A newly released note from jurors who convicted Amy Senser of criminal vehicular homicide indicates they believed her claims that she didn't know she struck Anousone Phanthavong on a dark Minneapolis freeway ramp.
But they found her guilty anyway because they believed she thought she had struck a vehicle -- a point never addressed during her seven-day trial and likely a key issue in post-conviction motions that her attorney will file next week.
The handwritten note, received by District Judge Daniel Mabley just before the verdicts were presented last week, said: "Can this be read in the courtroom in front of Ms. Senser? We believe, she believed she hit a car or vehicle and not a person."
It was signed by Shana Ford, the jury's foreperson.
Mabley did not grant the jury's request and did not share the note with attorneys for several days. It was placed in Senser's public case file after requests from reporters.
Senser's attorney, Eric Nelson, declined to discuss the note or its implications at length.
"The prosecution and the defense were surprised to recently learn of the jury's communication to the court prior to the verdict," he said. "We are in the process of filing post-conviction motions to address the ramifications of this issue."
But one noted criminal defense attorney said the note makes clear that the written instructions followed by the jury didn't match the laws under which Senser was charged.
"There is no evidence in this case that either she thought she hit a vehicle or that she hit a vehicle," said Joe Friedberg, who added that jury instructions are not the law. "The law is that you have to prove that she knew she hit a person."
A spokesman with the Hennepin County attorney's office declined to comment.
News footage subpoenaed
After nearly 20 hours of deliberation, a jury convicted Senser, 45, of Edina, for the Aug. 23 hit-and-run death of Phanthavong, 38, as he was putting gas in his car on the Riverside Avenue exit ramp off westbound Interstate 94.
Senser, wife of former Minnesota Vikings star Joe Senser, testified that she thought she had struck a construction cone or barrel that night. Prosecutors contended that she knew she had struck Phanthavong, panicked and fled.
She will remain free until her scheduled sentencing July 9 for two felony counts of criminal vehicular homicide and misdemeanor careless driving. She faces up to four years in prison.
This week, Nelson issued subpoenas to KARE-11, the Star Tribune and other news outlets for raw audio and video footage of interviews with jurors.
Juror Jameson Larson told the Star Tribune that the jury believed Senser's story did not add up with the evidence but made no mention of the jury's belief that she thought she had struck a vehicle rather than Phanthavong.
Note raises questions
The note and its ramifications raised key questions among local attorneys who have closely watched the case: Were Senser's due process rights violated? Was the verdict consistent with the law? Should Mabley have immediately shared the note with the parties?
Under Minnesota's jury instruction guides, a key element in proving each of the first two criminal vehicular homicide counts against Senser is that "the defendant knew the accident involved either injury or death to another person or damage to another vehicle."
Although damage to a vehicle was included in the jury instructions, the subdivisions of the statute under which Senser was charged include only "bodily injury or death," not damage.
Experts testified that Phanthavong's vehicle was not damaged, with the exception of a side mirror they concluded had been struck by his body.
For that reason, Hamline University Law Prof. Joseph Daly said, the jury's verdict could be impeached because Senser was unable to defend herself against something she didn't know was being alleged against her. That would result in a new trial.
"How could she defend that if she never even knew that she was charged with it?" he said.
Criminal defense attorney Joseph Tamburino said that although the note likely should have been shared with attorneys, it doesn't affect the verdict, which had been issued by the time the jury wrote it.
It's difficult to overturn jury verdicts, he said, and because the verdict correctly followed instructions -- regardless of what was argued in court -- it likely will stand.
"This is the funny thing with jury trials. Everyone focuses on one aspect, but there are obviously multiple aspects," Tamburino said. "The jury had a choice of whether Amy Senser knew she hit a person, vehicle or both. They went for door number two."
Abby Simons • 612-673-4921