“Taser” Shooting Cop May Be Seeking Jury Nullification; Prosecution Case So Strong, Sympathy May Be Potter’s Only Defense
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Taser Shooting Cop Takes A Stand
WASHINGTON, D,C (December 17, 2021) – 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 taken the stand in her own defense.
Testifying is almost always a risky move for a defendant since it subjects her to withering cross examination, says public interest law professor John Banzhaf, who has successfully predicted the outcome in many shooting cases.
But here, since the evidence of guilt is so strong, and there is little if anything she can say to legally 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 trying to encourage and hope to trigger 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.”
Jurors may do this because they believe that the law is unfair or unreasonable, either in general or as applied in a specific situation, to send some kind of message to prosecutors and/or to the general public, because a conviction in a specific situation might seem unjust or unfair for some reason, to register strong discontent with the conduct of the prosecutor, because of public pressure for – or concern about – a particular verdict, etc.
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 can evoke by a convincing appearance on the witness stand.
Some clear examples of juror nullification include the earlier unwillingness of many Northern juries to convict persons proven to have helped runaway slaves to escape, or many Southern juries which refused to convict White persons charged with crimes against Blacks.
More recent examples where sympathy probably played a major role was a jury’s finding 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 an attempted rape.
“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, while Potter’s agreeing to testify puts her at risk of a withering cross examination, she might generate enough sympathy with a showing of overwhelming guilt and remorse 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.