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Continued: Senser jury must sift her intent out of facts

  • Article by: ABBY SIMONS , Star Tribune
  • Last update: April 24, 2012 - 8:48 AM

No one disputes that Amy Senser kept going after she struck and killed Anousone Phanthavong as he put gas in his car on a darkened I-94 exit ramp last August.

Her criminal vehicular homicide trial will hinge on why: Whether she knew she'd hit him and fled in a panic or, as her defense claims, didn't realize it as she drove around lost while trying to pick up a daughter from a concert.

Opening with jury selection Monday, Senser's trial culminates eight months of public scrutiny and media coverage stoked by details released in filings by both sides, each accusing the other of twisting the facts. The trial -- focused on the fatal moment when the suburban wife of a former Minnesota Vikings star came upon an immigrant chef who'd borrowed money to put some gas in his tank -- is expected to be one of the most closely watched in the Twin Cities in recent years.

Public opinion, seemingly swayed against Senser, prompted her attorney, Eric Nelson, to request, unsuccessfully, that her trial be moved to Kandiyohi County in western Minnesota.

"You have someone who is high profile, there are perceptions of economic differences, and in this day and age people are quick to judgment," he said.

Hennepin County prosecutors are expected to argue that Senser fled because she had been drinking or was under the influence of a controlled substance. The defense will contend that she never knew she hit anyone until she saw the news of Phanthavong's death the next morning.

No one has estimated how long the trial in downtown Minneapolis will last, but the potential list of witnesses stretches to more than 60.

Late charge: Easier to prove

Early on, two charges were lodged against Senser -- leaving the scene and failing to call for help. A third charge alleging gross negligence was filed much later, on April 13.

That third charge changes the dynamic of the trial because it can be proven more easily, said Joseph Daly, professor at Hamline University School of Law. While the first two counts could be difficult to prove to a jury, the third count is likely bolstered by stronger evidence, such as cellphone records that show Senser was on the phone at the time of the crash, and testimony from a crash reconstruction expert that Senser may have been driving 55 miles per hour on the exit ramp.

"The third count has some scientific evidence behind it with that CSI kind of flavor behind it that jurors like," Daly said. "In the end, it's going to be easier for the prosecution to prove that case beyond a reasonable doubt than it will the first two counts."

Under Minnesota law, each charge carries a maximum sentence of 10 years in prison. If Senser is convicted of all three counts, state guidelines call for a four-year prison sentence.

Assistant Hennepin County Attorney Deborah Russell has claimed in documents that evidence shows Senser likely "was under the influence of alcohol and/or controlled substance and fled the scene so as not to be caught."

Nelson contends Senser, 45, who suffers from migraines, got lost while on the way to retrieve a daughter after a Katy Perry concert that night at the Xcel Energy Center in St. Paul and never knew she struck Phanthavong, 38, who lived in Roseville.

Nelson based his legal argument -- that Senser didn't know she'd hit someone -- on the Minnesota Supreme Court's 2010 reversal of a criminal vehicular homicide conviction in the case of Mohammed Al-Naseer. The high court ruled that the state needed to prove Al-Naseer "knew he had been in an accident with a person or a vehicle."

Daughters could testify

Senser has made only four court appearances, but the case has dominated headlines with almost weekly court filings as Russell and Nelson have conducted paper warfare, each accusing the other of distorting facts and inflaming potential jurors.

The legal fights went as late as last week, when District Judge Daniel Mabley ruled on 16 motions from both sides, including a defense request that Senser's longstanding refusal to speak with police could not be used against her during trial. Mabley initially rejected the motion, but reversed it the next day. Based on other rulings, prosecutors won't be allowed to question witnesses about Senser's drinking habits. Neither will jurors hear that Phanthavong had cocaine in his system the night he was killed.

Senser's defense has listed 20 potential witnesses, including doctors and character witnesses. The state's list of 42 potential witnesses includes law enforcement personnel, other motorists from that night and others who interacted with Senser after the crash. Nelson would not say whether Amy or Joe Senser will testify. One of Joe Senser's daughters from a previous marriage, Brittani Senser, and two of the Sensers' younger daughters, aged 14 and 15, are listed as potential witnesses.

Two families, one tragedy

Despite the high-profile nature of the case, little has been reported about Senser, whose husband closed two of the restaurants he owned within the last year. Nelson described Senser as a stay-at-home mother who worked as an assistant funeral planner before leaving that job to pursue a professional license to handle insurance and funeral planning. She's fluent in Spanish and has competed in karate competitions as a second-degree black belt.

Nelson said Senser has received support from friends, family and strangers. She'll get second glances in public, but no one has confronted her.

For criminal and civil liability reasons, she hasn't apologized to Phanthavong's family, but has expressed her sympathy through her attorney.

Her focus now, Nelson said, is the trial. The worst possible outcome--potential prison time-- currently isn't Senser's primary concern, Nelson said.

"I don't know at this point that they've thought that far as a family," he said. "They have two daughters in high school and are trying to let their kids enjoy any sense of normalcy."

On Friday, Cindi Phanthavong, 27, wiped her eyes when she talked about "Bao Bic," her nickname for the uncle who, from a young age, sacrificed for his family. He stayed behind in Laos to care for his grandfather when the rest of his family emigrated to the United States. He arrived in the mid '80s as a teenager, and for years worked nearly every day at True Thai in Minneapolis' Seward Neighborhood. He was fiercely protective and loyal toward his family, she said, a friend and father figure to his younger niece.

Cindi Phanthavong, who is expected to testify at the trial, said she couldn't discuss the criminal case or the civil suit the family has filed against the Sensers. About a dozen family members will be there, she said. Some want justice; others just want it to be over.

"He's already at peace. I just want for my grandparents to be at peace and have this weight off their shoulders," she said during an interview at her attorney's office.

One day they could forgive Amy Senser, she said, if she took responsibility. She also wants people to remember her uncle as someone who was more than a victim of a crash involving a high-profile driver.

"He was a good man who died in a bad tragedy," she said.

Abby Simons • 612-673-4921

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