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Continued: Attorney seeks probation, not prison time, for Amy Senser

  • Article by: ABBY SIMONS , Star Tribune
  • Last update: July 3, 2012 - 11:36 PM

A "deeply remorseful" Amy Senser should receive probation, not prison time, for the hit-and-run death of popular Thai chef Anousone Phanthavong, her attorney argued with her sentencing less than a week away.

"Ms. Senser is heartbroken by the pain caused to Mr. Phanthavong's family and friends as a result of this terrible and tragic accident," Eric Nelson wrote in a memorandum accompanying a motion, which asks for leniency when Senser, 45, is sentenced Monday. "She struggles every day with the fact that she is responsible, albeit accidentally, for the taking of a human life."

State sentencing guidelines call for Senser to spend 41 months to 57 months in prison after a jury convicted her in May of two felony counts of criminal vehicular homicide for striking Phanthavong, 38, as he was putting gas in his stalled car at the Riverside Avenue exit ramp along Interstate 94 in Minneapolis, then leaving the scene. Senser, who said she thought she struck a traffic or parking cone, admitted to being the driver more than a week later.

In the memo, Nelson asks Judge Daniel Mabley to consider Senser's remorse, lack of criminal history and cooperation with probationary terms should he choose to impose a "downward departure," or a sentence below the guidelines. He also cited a similar case that resulted in a three-month workhouse sentence.

Assistant Hennepin County Attorney Deborah Russell will likely file a response by Thursday, Hennepin County attorney's office spokesman Chuck Laszewski said. Each side will argue the motion at the sentencing hearing.

Nelson's motion also includes two photographs that illustrate the public mockery Senser has been subject to, including an advertisement from a Minneapolis liquor store that reads: Even AMY SENSER Can See that's a GREAT DEAL!" and of a spectator at a Minnesota Twins game holding a sign that reads "TWINS U SHOULD GET AMY SENSER 2 SHOW U HOW 2 HIT AND RUN."

The memo is accompanied by 90 letters of support from Senser's family and friends. They describe her as a kind and thoughtful friend and neighbor before and after the fatal crash who has shown deep regret for Phanthavong's death. They urge Mabley to bypass a prison sentence in favor of probation and community service.

The letters come from as far away as Peru, where the aunt of a boy Senser took in for four months wrote: "A family was injured beyond repair. It doesn't seem right that another family is also destroyed by depriving them of their mother and wife."

Phanthavong's family will likely issue victim impact statements before sentencing.

Similar case

Nelson's motion requests that Senser serve her sentences at the same time, rather than consecutively, because the two felony offenses -- failing to stop and failing to call for help -- "arose out of a single course of conduct." Nelson's motion also argues that the criminal vehicular homicide statutes under which Senser was charged and convicted violate equal protection laws when compared to a 2010 case with similar circumstances.

Mark Wayne Lindgren fatally struck 85-year-old Dorothy Hanson in October 2010 after Hanson stepped onto Old Shakopee Road in Bloomington and into the path of Lindgren's pickup. The circumstances were similar to Senser's case: Lindgren left the scene and five days later turned himself in through an attorney, who led authorities to the pickup. He admitted to drinking a few beers that night and claimed he didn't know he struck someone. In a stipulated facts trial, Mabley found him guilty of felony hit-and-run. His sentence: three months in the Hennepin County workhouse. If he completes three years' probation, his conviction will be reduced to a misdemeanor.

Nelson argues that the Lindgren case is "remarkably similar" to Senser's and that she should be sentenced under the lesser statute. Comparing Senser's case to Lindgren's, Nelson writes that Senser "has met her burden of establishing that she was treated differently under the law than a similarly situated person."

The key difference in Lindgren's and Senser's cases is that Lindgren's accident wasn't considered entirely his fault, while charges against Senser imply that she alone caused Phanthavong's death, said Susan Gaertner, a former Ramsey County attorney now in private practice.

"In [the Lindgren] case, she walked in front of his car. He could have maybe been paying better attention. But I don't see how a prosecutor could prove that, but for his driving behavior, she wouldn't have died," Gaertner said. "Of causing on what led up to the crash, this case is very different from the Amy Senser case, even if the behavior afterward is the same."

'Sends a message'

University of Minnesota Law School Prof. Richard Frase, said judges can depart from sentencing guidelines both by or length or disposition, meaning whether prison time or probation is served. Judges tend to stay within the guidelines, he said, unless there are especially compelling circumstances.

If a judge decides to issue probation in lieu of prison time, they can make up to a year in jail time a condition of that probation. It could be possible, he said, considering Senser has no criminal history, but the high amount of publicity in the case could work against the Any Senser and her husband, Joe Senser, a former player for the Minnesota Vikings.

"In cases like this it is a bit unfair to the defendant who has the misfortune of being such a high-profile person," he said. "But the counterargument to that is whatever happens here sends a message to lots and lots of people."

Abby Simons • 612-673-4921

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