Nullification May End “Taser” Shooting Trial – Experts

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Nullification May End “Taser” Shooting Trial – Experts; Likely Purpose of Potter’s Testifying Was to Elicit Sympathy

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A Deadly Mistake

WASHINGTON, D.C. (December 23, 2021) - The trial against police officer Kim Potter, who shot and killed a suspect when she mistook her pistol for a Taser, may well end in a hung jury according to several legal experts; a prediction buttressed by the jury's question about what would happen "if the jury cannot reach consensus."

This may well be her only hope, since the evidence to many seems so clear, and she was not able to offer a convincing explanation of how a trained officer made such a fundamental and deadly mistake.

On Tuesday, attorney and NewsNation host Dan Abrams reaffirmed his belief that there may be a hung jury, saying “It is still far from a foregone conclusion, but I would certainly not be surprised."

Joey Jackson and Mark O'Mara, both legal analysts for CNN who specialize in criminal cases, echoed these thoughts in two separate reports on that network.

And public interest law professor John Banzhaf, who has analyzed and correctly predicted the outcome of many criminal trials, wrote on Monday that juror nullification was likely to produce a hung jury.

Hoping For Juror Nullification

He noted that since the evidence of her guilt was so strong, and there was little in the trial to rebut claims that she acted recklessly in handling her firearm (first degree manslaughter) or was culpably negligent in creating an unreasonable risk (second degree manslaughter), she may be hoping for jury nullification, or at least juror nullification.

Indeed, the law professor posited that she may have taken the stand - something criminal defendants rarely do because it opens them up to piercing cross examination - for the primary purpose of eliciting sympathy for herself which could provide a basis for nullification.

"Juror nullification" (similar to "jury nullification") occurs when a juror exercises his constitutionally protected right to refuse to vote guilty even when he is convinced of a defendant's guilt - which could occur, for example, simply out of sympathy for a defendant who jurors may feel has already suffered enough from her deep remorse and strong feelings of guilt; sympathy which she may have evoked by a convincing tearful and contrite appearance on the witness stand.

If all jurors feel that way ("jury nullification"), they can vote "not guilty" no matter how strong the evidence, and the defendant goes free with no possibility of an appeal or retrial.

Recent examples of jury nullification, in which sympathy probably played a major role, occurred when a jury found Lorena Bobbitt not guilty of all criminal charges for admittedly cutting off her husband's penis while he slept, or another where a jury refused to convict a women of illegal possession of a switch blade knife after she was arrested for that crime only after she was forced to use it to defend herself from a vicious attempted rape.

But if only one or a few jurors refuse to vote for a conviction ("juror nullification"), despite the strength of the evidence, simply out of sympathy for a defendant, the result is a mistrial.

So Potter may well be hoping that her tearful testimony full of remorse generated enough sympathy to trigger a not guilty verdict due to jury nullification - very unlikely according to Banzhaf - or at very least a mistrial if even one juror is sufficiently moved to refuse to convict her of either charge.