Ex-Cop Wants Judge, Not Jury, To Decide On Extended Sentence If Convicted In Police Killing

Former Minnesota officer Kim Potter, on trial in the death of Daunte Wright, could get a longer sentence if she's convicted and the judge finds aggravating factors.

Former Minnesota police officer Kim Potter said during her trial on Tuesday that she wants the judge, not the jury, to decide whether there are aggravating factors that would subject her to a longer sentence should she be convicted in the fatal shooting of motorist Daunte Wright earlier this year.

Prosecutors are seeking a longer than usual sentence for Potter, who is charged with first- and second-degree manslaughter in the death of Wright during an April 11 traffic stop while she was an officer with the Brooklyn Center Police Department. The trial began last week for Potter, a white office with 26 years on the police force, who maintains she mistakenly drew her handgun when she meant to take out and use her Taser on the 20-year-old Black driver.

If Potter is convicted of at least one of the manslaughter counts, she then has the right to have a jury determine whether there were “aggravating factors” in her case that would result in a sentence longer than what’s called for under Minnesota’s sentencing guidelines. If Potter is found not guilty, the question of aggravating factors would subsequently not be considered separately in her case.

Prosecutors submitted two aggravating factors they said should be considered in sentencing. The first is that Potter “caused a greater than normal danger” to the safety of other people when her decision to shoot Wright in an operational vehicle ― with a passenger and two officers close by ― resulted in him and the passenger getting into a serious crash with another occupied car and injuring others on a busy street.

The second factor is that Potter “abused her position of authority as she was a licensed police officer in full uniform who had seized” Wright.

If they return a conviction, the jury would have to find beyond a reasonable doubt that the two aggravating factors existed in order for them to call for a more severe sentence. However, Potter said she formally waived her right to a jury on the aggravating factors and will allow Hennepin County District Judge Regina Chu to decide whether the two factors exist.

“Is it your wish to give up your right to a jury trial on whether or not the two [aggravated] factors exist in the event of a guilty verdict?” Chu asked Potter.

“Yes, your honor,” the ex-officer said, adding that she discussed the decision with her attorneys and did not need more time to contemplate it.

Since 1980, Minnesota has used a guidelines-based sentencing system to impose a presumptive sentencing range for all felony offenses. Despite the potential penalties, judges have the authority to depart from the guidelines when longer sentences are warranted due to compelling issues termed “aggravating factors.”

The constitutionality of sentencing departures under guidelines-based sentencing systems, now used by many states, was called into question in 2004 when the U.S. Supreme Court reviewed an enhanced sentence in Blakely v. Washington. In that case, the high court found that the enhanced sentence violated the Sixth Amendment because a sentencing judge, not a jury, found that the defendant acted with particular cruelty. The landmark case held that any fact ― other than the fact of prior conviction ― that increases the penalty for a crime beyond the defined maximum must be found by a jury, not a sentencing judge.

In 2009, the Minnesota Supreme Court issued a controversial opinion interpreting the scope of the Blakely case. The state’s high court relied on a self-created distinction between “facts” and “factors” to issue a rule prohibiting juries from making final aggravating factor determinations for sentencing purposes. The ruling effectively declared that aggravating factors are legal, and not factual, determinations and therefore can be decided by a judge if the defendant waives their right to a jury.

Brooklyn Center police Cmdr. Garett Flesland testifies Tuesday in the trial of former officer Kim Potter in the April 11 death of Daunte Wright in the Minneapolis suburb.
Brooklyn Center police Cmdr. Garett Flesland testifies Tuesday in the trial of former officer Kim Potter in the April 11 death of Daunte Wright in the Minneapolis suburb.
Court TV via Associated Press

In addition to Potter’s announcement, the trial Tuesday included testimony from Brooklyn Center police Cmdr. Garett Flesland, a second and more senior member of the department, after jurors heard Monday from Sgt. Mychal Johnson, who was partly inside the vehicle when Potter shot Wright.

Flesland testified that Potter’s actions related to the shooting, as described by her attorney, gave justification to use deadly force on Wright. The commander acknowledged to prosecutors that he had seen only portions of body camera and squad car footage, had not done his own investigating and had not reviewed any reports of the incident. He testified that his defense of Potter’s use of force was mostly based on the scenario described by the defense.

The jury also heard from police Sgt. Michael Peterson, a Taser instructor for the department, who testified about how to operate the device, and whether and when it should be deployed. Peterson also showed the jury how to conduct a Taser “spark” test, which is an operational check that Brooklyn Center police are required to do and log at the beginning of every shift. Potter conducted a spark test only six out of 10 days before April 11 and had last conducted it April 9.