jimnyc
04-20-2021, 02:04 PM
Deershowitz lays out a good argument of course. The charges against her simply don't fit. She made a monster sized mistake, and worthy of termination. During the heat of the moment she reached on the wrong side of her belt, and shot him instead of tasing him. Heat of the moment or not she should have known better. I have all kinds of condemnation for her as she just royally fucked up. But that is one thing and charging her is another. Not sure what charges fall underneath manslaughter, but the written charges as they are do not fit.
So perhaps it was purely "accidental". And how is that covered under the law?
Accidental (https://www.ringstromlaw.com/practice-areas/manslaughter)
In homicide cases, it can often be proven the death of the victim occurred as a result of an accident. This proof can then have a homicide charge reduced to a voluntary manslaughter conviction. This means the manslaughter charge has an element of intent involved. If the killing was a result of a 'heat of passion,' you would then have been found to have had an intention to cause severe bodily harm or death with your actions.
I highly highly doubt that could prove intent here. As much of an idiot as she was, and as much of a royal effup, I don't think she pulled the gun and shot him purposely.
A civil suit in a wrongful death case? Maybe so and a likely winner. But a criminal case? The one chosen does not fit. If a lower charge fits, the they should have went with that.
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609.205 MANSLAUGHTER IN THE SECOND DEGREE.
A person who causes the death of another by any of the following means is guilty of manslaughter in the second degree and may be sentenced to imprisonment for not more than ten years or to payment of a fine of not more than $20,000, or both:
(1) by the person's culpable negligence whereby the person creates an unreasonable risk, and consciously takes chances of causing death or great bodily harm to another; or
(2) by shooting another with a firearm or other dangerous weapon as a result of negligently believing the other to be a deer or other animal; or
(3) by setting a spring gun, pit fall, deadfall, snare, or other like dangerous weapon or device; or
(4) by negligently or intentionally permitting any animal, known by the person to have vicious propensities or to have caused great or substantial bodily harm in the past, to run uncontrolled off the owner's premises, or negligently failing to keep it properly confined; or
(5) by committing or attempting to commit a violation of section 609.378 (neglect or endangerment of a child), and murder in the first, second, or third degree is not committed thereby.
If proven by a preponderance of the evidence, it shall be an affirmative defense to criminal liability under clause (4) that the victim provoked the animal to cause the victim's death.
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Charging Kim Potter for Manslaughter is not Justice Under Law
There is no legitimate basis in Minnesota law for charging Kim Potter with second-degree manslaughter in the tragic death of Daunte Wright. The statute provides that "A person who causes the death of another by any of the following means is guilty of manslaughter in the second degree.... (1) by the person's culpable negligence whereby the person creates an unreasonable risk, and consciously takes chances of causing death or great bodily harm to another." The crucial evidence in this case is the videotape of the encounter, which clearly shows that Potter intended to tase Wright, rather than shoot him. As she draws her weapon, she can be heard screaming "taser, taser, taser." She then fires once from what she clearly believed was a non-lethal taser. She quickly realizes that she has mistakenly fired a lethal pistol and shouts, "Holy s**t, I just shot him."
There is simply no way that a reasonable jury could conclude beyond a reasonable doubt that Potter "consciously" took the chance of causing Wright's death. She did not intend to kill him, nor did she consciously believe her decision to tase him would produce a lethal result.
How then could a reasonable prosecutor charge a police officer—one with 26 years of experience and a good record—with violating a statute that simply doesn't cover her conduct? No conscientious prosecutor could do so, but the crowds demanding justice for Daunte Wright have put a heavy thumb on the scales. This is a charge based not on the rule of law, but on the demands of the crowd.
There are three theories that the prosecution could present in an effort to justify their unjust decision to charge Potter. None of them work as a matter of fact or law.
The first follows the text of the statute but stretches the facts to fit it. Prosecutors might try to argue that Potter knew full well she was firing a lethal weapon rather than a taser, and shouted "taser" as a cover for consciously taking action that she knew might cause Wright's death. But there is absolutely no evidentiary support for such a speculative theory and I doubt prosecutors will even offer it.
The second theory the prosecution might offer is that although Potter intended to use the taser, even that action violated the statute, because tasers carry a small chance of causing death or great bodily harm. But to make that argument, prosecutors would have to show that firing a taser under the circumstances of this encounter was criminal. We know Potter was aware that Wright was wanted on an outstanding felony warrant. We don't know (or at least I don't know) how much she knew about the underlying felony. We now know that it was attempted armed robbery involving the use of a gun. We are also advised that Wright continued to possess a gun after he was arrested for armed robbery. But even if Potter was not aware of these facts at the time she decided to use the taser, her decision would seem entirely justified: a wanted felon was trying to get into his car, which could have contained a weapon. He was also trying to drive away, thus potentially endangering pedestrians and evading his capture. Under these circumstances the use of the taser would seem justified. It certainly would not be criminal under the terms of the homicide statute.
Third, prosecutors might try to interpret the statute in a way that substitutes "or" for "and." As written, the statute requires that the defendant's "culpable" negligence presents an "unreasonable" risk "and" consciously takes chances of causing death or serious bodily harm. If one changes "and" to "or," the prosecution could argue that Potter engaged in culpable negligence which created an unreasonable risk—without having to prove that she was consciously aware she might cause death or bodily harm. But it is unconstitutional to change a statute after the events in question so as to make its words fit the facts of a case. A criminal statute must be clear and unambiguous as interpreted by the usual rule of statutory interpretation and grammar. Thomas Jefferson once put this requirement as follows: A criminal statute must be so clear that the ordinary person will be able to understand it when reading it while running. I taught criminal law for half a century and studied hundreds of criminal statutes, and I cannot understand this statute as eliminating the requirement of conscious knowledge that there was a chance of causing death or bodily harm.
The consequences of unjustly charging Kim Potter with the serious crime of manslaughter go well beyond this case, this location and this time. It reflects a growing danger of weaponizing the criminal justice system in response to the demands of protesters. Our Constitution protects, as it should, the right of every member of the public to protest, to seek justice for victims and to demand a redress of grievances. But these protests are appropriately directed at legislators, governors, presidents and other elected officials. They have no place in the proper administration of justice. They certainly should not influence jurors, as they may in the pending Derek Chauvin case. But nor should they influence prosecutors, even those who are elected. We are the only Western democracy that elects prosecutors, and there is considerable dispute as to whether that is a good idea. But even if it is, elected prosecutors must resist the demands of the crowd to violate the rule of law and seek revenge rather than justice.
https://www.msn.com/en-us/news/crime/charging-kim-potter-for-manslaughter-is-not-justice-under-law-opinion/ar-BB1fOwUj
So perhaps it was purely "accidental". And how is that covered under the law?
Accidental (https://www.ringstromlaw.com/practice-areas/manslaughter)
In homicide cases, it can often be proven the death of the victim occurred as a result of an accident. This proof can then have a homicide charge reduced to a voluntary manslaughter conviction. This means the manslaughter charge has an element of intent involved. If the killing was a result of a 'heat of passion,' you would then have been found to have had an intention to cause severe bodily harm or death with your actions.
I highly highly doubt that could prove intent here. As much of an idiot as she was, and as much of a royal effup, I don't think she pulled the gun and shot him purposely.
A civil suit in a wrongful death case? Maybe so and a likely winner. But a criminal case? The one chosen does not fit. If a lower charge fits, the they should have went with that.
---
609.205 MANSLAUGHTER IN THE SECOND DEGREE.
A person who causes the death of another by any of the following means is guilty of manslaughter in the second degree and may be sentenced to imprisonment for not more than ten years or to payment of a fine of not more than $20,000, or both:
(1) by the person's culpable negligence whereby the person creates an unreasonable risk, and consciously takes chances of causing death or great bodily harm to another; or
(2) by shooting another with a firearm or other dangerous weapon as a result of negligently believing the other to be a deer or other animal; or
(3) by setting a spring gun, pit fall, deadfall, snare, or other like dangerous weapon or device; or
(4) by negligently or intentionally permitting any animal, known by the person to have vicious propensities or to have caused great or substantial bodily harm in the past, to run uncontrolled off the owner's premises, or negligently failing to keep it properly confined; or
(5) by committing or attempting to commit a violation of section 609.378 (neglect or endangerment of a child), and murder in the first, second, or third degree is not committed thereby.
If proven by a preponderance of the evidence, it shall be an affirmative defense to criminal liability under clause (4) that the victim provoked the animal to cause the victim's death.
---
Charging Kim Potter for Manslaughter is not Justice Under Law
There is no legitimate basis in Minnesota law for charging Kim Potter with second-degree manslaughter in the tragic death of Daunte Wright. The statute provides that "A person who causes the death of another by any of the following means is guilty of manslaughter in the second degree.... (1) by the person's culpable negligence whereby the person creates an unreasonable risk, and consciously takes chances of causing death or great bodily harm to another." The crucial evidence in this case is the videotape of the encounter, which clearly shows that Potter intended to tase Wright, rather than shoot him. As she draws her weapon, she can be heard screaming "taser, taser, taser." She then fires once from what she clearly believed was a non-lethal taser. She quickly realizes that she has mistakenly fired a lethal pistol and shouts, "Holy s**t, I just shot him."
There is simply no way that a reasonable jury could conclude beyond a reasonable doubt that Potter "consciously" took the chance of causing Wright's death. She did not intend to kill him, nor did she consciously believe her decision to tase him would produce a lethal result.
How then could a reasonable prosecutor charge a police officer—one with 26 years of experience and a good record—with violating a statute that simply doesn't cover her conduct? No conscientious prosecutor could do so, but the crowds demanding justice for Daunte Wright have put a heavy thumb on the scales. This is a charge based not on the rule of law, but on the demands of the crowd.
There are three theories that the prosecution could present in an effort to justify their unjust decision to charge Potter. None of them work as a matter of fact or law.
The first follows the text of the statute but stretches the facts to fit it. Prosecutors might try to argue that Potter knew full well she was firing a lethal weapon rather than a taser, and shouted "taser" as a cover for consciously taking action that she knew might cause Wright's death. But there is absolutely no evidentiary support for such a speculative theory and I doubt prosecutors will even offer it.
The second theory the prosecution might offer is that although Potter intended to use the taser, even that action violated the statute, because tasers carry a small chance of causing death or great bodily harm. But to make that argument, prosecutors would have to show that firing a taser under the circumstances of this encounter was criminal. We know Potter was aware that Wright was wanted on an outstanding felony warrant. We don't know (or at least I don't know) how much she knew about the underlying felony. We now know that it was attempted armed robbery involving the use of a gun. We are also advised that Wright continued to possess a gun after he was arrested for armed robbery. But even if Potter was not aware of these facts at the time she decided to use the taser, her decision would seem entirely justified: a wanted felon was trying to get into his car, which could have contained a weapon. He was also trying to drive away, thus potentially endangering pedestrians and evading his capture. Under these circumstances the use of the taser would seem justified. It certainly would not be criminal under the terms of the homicide statute.
Third, prosecutors might try to interpret the statute in a way that substitutes "or" for "and." As written, the statute requires that the defendant's "culpable" negligence presents an "unreasonable" risk "and" consciously takes chances of causing death or serious bodily harm. If one changes "and" to "or," the prosecution could argue that Potter engaged in culpable negligence which created an unreasonable risk—without having to prove that she was consciously aware she might cause death or bodily harm. But it is unconstitutional to change a statute after the events in question so as to make its words fit the facts of a case. A criminal statute must be clear and unambiguous as interpreted by the usual rule of statutory interpretation and grammar. Thomas Jefferson once put this requirement as follows: A criminal statute must be so clear that the ordinary person will be able to understand it when reading it while running. I taught criminal law for half a century and studied hundreds of criminal statutes, and I cannot understand this statute as eliminating the requirement of conscious knowledge that there was a chance of causing death or bodily harm.
The consequences of unjustly charging Kim Potter with the serious crime of manslaughter go well beyond this case, this location and this time. It reflects a growing danger of weaponizing the criminal justice system in response to the demands of protesters. Our Constitution protects, as it should, the right of every member of the public to protest, to seek justice for victims and to demand a redress of grievances. But these protests are appropriately directed at legislators, governors, presidents and other elected officials. They have no place in the proper administration of justice. They certainly should not influence jurors, as they may in the pending Derek Chauvin case. But nor should they influence prosecutors, even those who are elected. We are the only Western democracy that elects prosecutors, and there is considerable dispute as to whether that is a good idea. But even if it is, elected prosecutors must resist the demands of the crowd to violate the rule of law and seek revenge rather than justice.
https://www.msn.com/en-us/news/crime/charging-kim-potter-for-manslaughter-is-not-justice-under-law-opinion/ar-BB1fOwUj