Legal analyst weighs in on whether witnesses are helping or hurting the state’s case in Potter trial

Taser and use of force training dominated the testimony during Day 5 of the trial of former Brooklyn Center Police officer Kimberly Potter.

Prosecutors called two officers to the stand: Commander Garett Flesland and Sergeant Mike Peterson.

Flesland testified first. He explained Potter was a field training officer on April 11 and wore her Taser on her left side, he walked the jury through her Taser certifications and demonstrated for jurors the different ways an officer can pull a Taser from its holster.

During cross examination, defense attorney Earl Gray grilled Flesland about whether use of force was justified in this situation.

He asked, “Another officer is in the front seat laying over the passenger, trying to stop this guy from going, and [the driver] is ignoring the warnings ‘Taser, Taser, I’m going to Tase you’, you have a right to use deadly force to save that cop, that police officer that’s lying over the seat, correct?”. After Judge Chu overruled the state’s objection, Flesland replied, “Yes but I wasn’t there.”

The line of questioning comes just days after Gray elicited a similar response from former Brooklyn Center Police Sergeant Mychal Johnson.

On Friday, Gray asked, “Based on these videos and the conduct of Daunte Wright, as far as you’re concerned, and you were there, Potter would’ve had a right to use a firearm, right?” and Johnson responded, “Yes.”

The state filed a motion on Monday asking Judge Chu to strike Sergeant Mychal Johnson’s opinion on the use of force and limit future testimony as well.

On Tuesday morning, Judge Chu ruled that officers can testify about whether Taser-use or use of force was appropriate.

“I believe that the police officers due their training are entitled to render an opinion on that,” said Judge Chu.

The state painstakingly paged through training and policy documents as it questioned its two witnesses. The courtroom reporters noted at least one juror nodded off during the testimony.

“The state, in the last two days, seems to have decided because they got hurt so hard by Officer Johnson that if they bury the jury in information about how careful you’re supposed to be, that might be enough,” said Jack Rice, a Twin Cities attorney who is not affiliated with Potter’s case. “The problem is that jurors are people and they fall asleep and they get bored.”

During Sgt. Peterson’s testimony, prosecutors pointed out BCPD officers are trained to know the difference between a gun and a Taser.

“There’s a paragraph here about confusing a handgun with a Taser, correct?” asked Assistant Attorney General Matthew Frank. Peterson, who is an instructor, replied yes and confirmed it’s addressed during training.

In response to another question from Frank, Peterson testified that he is not aware of any other BCPD officers drawing their handgun when they meant to use a Taser.

“If I’m prosecuting this case, and I’m a former prosecutor, you think about what a witness can give the jury that will help your case,” said Rice. “Rather than move slowly and ploddingly towards it, you go straight out and you say there are three things that we’re going to talk about. […] The point is to create structure but to create evidence that matters. If you can’t grab this jury, it doesn’t exist. The evidence doesn’t matter if they don’t hear it.”

He said the state appeared to struggle with that approach on Tuesday.

“I think that they have actually made the defense’s case stronger, not weaker,” said Rice. “What’s really interesting to me now is that […] the defense even said very clearly, ‘Put Kim Potter on the stand’. The question now becomes: the state’s job was so poorly done, do you even put her on the stand? Except for the fact that you promised that you would – that’s the problem that the defense has right now.”