Judge Mabley fires back at Sensers in denying release

  • Article by: ABBY SIMONS , Star Tribune
  • Updated: September 27, 2012 - 5:10 AM

In denying Amy Senser's release during appeal, Judge Dan Mabley criticized the couple over conduct during and after trial.

A judge on Wednesday again rejected Amy Senser's bid for freedom during appeal, then let loose with candid criticism of Senser, her defense strategy and even her husband.

Hennepin County District Judge Dan Mabley accused Senser of repeatedly avoiding responsibility for the hit-and-run death of Anousone Phanthavong. He didn't spare former Minnesota Viking Joe Senser for a 16-minute rant Monday in which he defended his wife and accused prosecutors of manipulation and lies.

Mabley wrote that Senser and her attorneys have tried to argue the case in the news, continuing when Joe Senser "left the courtroom during arguments in order to address the media and vent his accusations of incompetence and dishonesty on the part of the prosecution."

The volleys highlight the tensions between both sides and left two Twin Cities attorneys divided about whether Mabley's comments were out of bounds.

"It's really irrelevant to his decision, and in my mind, it's just fanning the flames of anger and resentment on the part of the Sensers," said Joseph Daly, emeritus professor at Hamline University Law School and a onetime prosecutor and defense attorney.

But defense attorney Joseph Tamburino said that even though Joe Senser's speech occurred outside of the courtroom, it's still open to criticism, even from the judge handling the case. "He's addressing it in the context for how he believed the defense handled the press," he said. "It doesn't mean it's not fair game for other people, including the court, to comment on it."

Wednesday's decision means that the Minnesota Court of Appeals will continue considering Senser's appeal of her criminal vehicular homicide convictions. She's serving a 41-month prison sentence for striking and killing Phanthavong, 38, in August 2011, then leaving the scene.

Defense: Not surprised

In denying Senser's release, Mabley wrote that the appeal was "frivolous" and unlikely to succeed. He also said that freeing her could call into question whether she would show up for later court appearances or otherwise influence the case.

Defense attorney Eric Nelson, who filed the appeal last month, cited numerous motions denied by Mabley, a mistake in jury instructions and exclusion of potential defense evidence. Mabley countered in his order that "in the unlikely event errors occurred," they wouldn't affect the outcome of the case.

Nelson declined to comment at length on the order.

"The defense is not surprised by the court's decision," he said in a statement. "We will vigorously respond in our filings with the Court of Appeals."

The Hennepin County Attorney's Office declined to comment.

Freedom during appeal 'rare'

Mabley said that under the law, it is "extremely rare" for convicted felons sentenced to prison to be released pending appeal.

"Given the extensive publicity in this case and the public discourse around it, if the defendant was released on appeal, the public could well believe that she was granted favors because of her celebrity and perceived economic status," he wrote.

A jury convicted Senser in May of two counts of criminal vehicular homicide for striking and killing Phanthavong as he put gas in his stalled car on an I-94 exit ramp. Senser left the scene and admitted to being the driver more than a week later, claiming through her attorney and on the witness stand that she did not know she struck a person with her vehicle that night.

Mabley criticized Senser at her sentencing for "too many family secrets and not enough candor," a sentiment he partially echoed in his order, in which he criticized multiple moves by Senser. Among them, he wrote, were testimony that lacked credibility from six witnesses who were closely connected to Amy Senser; that she left town when authorities seized her sport-utility vehicle; that she threw out the clothing she wore the night of the crash; that she deleted text messages, and that she changed her hair color. He also noted that Senser allowed media and law enforcement to speculate that her stepdaughter, Brittani Senser, was the driver during the fatal crash until she was "coerced" to come forward.

"The theme of the defense from day one has been avoidance of responsibility," Mabley wrote.

An angry speech

Mabley's order followed a brief hearing Monday in which Nelson again argued for Senser's release. Afterward, Joe Senser addressed reporters in an emotional, sometimes angry statement in which he defended his wife and targeted Hennepin County Attorney Mike Freeman and Assistant County Attorney Deborah Russell, but didn't spare the media who covered the case.

Although Joe Senser did not elaborate, he claimed that prosecutors knew about a controversial jury note that was not disclosed until after the verdicts. Mabley countered in his order that the note's existence was revealed to both sides at the same time.

Nelson was not present when Joe Senser spoke to reporters, but said afterward that Senser's statements were likely the result of frustration with how Amy Senser was portrayed by prosecutors.

Abby Simons • 612-673-4921

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