Potter Jury Deliberating; Juror Nullification Possible

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Potter Jury Deliberating; Juror Nullification Possible; With Little Defense, “Taser” Shooting Cop Counting On

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"Taser" Shooting Cop May Be Hoping For Juror Nullification

WASHINGTON, D.C. (December 20, 2021) - The case against former police officer Kim Potter, accused of first- and second-degree manslaughter for shooting a suspect with her pistol, apparently thinking she was holding her Taser, has gone to the jury.

But here, 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.

"Jury nullification," a constitutional right recognized and upheld by the U.S. Supreme Court, occurs when the jurors, despite concluding beyond a reasonable doubt that a defendant has violated the criminal law as explained to them by the judge, nevertheless unanimously votes "not guilty."

In this case jurors could refuse to vote for a conviction, despite the strength of the evidence, 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.

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, or another where a jury refused to convict a women of illegal possession of a switch blade knife after she was arrested for the crime only after she was forced to use it to defend herself from a vicious attempted rape.

A Constitutionally Protected Right

"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 all of the same reasons.

If only one juror votes not guilty even while believing that Potter's guilt has been proven - juror nullification - the result is a mistrial. If all jurors - including some exercising their constitutional right of jury nullification - vote not guilty, the defendant goes free and there is no appeal.

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, or at very least a mistrial if one juror is sufficiently moved to refuse to convict her of either charge, suggests the law professor.