Judging Freedom - Ex Cop Kim Potter verdict explanation

Episode Date: February 21, 2022

Judge Napolitano answers viewer questions about Ex Cop Kim Potter's verdict.See Privacy Policy at https://art19.com/privacy and California Privacy Notice at https://art19.com/privacy#do-not-sell-my-info.

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Save $80 with code SPACE80 at Talkspace.com. Hello there everyone, Judge Andrew Napolitano here with Judging Freedom. Today is Monday, February 21st, 2022. It's about 2 40 in the afternoon on the east coast. We have a couple of questions from very astute, very prudent viewers who are asking about the sentencing in the Kim Potter case. Just to refresh your memory, she is the former police officer in Minnesota who reached for her taser and instead pulled out her Glock. And when she pulled the trigger, she killed a guy who she had stopped. She and another police officer had stopped for a motor vehicle violation. Her defense essentially was that it was an accident, that she made a mistake, that she thought she was reaching for the taser.

Now, why would she even have a taser at a motor vehicle stop? Well, it turned out there was an arrest warrant out for this fellow for illegal possession of a weapon. I don't know if he had the weapon with him. She didn't see the weapon. But when she told him they were going to arrest him, he started the car up again. And that's when she killed him him thinking she was going to use the

taser. Those are the basic facts in the case. She was convicted. She was convicted of what in Minnesota is called second degree manslaughter. That is basically the use of a dangerous instrument in a reckless manner. In this case, a gun. You can be convicted of second-degree manslaughter if you hit somebody in the forehead with a golf club or with a baseball bat if they're too close to you and you are not careful enough. The use of a dangerous instrument in a reckless manner. You don't intend the death, but you intend to use the instrument. In her case, she didn't even intend to use the instrument. So Eddie Bra asks, she was negligent, not reckless. An accident is a defense. Can you explain further? Yes, I can explain further, Eddie. In Minnesota and in most states, an accident or a mistake is not a defense. The only defense here would be that she shouldn't have been

prosecuted. That's a decision for the prosecutor. So the defense is really jury nullification. A jury nullification is always a constitutional defense. Some judges won't let you make that argument in the courtroom, and some judges will. But if you're saying it's a mistake, that's not a defense. That may lessen the severity of the punishment, but it doesn't diminish guilt. That's at least the law. My view of the law, I'm with you, Eddie. An accident, a mistake, should be a defense to a killing of this nature, but in Minnesota, it's not. Second question is from Kamu Ayindi, who asks us to compare the case of a Somalian-born police officer accidentally shot a white female Australian immigrant.

He was found guilty and sentenced to 12 and a half years in prison, reduced to five. Why the disparity in the sentencing? Well, because no two cases are alike and no two judges are alike. The most quotable judge in American history, Benjamin Nathan Cardozo, once said, justice is determined by the personality of the judges. That shouldn't be the case, but it is. So when it comes to sentencing, where judges are given a lot of discretion, judges have checklists. You check all the aggravating factors, the things the defendant did that made the case worse. You then check the mitigating factors, the things the defendant did before, during, or after the crime that made the situation not as bad. Now, those checklists have about 25 or 30 items on each of them. So the checklists are never going to be the same. Now, this is not an algorithm.

Five of one and three of the other produces this kind of a sentencing. These are guidelines that judges use when they calculate a sentence. And these are reasons judges give so that when the sentence is reviewed by an appellate court, three judges who will review it if there is an appeal, and both sides can appeal. The government can appeal and say it's not heavy enough. The defendant can appeal, though I would encourage former Officer Potter not to appeal because it's a relatively light sentence. The defendant can appeal and say it's too heavy. Then the appellate court is going to look at the reasons given by the judge, and those reasons will be effectively the boxes checked on the checklist. So no two cases alike here or anywhere. Judge Napolitano, judging freedom.