fired his gun rather than the intended taser (Force Science Institute 2010). At that time, retired Capt. Greg Meyer noted there were at least 6 similar incidents prior to that 2009 shooting (Meyer 2010). So, when we did our 2015 column, there were at least 8 similar incidents where a police officer inadvertently shot someone, mistakenly thinking they were using a taser and not their gun. After the recent Minnesota shooting, media reports put the number of similar incidents as high as 18 (Elinson 2021). One article actually lists 16 of the prior incidents (Ciavaglia 2021).

 
Sure sounds like a system problem to us! It’s reminiscent of concentrated potassium chloride issues in healthcare in the past. Multiple incidents occurred disseminated both in time and location, so it took years for us to see a pattern and look for root causes and, ultimately, solutions.

 
So, this is a patient safety column, not a crime column. Why are we discussing this at all? We discuss it because these are instances of a human factors concept, the “slip and capture error”, and we need to understand why they occur because similar errors can occur in healthcare. We gave many examples in our April 21, 2015 Patient Safety Tip of the Week “Slip and Capture Errors” and such are well worth reiterating.

Basically, a capture error occurs when two potential actions share the same or similar initial sequences, but one action is relatively unfamiliar and the other is a well-known and well-practiced action (the latter often carried out almost automatically or subconsciously). In effect, under certain circumstances the well-practiced action sequence will “capture” the action.

 But the capture error is not a new concept. In fact, for years when we are teaching patient safety to medical students, residents, or other healthcare workers and tell them mistakes are inevitable we give them a classic example: “It’s Sunday morning. You intend to go to the grocery store. But you find yourself in your car on the route to your usual workplace/school, instead of the route to the grocery store.” (Usually about two thirds of the audience raises their hands when we ask if that has happened to any of them!) That happens to be a classic capture error. The more practiced activity “captured” the intended but less familiar activity.

Usually there are “enabling” factors that contribute to the occurrence of “capture” errors. These include stressful situations, emergencies, distractions or interruptions and others.

So, what are some healthcare examples of “capture” errors? A nurse or physician, confronted with a new version of a device (eg. ventilator, infusion pump, dialysis machine, etc.), programs in the sequence of keystrokes or dial manipulations he/she used on the old device even though he/she has been inserviced on the new device.

 

Another example might occur during CPOE. You almost always choose the first option from a drop-down list listing regimens for a certain anticonvulsant. Your software vendor updates the software and the drop-down list is now reordered. Still, you choose the first option and this time your patient gets the wrong drug or wrong dose.

 
A somewhat similar error may have occurred in the fatal NMBA incident we described in our Patient Safety Tips of the Week for December 11, 2018 “Another NMBA Accident” and February 12, 2019 “From Tragedy to Travesty of Justice”. In that case, a nurse was attempting to retrieve Versed from an automated dispensing cabinet (ADC). She recalled talking to an orientee about something unrelated while entering the first two letters “VE” into the ADC. The first medication on the list was chosen. The nurse did not recognize that the medication chosen was vecuronium, not Versed. The nurse looked at the back of the vial to see how to reconstitute the medication but did not recheck the name of the medication on the vial. Ultimately the fatal dose of the paralyzing agent vecuronium was administered to a patient.


 In our April 21, 2015 Patient Safety Tip of the Week “Slip and Capture Errors” we also noted an example where we might incorrectly choose an order set for order set for DKA (diabetic ketoacidosis), which gets used very often, rather than the intended order set for nonketotic hyperosmotic state, which is used much less frequently.

There is probably also some relationship or at least overlap of “capture” errors with another human factors concept: inattentional blindness (ISMP 2009). In the latter, which is really a sort of confirmation bias, we tend to see what we expect to see rather than what we actually see. This is often a contributing factor in incidents where medications are drawn up from the wrong vials.

Another interesting thought: technology may cause some “capture” errors. Autotext or automatic completion of phrases by a word processor or smart phone may lead to such errors. We’ve noted several times that every time we type “EHR” (for electronic health record), our word processor converts it to “HER” and we might miss that on proof-reading. Or our smart phone automatically inserts one email address when we really intended a different one. These examples really meet the definition of a “capture” error in that two actions start with the same sequence of steps and one that is far more familiar than the other (at least far more familiar to the computer!) takes over for the intended action. You can bet that there will be analogies with healthcare technologies.

Capture errors have long been described by human factors pioneers like James Reason and Don Norman. How about some everyday examples of “capture” errors?

James Reason, widely known as the father of human factors research, provides numerous examples (Reason 1990):

After a decision to reduce sugar consumption, someone finds himself sprinkling sugar on cornflakes the very next morning.

After food is moved to new refrigerator, someone finds himself opening the old refrigerator to look for food.

After moving to a new home, some starts a letter with previous home address.

Someone intends to stop at a store on the way home but drove past the store without stopping.

Someone wants to put milk in a cup but puts it back in the refrigerator before putting any in the cup.

Someone takes off their socks when they only meant to take off their shoes.
 
Don Norman (see our November 6, 2007 Patient Safety Tip of the Week “Don Norman Does It Again!”) in his two great books on human factors and design of things (Norman 1988, Norman 2009) has some great examples:

A person who frequently plays cards is counting pages at a copy machine and counts 1-2-3-4-5-6-7-8-9-10-J-Q-K-A!
A person playing a song on an instrument finds himself switching to a more familiar song.
A person goes to the bedroom to change for dinner and finds himself going to bed.
Someone finishes typing his thoughts on the word processor and turns it off without saving.
 
Did you ever rent a car on a trip and turn on the windshield wipers instead of the lights because the control knobs were reversed from the car you usually drive?

In fact, the classic predictable error of using the previous year when you write a check in January of a new year is often referred to a “slip” but is probably also really a “capture” error.

In the taser/gun incidents, use of the taser is the relatively unfamiliar action and use of the gun is the more familiar and well-practiced action. Even if the officer has never fired his/her gun on duty, they all spend considerable time on the shooting range so have practiced use of the gun frequently. But we suspect most have practiced using the taser much less frequently and probably never practiced under stressful conditions.

 
As Don Norman would tell us, design of systems significantly impacts on how humans use those systems. Design of the taser and its holster likely contributed to each of the incidents. In many of the previous taser/gun mistakes the taser had apparently been drawn by the “strong” (dominant) hand, though the location of the taser holster was variable (Meyer 2010). One of the recommendations made by the Forensic Science Institute after the BART case was use “weak-side, weak-hand-draw” taser holsters to minimize the chance of unintentionally drawing one’s gun rather than the taser. It’s not known how the officer in the current Minnesota incident was wearing her weapons and holsters at the time of the shooting. Apparently, the policy was that the tasers were to be holstered on the nondominant side. But, even then, there is a problem. The video of the incident shows another officer wearing the taser holster on the nondominant side but the butt of the taser was positioned such that the officer could easily “cross-draw” the taser with his dominant hand (Hubler 2021). An article in USA Today (Loehrke 2021) has a good graphic showing not only holstering but also all the other equipment police officers typically carry on their belts.

And it’s clear it is not enough to just receive some education/training on use of the taser. Taser use must be practiced just as often (perhaps even more often) than practicing gun use and done under conditions closely simulating those in which a taser is likely to be needed.

But, let’s go back to the concentrated potassium issue in hospitals. You’ll recall that nurses withdrew fluid from what they thought were vials of heparin or insulin but were really vials of concentrated potassium. When injected, that would cause the heart to stop beating. One problem was the similarity of the vials of the various substances. The other problem was that there really was no need for vials of concentrated potassium salts to be on nursing units at all. Many years ago, nurses did have to add potassium to IV fluids but now IV fluids are typically prepared in hospital pharmacies, so nurses don’t have the need for vials of potassium any longer. The solution was to remove vials of potassium from floor stock on nursing units all together.

The taser dilemma needs a similar solution. Not removal of the tasers, of course. But rather redesign of the tasers. We’ve heard all the media pundits say “how could anyone mistake their gun for a taser? The gun and the taser have different weights and the officers are supposed to wear the taser on the side of their nondominant hand. The taser is a different color (usually a bright, often neon, color) to distinguish it from the gun. And officers are supposed to be trained on use of both guns and tasers. But, obviously, all those features have not prevented incidents where guns are mistaken for tasers.

Our take – the taser looks like a gun and has a trigger like a gun! So, it’s no surprise that, in the heat of an emergent situation, someone will pull that trigger. If nothing is done, it is inevitable there will be another inadvertent shooting after mistaking a gun for a taser. The solution should be to redesign tasers so they have a different shape and have an activation mechanism that is different than a gun-style trigger. Maybe add some sort of audible signal that appears when the taser is unholstered. Is that too much to ask? Just be careful the redesign does not have its own unintended consequences (like tasing oneself!).

We have no intention of getting into the discussion of whether tasers or any other forceful actions were appropriate in this incident and we’re focusing just on the taser issue. While there are clearly many other issues and factors contributing to the most recent taser/gun incident, the fact that so many such incidents have occurred tells us that there is a strong underlying system vulnerability that is a primary root cause of such incidents. Just as we had put our nurses in position to inadvertently administer lethal potassium doses years ago, the current design of tasers puts officers in position to inadvertently shoot someone. It’s time for thoughtful analysis and realistic solutions.

https://www.patientsafetysolutions.com/docs/April_20_2021_Taser_Slip_and_Capture_Error_Again.htm