Most jury instructions finalized in Potter case; opening statements Wednesday

The judge presiding over the trial of former Brooklyn Center police officer Kimberly Potter rejected several jury instructions proposed by her defense team, giving shape to what jurors must consider in deciding whether she is guilty of a crime for fatally shooting Daunte Wright.

Defense attorneys, prosecutors and Hennepin County District Judge Regina Chu met in chambers Monday to discuss jury instructions and addressed the matter in open court just before noon. Jurors were not in attendance. Potter waived her right to appear and was not present.

One of Potter's attorneys, Paul Engh, listed several objections to Chu's denials and implored her to reconsider some of her decisions. Assistant Minnesota Attorney General Matthew Frank accused Potter's defense of crafting proposed instructions that would improperly re-argue its case, and of airing several issues — including Wright's conduct during the shooting — for the public's benefit more than the trial process.

In criminal trials, the prosecution and defense file separate proposed jury instructions and discuss them with a judge, who finalizes one set of instructions that guides jurors in evaluating the law and evidence. Chu said she had finalized the majority of the instructions and would decide others after hearing testimony.

The judge has not publicly filed her decisions on the instructions, which is not unusual at this stage, so it's unknown how she ruled on every proposal. However, arguments in court revealed the defense's disappointment.

Engh objected to Chu rejecting the defense's definition of culpable negligence, its instruction that fleeing a police officer is a felony and its instruction that use of force cannot be evaluated with 20/20 hindsight, among others. Engh also noted that in response to the prosecution's "spark of life" testimony, a common practice in which someone briefly testifies about the life of the deceased, the defense had wanted to present a picture of Wright pointing a handgun at a mirror.

Chu won't admit the picture at trial.

There was no public discussion of the defense's proposal that the court tell jurors, "The fact that an accident has happened does not by itself mean that the defendant was at fault."

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

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 department veteran with Taser training.

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

Chu rejected the defense's definition, which read: "It is more than ordinary negligence. It is more than gross negligence. It is gross negligence coupled with the element of recklessness. It is intentional conduct which the actor may not intend to be harmful, but which an ordinary, reasonable and prudent man would recognize as involving a strong probability of injury to others."

The prosecution's proposal states in part, "whoever does not intend to cause a death, but does so by error, is guilty."

Chu said she was using the standard instruction for second-degree manslaughter and that the defense's proposal was "not consistent" with the law and would confuse jurors.

For second-degree manslaughter, the prosecution also proposed that Chu instruct jurors that "(c)ontributory negligence of Mr. Wright, if any, is not a defense to a criminal charge."

In the criminal complaint against Potter, prosecutors noted 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. They proposed including the instruction, "You may also consider the Defendant's prior knowledge, experience & history," in determining whether her use of force was lawful. It's unknown how Chu ruled.

Defense attorneys revealed 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 jumping into his car. Potter's defense has argued that one of Potter's colleagues standing on the other side of Wright's car could have been fatally dragged as he attempted to flee.

"He didn't follow police orders," Engh said. "He had marijuana and the odor of marijuana in his car .... His own negligence contributed to the tragedy here."

Chu rejected the defense's instruction on fleeing police, noting that the defense can call witnesses to testify about the issue. It's unknown how she ruled on the others.

"It's inappropriate for the court to define it in the way requested," Frank said. "... Defendant is continuing to try to have closing arguments put in the jury instructions."

Photos from Wright's autopsy will not be shown over the telecast livestream, Chu said, citing the wishes of the family. They will be visible to the media and public in the courtroom and in an overflow courtroom.

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