Koua Lee makes his plea for a new trial

When the gavel drops Monday morning in room 840 of the Ramsey County Courthouse, Koua Fong Lee knows his future is now.

If his attorneys Brent Schafer and Bob Hilliard prevail at the evidentiary hearing, he could be released from prison, where he is serving eight years for criminal vehicular homicide, and reunited with his wife and four children pending a new trial. If they don't, Lee probably will go back to Lino Lakes prison until his scheduled supervised release date in February 2013.

Lee's case arose from a horrific collision in St. Paul on the afternoon of June 10, 2006. He was driving his family home from Minneapolis in a 1996 Toyota Camry. The car slowed as he took the Snelling Avenue exit off eastbound Interstate 94, but then sped up as he reached the top of the ramp.

Lee yelled to his family that the brakes didn't work. He sideswiped several other cars stopped at a red light, then slammed into the back of an Oldsmobile Ciera. The driver, Javis Adams Sr., 33, and his son, Javis Jr., 9, died at the scene. Adams' father, Quincy, and his daughter, Jassmine, were injured. Adams' niece, Devyn Bolton, was left a quadriplegic and died soon after the trial at age 7.

Although Lee insisted he had hit the brakes, not the accelerator, his trial attorney told the jury Lee probably mistakenly hit the gas pedal.

Lee's attorneys are seeking a new trial on the basis of newly discovered evidence and claiming ineffective assistance of counsel at his trial. Prosecutors, who proved Lee's guilt "beyond a reasonable doubt" at his 2007 trial, oppose a new trial. This time, the burden of proof "by a preponderance of the evidence" rests on the defense.

"I want to remind people that, unlike at a trial where it is our burden to prove the question at issue and produce witnesses to make that case, now that a conviction has been had, it is the defense's responsibility to produce any evidence that might put that conviction into question," County Attorney Susan Gaertner said.

But, she said, "The standard of proof necessary to raise a doubt about a previous conviction is lower than the standard to get a conviction in the first place. It's just another example of how the system and its rules err on the side of the defendant's rights."

According to Minnesota law, the court may grant a new trial based on new evidence if it can be proved that:

•The evidence was not known to the defendant or his attorney at the time of the trial. Although the issue of sudden unintended acceleration was reported earlier, it wasn't widely known when Lee was on trial in 2007, Schafer said.

•The evidence could not have been discovered through due diligence before trial.

•The evidence is not impeaching or doubtful.

•The evidence would probably produce an acquittal or a more favorable result.

The hearing before District Judge Joanne Smith begins at 9 a.m. Monday and is expected to last at least three days. She will rule on the motion for a new trial sometime after that.

When Toyota began its massive recall of newer model cars, in part because of sudden unintended acceleration, Schafer began looking more closely at his case. Lee's car was never part of any recall.

The heavily damaged Camry was reexamined April 20-21 by mechanical experts hired by the prosecution and the defense. Those men -- Wade Bartlett and Frank Sonye for the prosecution, and Richard Dusek for the defense -- are expected to testify at the hearing.

Assistant County Attorneys Mark Lystig and Mitch Rothmann also are expected to call Michael Churchich, a mechanic for the city of St. Paul who examined Lee's car after the crash and determined that the brakes were working properly. They also may call the previous owner of Lee's Camry.

"That individual drove the car for thousands and thousands of miles without any incident," Gaertner said.

Prosecutors contend "there is nothing about the condition of the vehicle that explains the horrific collision," she said.

Schafer has collected affidavits from more than three dozen people around the country who said they experienced sudden unintended acceleration. Sixteen are coming to St. Paul to testify, Schafer said.

"I don't think anyone is going to convince any of my people that they accidentally hit the accelerator," Schafer said. "These are people whose brakes started on fire, people who had others in the vehicle."

In Lee's appeal, Schafer also said Lee received ineffective assistance of counsel during the trial. He is waiting for opinions from other attorneys about whether they will testify on that issue, he said.

Schafer said last week that Lee is "nervous, obviously." But he's looking forward to the hearing "because people are going to realize it's not his fault."

Pat Pheifer • 612-741-4992