Kim Potter to testify in trial after jury hears fatal shooting was an 'action error' 1

Kim Potter to testify in trial after jury hears fatal shooting was an ‘action error’

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Ex-cop Kim Potter broke down and wept on the witness stand at her trial as she re-lived the moment she yelled ‘Taser! Taser! Taser!’ and shot Daunte Wright dead.

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Taking the stand Friday Potter recalled a how the April 11 traffic stop devolved into ‘chaos’ and ended with her grabbing her gun and fatally shooting the 20-year-old.

Her voice shaking and catching she said: ‘We were struggling, we were trying to keep him from driving away. It just went chaotic. 

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‘And then I remember yelling, ‘Taser! Taser! Taser!’ and nothing happened….and then, he told me I shot him.’

As she uttered the words Potter, 49, put her hands over her face and wept.

In the moments leading up to the shooting, she recalled, both her trainee Officer Anthony Luckey and Sergeant Mychal Johnson who arrived to provide back-up had told Wright that he was under arrest. 

Former Brooklyn Center officer Kim Potter broke down in tears as she testified in her trial Friday, hoping to persuade jurors to acquit her of manslaughter charges in what she has said was a gun-Taser mix-up

Former Brooklyn Center officer Kim Potter broke down in tears as she testified in her trial Friday, hoping to persuade jurors to acquit her of manslaughter charges in what she has said was a gun-Taser mix-up

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Potter became emotional as she recalled shooting 20-year-old Daunte Wright during a fatal traffic stop on April 11

Kim Potter

Potter became emotional as she recalled shooting 20-year-old Daunte Wright during a fatal traffic stop on April 11

Earlier in the trial, jurors were shown body cam and dash cam footage of the dramatic moment Potter shot Wright dead after 'accidentally' pulling out her gun instead of her taser

Earlier in the trial, jurors were shown body cam and dash cam footage of the dramatic moment Potter shot Wright dead after ‘accidentally’ pulling out her gun instead of her taser 

‘Officer Luckey had him put his hands behind his back…[he] started to say something about, ‘Don’t do that, Don’t tense up, Stop doing that,’ and then it just went chaotic,’ she said. 

‘I remember a struggle with Officer Luckey and the driver at the door, the driver was trying to get back into the car.

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‘I went around Officer Luckey as they were trying to get back in the door, and I was between the door and Officer Luckey.’

Potter did not use Wright’s name once, referring to him only as ‘the driver.’ 

She continued: ‘They’re still struggling, and I can see Sgt Johnson and the driver struggling over the gear stick because I can see Johnson’s hand.

Crying she recalled: ‘And then I can see his face. He had a look of fear on his face… it’s nothing I’d seen before.’

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Earlier, questioned by her attorney Earl Gray, Potter had recounted the events of the day.

Had she been alone and not working as an field training officer, she said she probably would not have stopped Wright.

It was her trainee, Officer Luckey who initiated the stop having seen an air-freshener hanging from the rear-view mirror and noting that the tags had expired.

Body cam footage showed a struggle ensued between Wright (pictured) and the officers while they tried to arrest him after learning during a traffic stop that he had an outstanding warrant against him

Body cam footage showed a struggle ensued between Wright (pictured) and the officers while they tried to arrest him after learning during a traffic stop that he had an outstanding warrant against him

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Dash cam footage showed the struggle that broke out between the officers and Wright, who had jumped back into his car while cops were trying to apprehend him

Dash cam footage showed the struggle that broke out between the officers and Wright, who had jumped back into his car while cops were trying to apprehend him 

Potter and her trainee, rookie officer Anthony Luckey initially stopped Wright for having an air-freshener hanging from his rear view mirror and expired tags

Potter and her trainee, rookie officer Anthony Luckey initially stopped Wright for having an air-freshener hanging from his rear view mirror and expired tags

When asked if she would have made the call to pull Wright over for such an offense if she was working alone, Potter replied: ‘Most likely not.’ 

Potter explained: ‘An air freshener to me is just an equipment violation and during the high covid times the Department of Motor Vehicles were so offline, people weren’t getting tags, and we were advised not to enforce those sorts of things because the tags just weren’t available.’

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But after they found that Wright had a bench warrant for a weapons violation, they were required, Potter said, to arrest him because the warrant ‘was an order of the court.’

Anthony Luckey, Kim Potter's trainee and witness to the shooting of Daunte Wright testified on the first day of trial

Anthony Luckey, Kim Potter’s trainee and witness to the shooting of Daunte Wright testified on the first day of trial

She said they were also required to find out who Wright’s female passenger was, because a woman – a different one, it turned out – had taken out a restraining order against him.

She told how a check showed that the licensed driver – Wright’s brother – had warrant for a minor drug offense.  

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A check on Wright himself revealed that he was driving with a suspended license and had an outstanding bench warrant for a gross misdemeanor weapons violation as well as being the subject of a protection order.

Luckey told her that that there was a heavy smell of marijuana from the car.

Potter told the jury that the weapon charge heightened her concern that there might be weapons in the car or on the driver.

Traffic stops were, she said, inherently dangerous which is why she stepped out to provide cover, ‘Sometimes there’s guns in the car sometimes, there’s uncooperative people, you don’t know who you’re stopping.’ 

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‘The plan was for Officer Luckey to get the driver into custody for the warrant and for us to find out from the female if she was the petitioner or the subject of the protection order,’ she said.

It was, according to Potter, her ‘duty to make sure she was not in harm’s way.’

Gray had begun his examination of Potter by trying to humanize her, putting her in the context of her family and upbringing. 

She was a wife of more than 25 years to husband Jeff, a mother to sons Nicholas and Samuel, a sister to two sisters and two brothers and a daughter.

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Her husband, mother, one of her sisters and one brother were all, Gray pointed out, present in court.

She wanted to be a police officer right from grade school, the court heard, after a police officer visited her elementary school, the Immaculate Conception in Fridley, Minnesota, to discuss bicycle safety.

He showed her, she said, that, ‘The police are good people and I wanted to be something like that someday.’

Earlier in the trial jurors watched footage showing officer Kim Potter panicking and screaming immediately after shooting Daunte Wright

Kim Potter reacts seconds after the fatal shooting

Earlier in the trial jurors watched video of officer Kim Potter panicking and screaming immediately after shooting Daunte Wright

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An emotional Potter was seen in bodycam footage screaming and burying her face in her hands moments after she fired her gun

An emotional Potter was seen in bodycam footage screaming and burying her face in her hands moments after she fired her gun

A fellow officer was heard in bodycam footage trying to comfort Potter, telling her to breathe and sit down as she cries saying she is going to prison

As the footage played on Potter could be seen standing at a wire fencing by the roadside repeating over and over, 'Oh my God, what have I done?'

A hysterical Potter could be seen in bodycam footage sitting roadside repeating over and over, ‘Oh my God, what have I done?’

Her whole life, jurors heard, was focused on working in law enforcement and she was sworn in as an officer of Brooklyn Center Police Department, February 27, 1995.

Building a picture of her life’s work Gray asked her to tell the court about her time as a Field Training Officer, a hostage negotiator, a member of the Domestic Abuse Response Team (DART) and her time with the Law Enforcement Memorial Association (LEMA) for whom she carried the caskets or urns of fallen officer.

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Asked by Gray if she knew any officers killed in the line of duty while doing a traffic stop Potter said, yes and names the fallen officer.

Potter, 49, is charged with first and second-degree manslaughter in the April 11 shooting of Daunte Wright

Potter, 49, is charged with first and second-degree manslaughter in the April 11 shooting of Daunte Wright

Potter told jurors that she had undergone therapy in the aftermath of the shooting and that while she had taken her taser out of its holster to de-escalate or prepare for what might be on the other side of a door, she had never deployed it in all her years as an officer.

She said that she had resigned from the job that she loved out of concern for her fellow officers and the city.

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‘There were so many bad things happening I didn’t want my co-workers [to have trouble] I didn’t want bad things to happen to the city.’ 

During cross-examination, prosecutor Erin Eldridge focused in on Potter’s training, alleging that weapons confusion was a subject addressed in ‘power point, after power point, after power point.’

Potter agreed that it was a topic that was raised but said that it was not something upon which trainers ever expounded.

Eldridge drew out the differences between Potter’s gun and her taser. 

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Displaying a picture of Potter’s gun and taser side by side Eldridge said: ‘They look different don’t they? The taser is yellow, your gun is black. The taser weighs about half what your firearm weighs.’

She also highlighted the fact that Potter carried her taser on her left, or non-dominant side,

Addressing the court Potter revealed that she had not always done so. She said: ‘In the beginning I carried it on my right side in a drop holster.’

She acknowledged that she had, however, carried her taser on her left side ‘for many years.’

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Eldridge asked: ‘The taser holster is made of plastic correct? And you have to press a button and rock it out. Your gun holster is made of leather and has a little snap and how does that gun come out of the holster?’

Potter replied: ‘It would rock forward and you would pull it up.’

Eldridge clarified: ‘A taser however you would rock backward and pull it up.’

The prosecutor described the April 11 traffic stop as ‘routine’ a point upon which Potter disagreed.

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‘No traffic stop’s routine,’ she said, ‘But it would have been something I’d have done several times.’

Eldridge questioned why Potter didn’t correct Officer Luckey when, as was pointed out in earlier testimony, he failed to walk Wright away from the open car door and towards the rear of the vehicle.

She said: ‘I wouldn’t do that to a rookie in front of a suspect.’

Showing dashcam video of Potter approaching the car and appearing to manipulate her holster Eldridge said:’You agree you unsnapped your gun holster as you approached.’ 

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Potter said that no she did not.

Zoning in on the moment where the stop descended into chaos Eldridge asked: ‘Was there a moment when it appeared that Mr Wright was going to flee or attempt to flee?’

Potter replied: ‘When he started struggling with Officer Luckey.’

Eldridge hectored: ‘You never saw a weapon on Mr Wright did you? You never saw a gun. He never threw a punch. He never kicked anyone. He never said I’m going to kill you. He never said, “I’m going to shoot you.”

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‘He never said, “There’s a gun in the car and I’m coming after you?”

Potter replied: ‘No’ to all.

Eldridge pointed out: ‘You don’t get to shoot’ someone just because they have a warrant. 

Potter said: ‘No.’ But when the prosecutor categorized a misdemeanor as ‘not serious,’ Potter bit back: ‘all crimes are serious.’

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Eldridge cast doubt on the idea that Potter was concerned for the safety of the female passenger because of the protection order saying, ‘fifty percent of the population is female aren’t they?’ noting that a protection order did not preclude being in the company of any female.

As Eldridge had bodycam video played in court Potter become more and more uncomfortable.

Eldridge drew attention to the moments when Potter took a piece of paper out of Wright’s hand and placed it in her own as Officer Luckey tried in vain to handcuff him. 

The bodycam played to the point where Potter could be heard shouting ‘Taser! Taser! Taser!’

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Potter began blinking and swallowing rapidly as the footage played. She tugged at her hair and was so clearly in distress that Gray stepped up and ask for a break.

Judge Chu asked Potter if she needed a break and she nodded yes prompting the judge to dismiss the jurors for their lunch break.

Before Potter took the stand, jurors heard testimony from an expert witness who told them Potter’s catastrophic mistake of drawing her gun instead of her taser was an ‘action error’ – a recognized hazard of high-pressure jobs and situations.

Clinical and Forensic Psychologist Dr. Laurence Miller took the stand for the defense Friday morning to explain what he said were the mechanisms at play in Potter’s mind when she shot Wright.

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He explained an action error as a situation in which ‘you intend to do one thing, you think you are doing that thing, but you do something else and only realize after the action that that action you intended is not the one you took.’

He told the court such behavior happens every day – writing the wrong date on a check at the turn of a new year, keying in an old password – and can usually be laughed off but that it is also common in the worlds of medicine, aviation and law enforcement in situations of high stress.

According to Miller memory works on two systems: 1 and 2. 

The first is reserved for information that we learn to the point of it being automatic and is, he said, constantly overwritten as new things become well learned. The second deals with more conscious thinking.

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The defense's first witness Friday was clinical and forensic psychologist Dr. Laurence Miller who explained the mechanisms at play in Potter's mind at the time was an 'action error'

The defense’s first witness Friday was clinical and forensic psychologist Dr. Laurence Miller who explained the mechanisms at play in Potter’s mind at the time was an ‘action error’

In this image provided by the prosecution shows the difference between a Taser and a Glock

In this image provided by the prosecution shows the difference between a Taser and a Glock 

Potter, a 26-year veteran in the force, claims she accidentally shot Daunte Wright when she reached for her gun instead of her taser during a traffic stop over his expired plates in Brooklyn Center, Minnesota

Daunte Wright, 20, was pulled over for having an air freshener hanging from his rearview mirror and expired license plate tags

Officer Kim Potter, a 26-year veteran in the force, claims she accidentally shot Daunte Wright (right) when she reached for her gun instead of her taser during a traffic stop over his expired plates in Brooklyn Center, Minnesota on April 11

An ‘action error’ occurs when stress factors combine to see the brain reach for a well-engrained ‘program’ that may not be the newest or most appropriate for the moment.  

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‘In most cases the factors usually involve an extremely compressed timeframe, high threat, confusing and changing circumstances,’ he said.

How does an officer use a gun instead of a Taser?

HOW FREQUENTLY DOES THIS HAPPEN? 

Experts agree that such incidents are rare and probably happen fewer than once per year throughout the U.S. 

A 2012 article published in the monthly law journal Americans for Effective Law Enforcement documented nine cases dating back to 2001 in which officers shot suspects with handguns when they said they meant to fire stun guns.

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WHY DOES IT HAPPEN? 

Reasons that have been cited include officer training, the way they carry their weapons and the pressure they feel during dangerous and chaotic situations. 

To avoid confusion, officers typically carry their stun guns on their weak sides – the side of their nondominant hand – and away from handguns that are carried on their dominant hand’s side. 

That’s how Potter carried hers, and the chief of her suburban Minneapolis police department at the time of the shooting said that’s how the department’s officers were trained.

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WHAT DOES THE DEFENSE SAY?

Defense attorney Paul Engh told jurors in his opening statement that an expert will testify about how in chaotic situations like this shooting, a person’s ingrained training takes over. 

He said Potter had 26 years of gun training, but fewer years of training on her Taser, which is a newer weapon.

Engh said they’ll hear that Potter made an ‘action error,’ the sort in which someone does something while meaning to do something else, such as writing the previous year on a check out of habit, or typing an old password into a computer. He also compared them with errors made under stress by experienced pilots or surgeons.

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Bill Lewinski, an expert on police psychology and the founder of the Force Science Institute in Mankato, Minnesota, has used the phrase ‘slip and capture’ errors to describe the phenomenon.

Lewinski, who has testified on behalf of police, has said officers sometimes perform the direct opposite of their intended actions under stress – that their actions ‘slip’ and are ‘captured’ by a stronger response. He notes that officers train far more often on drawing and firing their handguns than they do on using their stun guns.

Other experts are skeptical of the theory.

Source: Associated Press 

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‘The circumstances may be ambiguous and put all these things together and this creates a high state of arousal and agitation and that is the perfect storm for an action error.’ 

He told the court that weapon confusion is a subsection of these action errors with studies devoted to it. The doctor told jurors that the most common of these is confusing a gun for a taser.

He said that this was called ‘slip and capture,’ a phrase coined by a police psychologist.

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According to Miller: ‘It refers to the fact that, under these states that are conducive to action errors, the ability of system 1 to pick out the correct response slips away, and the actual behavior is captured by the older, more baked-in knowledge program, before the newer -more appropriate program – has a chance to engage.’

During the action itself, he said: ‘The person thinks they are performing one action when they are performing something else. 

‘Typically, what happens is it doesn’t have the intended result and they realize what they’ve done.’

He aid, that an officer may have little to no memory of what happened of very tunnel-vision, specific memories of aspects of it. 

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In a brief cross-examination prosecutor Erin Eldridge tried to characterize the notion of ‘action error’ and ‘slip and capture’ as ‘junk science.’

Once the defense has rested the prosecution is expected to mount a rebuttal case during which they will bring their own witness in a bid to debunk today’s testimony.

Potter, 49, fatally shot 20-year-old Daunte Wright after he pulled away from officers seeking to arrest him on a weapons warrant on April 11 in the Minneapolis suburb of Brooklyn Center. 

Body-camera video recorded her shouting ‘I’ll tase you!’ and ‘Taser, Taser, Taser!’ before firing once.  

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Besides arguing that Wright’s death was a tragic mistake, Potter’s attorneys have also said that she would have been justified in using deadly force to stop Wright from driving away and possibly dragging one of Potter’s fellow officers.

Potter’s chief at the time, Tim Gannon, testified on her behalf Thursday. Gannon called Potter ‘a fine officer’ and said he ‘saw no violation’ of policy by her in the traffic stop.

Gannon resigned two days after the shooting, saying he was essentially forced out because he wouldn’t immediately fire Potter. Potter resigned the same day.

Under questioning from Potter attorney Earl Gray, Gannon testified that he viewed body-camera video immediately after the shooting and dashcam video recently, and when he had ‘all the data in front of me, I saw no violation.’

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Prosecutor Matthew Frank jabbed at Gannon on cross-examination, asking him whether it was consistent with policy ‘for an officer to not know they have their firearm in their hand when they shoot it.’

Prosecutors argue that Potter was an experienced officer who had been thoroughly trained in the use of a Taser, including warnings about the danger of confusing one with a handgun. 

They have to prove recklessness or culpable negligence in order to win a conviction on the manslaughter charges.

Gannon testified that it appeared to him from dashcam video that Sgt. Mychal Johnson, who was assisting in the stop, was ‘leaning into’ Wright’s car. 

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He said it was his opinion that deadly force was reasonable.

Gannon recalled his own experience in a situation where he was dragged by a car. He said he felt ‘sheer terror’ and a feeling of ‘simply trying to survive.’

Gannon said Potter was known for handling calls, acting professionally and writing good police reports. 

He testified that she volunteered with a group that helped families when officers were killed in the line of duty. She also worked with domestic abuse victims and was a field training officer.  

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Prosecutors argued that Potter betrayed her badge and oath by using her weapon 'rashly or recklessly' on the day of the botched traffic stop

Prosecutors argued that Potter betrayed her badge and oath by using her weapon ‘rashly or recklessly’ on the day of the botched traffic stop 

A fellow cop is pictured on bodycam consoling Potter after she shot and killed Daunte Wright in Brooklyn Center, Minnesota

A fellow cop is pictured on bodycam consoling Potter after she shot and killed Daunte Wright in Brooklyn Center, Minnesota

Earlier Thursday, the defense opened its case with use-of-force expert Stephen Ijames, a former assistant police chief in Springfield, Missouri.

Ijames testified it was very unlikely that Wright could have driven away had Potter actually used her Taser. 

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That contradicted a prosecution use-of-force expert who testified earlier that using either a gun or a Taser on Wright would have made things worse because he could have been incapacitated and his vehicle could have become a weapon.

The defense also called several character witnesses for Potter who testified she is a peaceful person.

They ended their first day of testimony by calling four character witnesses: former colleague Officer Colleen Fricke, 40, family friend Thomas Hall, 23 former Brooklyn Center Police Sergeant and Potter’s one-time supervisor, Frank Roth and Brooklyn Center Police Officer Samuel Smith.

Each was limited to speaking only to Potter’s reputation for being peaceable and law-abiding due to an earlier ruling by Judge Chu.

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Potter is charged with first and second-degree manslaughter in the April 11 shooting of Wright.  

Prosecutors say Potter is a police veteran whose experience and training should have led her to realize her mistake in the several seconds between when she drew her gun and when she fired.

The prosecution have to prove recklessness or culpable negligence if they are to win a conviction on the manslaughter charges. 

The death of Wright set off angry demonstrations for several days in Brooklyn Center. 

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It happened as another white former officer, Derek Chauvin, was standing trial in nearby Minneapolis for the killing of George Floyd.  

CHARGES AND POTENTIAL PENALTIES IN KIM POTTER TRIAL: 

FIRST-DEGREE MANSLAUGHTER PREDICATED ON RECKLESS USE/HANDLING OF FIREARM AND SECOND-DEGREE MANSLAUGHTER: 

  • First-degree manslaughter in this case means prosecutors allege that Potter caused Wright’s death while committing a misdemeanor – the ‘reckless handling or use of a firearm so as to endanger the safety of another with such force and violence that death or great bodily harm to any person was reasonably foreseeable.’
  • The second-degree manslaughter charge alleges that she caused his death ‘by her culpable negligence,’ meaning that Potter ’caused an unreasonable risk and consciously took a chance of causing death or great bodily harm’ to Wright, while using or possessing a firearm.
  • Neither charge requires prosecutors to prove Potter intended to kill Wright.

POTENTIAL PENALTIES:

  • The maximum for first-degree manslaughter is 15 years; for second-degree, it’s 10 years. But Minnesota judges follow sentencing guidelines that normally call for less – just over seven years for first-degree, and four years for second-degree.
  • Prosecutors have said they will seek a longer sentence due to aggravating factors, which is what they did in former Minneapolis Officer Derek Chauvin’s murder trial for killing George Floyd.
  • The longest sentences that could conceivably stick on appeal are double the top of the guidelines range. But that’s more than the statutory maximum of 15 years for first-degree manslaughter, so 15 years would be the cap for Potter if she’s convicted. The realistic maximum on the lesser charge would be 9 1/2 years.
  • Presuming good behavior, Minnesota offenders typically serve two-thirds of their time in prison and one-third on supervised release.  

Source: AP 

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