Charging Kim Potter for Manslaughter is not Justice Under Law | Opinion

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.

Daunte Wright protest April 12, 2021
People gather before curfew holding pictures of Daunte Wright along with Black Lives Matter signs to protest his death by a police officer in Brooklyn Center, Minnesota on April 12, 2021. Protests broke out Tuesday night in Minneapolis despite a curfew implemented after a police officer fatally shot a young Black man when she appeared to confuse her handgun with her taser, fueling tensions in a city already on edge because of the George Floyd murder trial. Kerem Yucel/AFP via Getty Images

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.

Follow Alan Dershowitz on Twitter @AlanDersh and on Facebook @AlanMDershowitz. His new podcast, The Dershow, can be found on Spotify, YouTube and iTunes.

The views expressed in this article are the writer's own.