Explainer: What to watch for in Kimberly Potter's sentencing hearing

A woman sits behind a desk.
Kimberly Potter takes the stand in her own defense during her manslaughter trial on Dec. 17, 2021.
Screenshot of Court TV video 2021

The Brooklyn Center police officer who said she confused her handgun for her Taser when she killed Daunte Wright will be sentenced Friday for manslaughter.

Kimberly Potter was convicted in December of first-degree and second-degree manslaughter in the April 11 killing of the 20-year-old Black motorist. Prosecutors say a sentence of just over seven years — the presumed penalty under state guidelines — is proper. Potter’s attorneys are seeking less, including a sentence of probation only.

Potter killed Wright after she and another Brooklyn Center officer pulled him over for having expired license plate tags and an air freshener hanging from his rearview mirror. Officers learned he had an outstanding warrant for a weapons possession charge and he pulled away as they tried to arrest him. Video shows that Potter shouted several times that she was going to tase Wright, but she had her gun in her hand and fired one shot into his chest.

Here’s what to expect at her sentencing:

What’s possible?

Under Minnesota statutes, Potter, who is white, will be sentenced only on the most serious conviction, first-degree manslaughter. That’s because both of the charges pertain to the same act and victim.

The maximum sentence for that count is 15 years in prison, but state sentencing guidelines call for much less. For someone with no criminal history, such as Potter, the guidelines for first-degree manslaughter call for a sentence ranging from slightly more than six years to about 8 1/2 years, with the presumptive sentence being just over seven years.

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The guidelines are advisory, but judges can't go above or below the advised range unless they find a compelling reason to do so. Prosecutors initially argued that aggravating factors should warrant a sentence above the guidelines. But this week, they filed another document saying the presumptive sentence is proper.

The defense is seeking a lighter sentence than the guidelines suggest, including one of probation only. In order for Judge Regina Chu to do that, she would have to find mitigating factors that show this case is significantly less serious than the typical first-degree manslaughter case. She has not yet ruled on whether there are aggravating or mitigating factors.

What do prosecutors say?

Prosecutors initially asked Chu to find aggravating factors. Specifically, they argued that Potter abused her authority as an officer and that her actions caused a greater-than-normal danger to others. There is nothing in the court record to suggest they have withdrawn that request.

But in a court filing Tuesday, prosecutor Matt Frank said the presumptive sentence would be proper because it “takes into account the main elements of the conviction: the death of Daunte Wright and Defendant’s recklessness.”

What is the defense’s position?

In asking for a lighter sentence than the guidelines suggest, Potter's attorneys argued that Wright was the aggressor.

“All Mr. Wright had to do was stop, obey lawful commands, and he’d be alive," they wrote.

They cite the federal case stemming from the 1991 beating of Rodney King as a comparison. They said in that case, a judge sentenced former Los Angeles police Sgt. Stacey Koon below federal guidelines for violating King's civil rights and found “the victim’s wrongful conduct contributed significantly to provoking the offensive behavior.”

Prosecutors had sought about 10 years in prison, but Koon got 2 1/2 years. Potter's attorneys wrote that the decision to depart from the guidelines in Koon's case was ultimately upheld by the U.S. Supreme Court. But one legal expert said they did not include other context: that the decision was fraught with controversy and led Congress to change the standard that the Supreme Court used to affirm Koon's sentence.

“It was a big downward departure, and at the time the sentencing guidelines were mandatory,” said Mark Osler, a former federal prosecutor who is now a professor at the University of St. Thomas School of Law. He said the defense's decision to mention that case “shows a certain blindness to the larger scope of history — they're citing to a downward departure that was rebuked by the Congress of the United States.”

Prosecutors said it was “incredulous” that the defense would use the case arising from King's beating to support their request for a shorter sentence.

In arguing for only probation, Potter’s attorneys said she has no prior record, is remorseful, has had an exemplary career and has the support of family and friends. They also said her risk of committing the same crime again is low because she is no longer a police officer, and that she would do well on probation.

Is only probation possible?

Yes, if the judge finds that there are mitigating factors.

Prosecutors have argued against a lesser sentence, including one of probation only. But they also said in a court filing that "the State recognizes that this is a unique case given the context in which Defendant Potter recklessly handled her firearm.”

Frank wrote that if the judge decides prison time isn't warranted, probation should be for 10 years and Potter should have to spend a year in jail. He also said she should be required to speak to law enforcement groups about the dangers of confusing a handgun for a Taser, and required to speak to Wright's family if they choose.

Frank said if Chu finds that Potter’s case is less serious than the typical first-degree manslaughter case, she should sentence Potter to between four and slightly more than seven years in prison, which would be the presumptive sentences for second-degree and first-degree manslaughter.

What will happen at the hearing?

One of Potter's attorneys, Paul Engh, said she intends to make a statement. Engh said the defense has also submitted a “heavy volume” of letters in support of Potter, and the attorneys plan to read some of them in court.

Prosecutors also plan to present victim impact statements, in which victims or family members can share how they have been affected by the crime.

If Chu finds there are no aggravating or mitigating factors, she’ll sentence Potter within the range of slightly more than six years to about 8 1/2 years.

Marsh Halberg, a Minneapolis defense attorney who isn't connected to the case, predicted Chu would stay within the guidelines because such a sentence would likely hold up on appeal.

“It’s kind of bulletproof,” he said. “Before anybody opens their mouth, the judge is in that guideline range box.”

How long will Potter serve?

In Minnesota, it’s presumed that an inmate who behaves well will serve two-thirds of their penalty in prison and the rest on supervised release, commonly known as parole.

That means if Potter gets the roughly seven-year presumptive sentence, she would serve about four years and nine months in custody before being paroled.

If sentenced to probation, she would be placed under conditions — violations of which could get her sent to prison.

Potter has been at the women’s prison in Shakopee since the guilty verdict. Nicholas Kimball, a spokesman for the state Department of Corrections, said she has been kept separate from the rest of the prison population.