Amy Senser jury's verdicts stand

  • Article by: ABBY SIMONS , Star Tribune
  • Updated: June 1, 2012 - 6:29 AM

In denying defense motions for an acquittal or a new trial, a judge said a note from jurors was "a complete nonissue." She will appeal.

The jury that convicted Amy Senser of two counts of criminal vehicular homicide spoke through its verdicts alone, and a note explaining why they did so after the fact is "a complete nonissue," a judge said Thursday in denying defense motions for acquittal or a new trial.

After about 45 minutes of arguments, District Judge Daniel Mabley refused to overturn the verdicts, reasoning that the instructions a jury used to convict her were accurate.

He also said the jury note sent just before the verdicts were read that indicated why they found her guilty for the hit-and-run death of Anousone Phanthavong, 38, reflected their understanding of the law, not confusion.

"A note which discloses the jury's reasoning or thought process should not be considered," he wrote in a memo explaining why he denied the motions. "Further, the information in the note did not impeach the verdict. In fact, it demonstrated that the jury properly applied the law in reaching its verdict."

Senser faces up to four years in prison when she's sentenced July 9. Her attorney, Eric Nelson, said he will appeal the felony convictions after sentencing.

Nelson and Senser, 45, declined to comment, while her husband, ex-Minnesota Vikings star Joe Senser, muttered angrily before storming out of the courtroom after the adjournment.

The family of Phanthavong, a popular chef at True Thai restaurant, watched the hearing with their attorney, James Ballentine, who settled a wrongful-death lawsuit with the Sensers before the trial began. Afterward, Ballentine lauded Mabley's order, which he called "a real education."

In upholding the conviction, Mabley rejected arguments by Nelson that the circumstantial evidence was not enough to prove Senser knew she struck Phanthavong when she left the scene.

The damage to Phanthavong's body, his own car and Senser's "was sufficient for the jury to find that Ms. Senser knew she had a duty to stop."

He also rejected Nelson's claims that he gave sufficient notice about the accident by telling police the next day that her vehicle was involved.

'You kind of blew it'

The heart of Nelson's motions filed two weeks after Senser's May 3 conviction was the jurors' note, which they asked Mabley to read in court. It read in part: "We believe, she believed she hit a car or vehicle and not a person."

Nelson argued that the note revealed a potential flaw in instructions that allowed the jury to convict her of the first two counts of criminal-vehicular homicide -- for failing to stop and failing to immediately notify authorities -- if they believed she knew she caused "injury or death to another person or damage to another vehicle." However, he argued that it shouldn't be possible to convict her for believing she struck Phanthavong's vehicle. Evidence during Senser's trial indicated that her Mercedes sport-utility vehicle struck only Phanthavong's body, not his vehicle.

"You can't know of something that doesn't occur," he said.

Nelson said Senser thought she struck a pothole or construction cone or barrel when she struck Phanthavong as he put gas in his car along the Interstate 94 exit ramp at Riverside Avenue on Aug. 23.

Prosecutor Deborah Russell countered that Senser knew she struck him, then likely panicked and fled.

Mabley did not read the note in court and waited four days to disclose it to attorneys, which Nelson claimed violated Senser's due-process rights. If Nelson had known about the note before the verdicts were read, he claimed, "potential confusion amongst jurors" could have been recognized and the perceived error in the jury instructions could have been cleared up.

"The difficulty I have in speaking to Your Honor is, Judge, I think you made a mistake," Nelson said during Thursday's hearing. "I think you kind of blew it there."

Russell countered that not only were the jury instructions accurate based on the law, but anything the jury says after it reaches its verdict is irrelevant.

Analyzing the note, or what it meant, "opens a huge Pandora's box," she said, one that goes against Minnesota law.

"This jury has rendered its verdict," she said. "Had they been confused about this issue, they would have asked a question."

'A jury speaks through its verdict'

Mabley said it's "extremely rare" for a judge to receive a note like he did, adding that it came just before the verdicts were read -- more than an hour after the jury signed off on the first felony count and an additional misdemeanor careless driving count, and more than a day after the jury signed off on the second. Senser was found not guilty of a third count alleging gross negligence.

The judge also denied a defense motion for a special "Schwartz" hearing to determine whether his delay constituted an error. Mabley said it was not necessary to disclose the note because it was a request, not a question of law for him to clarify.

He also rejected Nelson's claim that jurors' comments to the media indicated they reached the verdict for different reasons. Senser had an obligation to stop because she knew the accident involved injury, death or damage to another vehicle, he said. The jury doesn't have to unanimously agree on how the verdict was reached. All that matters, he said, is the verdict alone.

"A jury speaks through its verdict," he said. "A note which contains a jury's reasoning or thought process cannot even be considered by the court."

Abby Simons • 612-673-4921

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