Senser defense cites jurors' note, asks for verdicts to be thrown out

A perceived flaw in the instructions a jury used to convict Amy Senser of two felonies in a fatal hit-and-run is now the focus of her attorney's claims that she didn't receive a fair trial, according to a motion filed Friday urging the judge to throw out the verdicts that could send her to prison.

Defense attorney Eric Nelson's motion asks that District Judge Daniel Mabley find Senser not guilty of criminal vehicular homicide or grant her a new trial.

The motion's key argument is based on a post-verdict twist -- the discovery of a note from jurors who wanted to tell Senser why they found her guilty even though they believed her claims that she didn't know she struck and killed Anousone Phanthavong the night of Aug. 23.

Mabley should have shared the note with attorneys "to identify potential confusion amongst the jurors during their deliberations and recognize the error in the jury instructions," Nelson wrote.

The jury had been told to decide whether Senser knew she caused injury, death "or damage to another vehicle" and the jury's note explained that they convicted her on the latter part, even though she did not hit Phanthavong's car.

Nelson never objected to the "damage" instruction during trial, one reason it will be difficult to overturn the verdict, said defense attorney Joseph Tamburino, who is not connected to the case but observed much of the trial.

"This was an accepted rule of law throughout the trial, and there was never any objection to it," he said. "You're basically saying 'Judge, you got it wrong, I got it wrong, the prosecution got it wrong and the whole law is wrong, so give us a new trial.' And that's really tough."

"Ultimately, it's so potentially egregious that she simply could not and did not get a fair trial, and I think it shows the jury was very confused," he said. He added that he believes it unlikely that the motions would be granted, but that it presents a serious question should it come before the Minnesota Court of Appeals.

"Personally, if I were Judge Mabley, I would, at minimum, declare a mistrial or grant a new trial, but I might actually declare a new verdict," he said. "I think that's how bad that is."

Juror comes forward

The motion also included excerpts from media reports of a few jurors' opinions after the case ended, including an opinion piece Kathryn Richmond wrote for the Star Tribune, in which she wrote the majority of jurors did not have enough evidence to believe Senser knew she'd hit a person, but believed she hit "something more significant than a pothole or a construction barrel, and that she had left the scene believing she had hit a car," she wrote. "The majority of the jurors, however, did not have enough evidence to believe that she knew at the time of the accident that she'd hit a person."

Senser, 45, of Edina, was convicted May 3 of two felony counts of criminal vehicular homicide. She was found not guilty of a third count alleging gross negligence and convicted of misdemeanor careless driving

He also alleges "abuses of discretion" by Mabley, including his denial of a defense motion to allow evidence that Phanthavong had cocaine in his system at the time of the crash.

High court ruling key

The jury instructions in Senser's case were based on a two-year-old Minnesota Supreme Court decision that also served as the basis for her defense -- that Senser didn't know she struck a person.

In pretrial motions, Nelson repeatedly cited the high court's reversal of a man's conviction in a similar case where the state failed to prove that he knew he struck and killed a man changing a tire when he left the scene.

The Supreme Court's 2010 decision in the case of Mohammed Al-Naseer effectively means that prosecutors must now prove criminal intent by drivers who leave the scene of accidents.

However, evidence showed that Senser never struck Phanthavong's vehicle, and neither the prosecution nor defense argued that she believed she did.

Mabley has 30 days to hear the matter.

Senser is scheduled to be sentenced July 9. She faces up to four years in prison.

Note was substantive

The handwritten note the jurors handed to Mabley before the verdicts were read said, in part: "We believe she believed she hit a vehicle, not a person." The jury requested the note be read in court, but Mabley did not, and waited days before telling the attorneys about it.

"Ms. Senser's substantial due process rights were prejudiced by the court's failure to disclose this note as disclosure would have provided an opportunity for the parties to clarify the law and would have brought attention to the error in the jury instruction that had been given to jurors," Nelson wrote in the 35-page memorandum supporting the motion.

The error, he argued, is clear. Senser cannot be convicted for the perceived belief that she struck a vehicle, when she never struck a vehicle.

"In Ms. Senser's case there was no reason to instruct the jury that Ms. Senser knew she hit a vehicle; this is simply not the offense she was charged with," Nelson wrote. "Further, because there was no evidence that Ms. Senser did hit a vehicle, it would be impossible to establish knowledge for that element as one cannot have actual knowledge of doing something he or she did not do."

Nelson declined to comment Friday.