Jury instructions hashed out before testimony begins in Kimberly Potter trial

Attorneys and the judge in the trial of former Brooklyn Center police officer Kimberly Potter met in-chambers Monday and discussed proposed jury instructions before they gathered again in court later in the morning to take them up again on the record.

Hennepin Court District Judge Regina Chu, prosecutor Matthew Frank and defense attorney Paul Engh reviewed the instructions in open court, but without the jurors present, which is the common process for finalizing jury instructions. Potter was not in the courtroom for this step in her trial.

As the brief session was about to wrap up, Chu said that photos from Wright's autopsy will not be shown over the telecast livestream, citing the wishes of the family.

At the same time, Chu said, the photos will be visibile to the news media in the courtroom and in an overflow room.

The judge explained that her decision "strikes a fair balance" between the public's access to the trial while "maintaining the dignity of the decesased."

The trial resumes Wednesday at 9 a.m., with opening statements.

Chu said she has approved most but not all of the instructions, leaving some to be ruled upon during the course of the trial.

The instructions guide jurors about what to consider in determining whether a defendant is guilty of the charges filed against them and covers broad facets of the jury process.

Attorneys not involved in the case said jury instructions are particularly important in Potter's case because the nature of the charges she faces. Potter, 49, is on trial in Hennepin County District Court on one count each of first- and second-degree manslaughter for fatally shooting Daunte Wright during an April 11 traffic stop.

"The law is muddy in some of the particulars and a lot will depend on the specific jury instructions that the judge gives on both charges," said Mitchell Hamline School of law professor Ted Sampsell-Jones.

Potter's defense has argued that she made a mistake and meant to deploy her Taser when she instead fired a single shot at Wright, 20, with her handgun. Prosecutors have argued that Potter acted recklessly and negligently, and should have known better because she was a 26-year departmentveteran with Taser training.

Police body camera video captured Potter shooting Wright while yelling, "Taser! Taser! Taser!"

"The facts are caught on video. Even if you accept whole hog what the defense might argue that is this was mistake... the question is is there a legal consequence?" said defense attorney A.L. Brown, adding that jury instructions will be "incredibly important."

In criminal trials the prosecution and defense file separate proposed jury instructions and hash them out with a judge before they are formally approved.

Key issues in the discussion for Potter's case are how to instruct jurors on the meaning of "culpable negligence" and under what circumstances police can use deadly force, among other issues.

One potential sticking point is the defense's proposal that Hennepin County District Judge Regina Chu tell jurors, "The fact that an accident has happened does not by itself mean that the defendant was at fault."

For second-degree manslaughter, the prosecution proposed that the judge instruct jurors, "Contributory negligence of Mr. Wright, if any, is not a defense to a criminal charge."

The prosecution also proposed that jurors are told, "You may also consider the Defendant's prior knowledge, experience & history," in determining whether her use of force was lawful. Prosecutors noted in the criminal complaint filed against Potter that she received Taser training twice in the six months leading up to the shooting, and was warned to learn how to differentiate between her handgun and Taser.

Attorneys not involved in the case say defining "culpable negligence," an element of second-degree manslaughter, will be hard for both sides.

Prosecutors proposed, "Culpable negligence' is intentional conduct that the Defendant may not have intended to be harmful but that an ordinary and reasonably prudent person would recognize as involving a strong probability of injury to others," which is boilerplate.

The defense proposed the same with the addition of, "Culpable negligence is more than ordinary negligence... It is a conscious disregard of a substantial and unjustifiable risk of which one actually is aware & not a disregarding of a risk of which one should be aware."

The defense also proposed that the judge should tell jurors a conscious risk "means the defendant was actually ware of the risk that she, by believing she was using a TASER, would be causing death or great bodily harm, and aware of the risk at that precise moment, disregarded it."

Defense attorneys unveiled some of their strategy through their proposed instructions. They want jurors to be informed that Wright's "negligence" could include interfering with police duties, "disorderly conduct," driving under the influence of marijuana and having marijuana in a car.

Wright was stopped for expired tabs, and police discovered that he had a warrant out for his arrest for a gross misdemeanor weapons charge. Body camera video showed him pulling away from an officer trying to handcuff him and jump into his car. Potter's defense has argued that one of Potter's colleagues could have been dragged by Wright's car as he attempted to flee.

"Mr. Wright's negligence is not a defense in a criminal case," proposed Potter's defense. "However, in considering whether or not Officer Potter exercised the care of a reasonably prudent peace officer... the jury may take into consideration the conduct/Mr. Wright..."

The defense's proposed instructions include: "Fleeing a police officer is a crime of violence, which by definition involves 'the use or threatened use of deadly force.' "

Potter's trial began last Tuesday with jury selection. Opening statements are scheduled to begin Wednesday, and the trial is expected to wrap up the last week of December.