Former Brooklyn Center officer Kimberly Potter's odds for successful appeal appear slim

Experienced attorneys say former Brooklyn Center police officer Kimberly Potter faces a slim chance of prevailing in a likely appeal of last month's manslaughter convictions in the shooting death of Daunte Wright.

A well-run trial by the judge presiding over Potter's case and few to no glaring legal issues will pose formidable challenges for Potter to overcome, said attorneys who are not involved in the case. Potter has not yet appealed her case. Her attorneys, Paul Engh and Earl Gray, declined to comment.

"I don't really see much of a viable appeal," said defense attorney Joe Friedberg.

Jurors convicted Potter, 49, on Dec. 23 of first- and second-degree manslaughter for fatally shooting Wright, 20, during a traffic stop last year after he tried to flee while being arrested.

Potter, who is being held in the Shakopee Women's Correctional Facility, is scheduled to be sentenced Feb. 18.

Potter's attorneys argued at trial that she should be acquitted because she made a mistake and meant to use her Taser when she instead used her handgun to fire a single shot into Wright's chest on April 11. Her body camera showed her yelling, "Taser! Taser! Taser!" as she shot Wright. Prosecutors argued that she was a 26-year veteran who ignored her training and acted recklessly and negligently.

Filing an appeal despite the odds should be expected in a criminal case, said Mitchell Hamline School of Law Prof. Bradford Colbert.

"That's a really important part of the criminal process," Colbert said. "This is a chance for the appellate court to look at a case to say, 'Did the trial court get it right?' It's always an uphill battle to overturn a conviction."

Attorneys predicted that Potter's appeal would list a number of likely issues: the meaning of language in the manslaughter statutes and their application to Potter's actions, the instructions jurors received to guide their deliberations, and the judge's prohibition against defense attorneys presenting evidence on Wright's previous flight from police.

"I think they will attack, substantively, the law itself, because the ultimate defense is: You can't prosecute someone for making a mistake," said Joseph Daly, Mitchell Hamline School of Law emeritus professor. "So … as the law is written and applied to her, it violates her substantive due process right."

Minnesota's first-degree manslaughter statute applies when a defendant commits or attempts to commit an offense where death or great bodily harm "was reasonably foreseeable." Second-degree manslaughter applies when a defendant exhibits "culpable negligence" and creates "an unreasonable risk, and consciously takes chances of causing death or great bodily harm."

Hennepin County District Judge Regina Chu gave jurors instructions that said an element of first-degree manslaughter is the "reckless handling or use of a firearm" due to "a conscious or intentional act."

During closing arguments, Assistant Attorney General Erin Eldridge told jurors that Potter's intentional acts included unholstering her gun and drawing the weapon, turning off the safety, pointing it at Wright and pulling the trigger. Gray told jurors they had to acquit Potter because there was no conscious or intentional act since she believed she was using her Taser.

Gray and Engh asked Chu to give jurors an instruction that read, "The fact that an accident has happened does not by itself mean that the defendant was at fault." The judge rejected the proposal.

While Daly said the statutory issues could be "very strong" points for Potter, Friedberg said previous Minnesota Court of Appeals decisions have provided sufficient clarity on them and how they should be applied.

Retired Hennepin County District Judge Kevin Burke said it's difficult to get a criminal conviction overturned. "There really are never sure-fire issues on appeal," he said.

Burke highlighted how the defense claimed at trial that prosecutors had improperly conducted a second closing argument in rebuttal to the defense. Even when appellate courts find that an action at trial was erroneous, they tend to uphold a verdict by deeming the error to be "harmless."

Joe Tamburino, a criminal defense attorney, saw more hope for Potter's appeal, noting there are generally two avenues: One is to claim insufficient facts and the other is to make a legal argument. He said the first one is "always a loser."

Tamburino doesn't think Potter has a solid legal argument on second-degree manslaughter. But he thinks she has one on the first-degree manslaughter charge.

He pointed out that prosecutors waited until fall to file the charge against Potter, who was initially charged only with second-degree manslaughter.

To find Potter guilty on first-degree, the jury first had to determine she had negligently handled a firearm. But Tamburino said the state Supreme Court has never ruled that negligently handling a gun could be used as a predicate, the underlying crime, for first-degree manslaughter.

Former Ramsey County Attorney Susan Gaertner, who now works as a defense attorney, said it was the jury's job to judge the facts and apply the law how they deemed fit.

"Potter's conviction, I think, was a surprise to some if not to many because of the pretty clear indication that her conduct was not intentional," Gaertner said. "Her mistake was serious, but obviously not intended to happen, but the jury felt that the state had proved its case beyond a reasonable doubt, and it's highly, highly unlikely that any appeals court would second-guess the jury's decision."

An appeals case based on the statutory language, said some attorneys, would be weak compared with the appeal of former Minneapolis police officer Mohamed Noor.

In 2019 jurors convicted Noor, 36, of third-degree murder and second-degree manslaughter for fatally shooting Justine Ruszczyk Damond while responding to her 911 call about a possible sexual assault outside her home. Noor's attorneys argued in their appeal that Noor intentionally fired his gun at a single person he considered a threat while the third-degree murder statute applies when a defendant exhibits a "depraved mind" and perpetrates an act "eminently dangerous to others" — that is, dangerous to more than one person.

Noor's appeal climbed to the Minnesota Supreme Court, which ruled in his favor and vacated the murder conviction and a 12½-year prison term he was serving. Noor was resentenced last October to 4¾ years in prison on the manslaughter count, making him eligible for release from prison on June 27.

Gaertner said an appeal from Potter would be received marginally better than the pending appeal by former Minneapolis police officer Derek Chauvin, who was convicted early last year of second-degree murder, third-degree murder and second-degree manslaughter in the killing George Floyd in 2020. Chauvin knelt on Floyd's neck for more than nine minutes as Floyd and bystanders pleaded for him to stop.

"Potter's conduct was more ambiguous," Gaertner said. "[Chauvin's] conduct was so egregious and the evidence was so clear that … there's just no chance of that [conviction] being disturbed."

Chu's ruling that Potter's defense could not present evidence about Wright fleeing previous police encounters will likely be cited in an appeal even if it is a weak argument, attorneys said. Chu said Potter's defense could not present evidence on Wright's criminal history that Potter was not aware of at the time of the shooting.

"The reasoning is proper in why Judge Chu did not allow it; otherwise in every crime it's blame the victim," Daly said. "The case is not about how good or bad the victim was."

Chu ran a "very good" trial that left little fodder for Potter's team to pick apart in an appeal, Gaertner said. Friedberg agreed.

"I don't know any mistakes the judge made," Friedberg said.