Amy Senser won’t be watching when her attorney pleads her case before the Minnesota Court of Appeals on Wednesday, nearly a year to the day from the guilty verdicts in a hit-and-run case that began with a man’s death on a darkened freeway ramp and resulted in a prison sentence.
Senser, 46, will remain within the walls of the Shakopee women’s correctional facility, nine months into a 41-month term for the death of Anousone Phanthavong in a case that continues to rivet Minnesotans as the three-judge panel prepares to hear oral arguments.
Attorney Eric Nelson, who defended Senser at trial, will bid to overturn her felony criminal vehicular homicide convictions. His key points: a lack of evidence that she knew she struck a person when she hit Phanthavong and left the scene that night, and alleged legal mistakes and abuses of discretion by the judge during her April 2012 trial in Hennepin County. Those include suppressing evidence that Phanthavong had cocaine in his system when he was killed and failure to disclose a note delivered with the jury’s verdicts that indicated potential confusion among jurors during their deliberations.
Lee Barry, the appellate attorney for the Hennepin County attorney’s office, will counter that the physical and circumstantial evidence against the wife of former Minnesota Vikings player Joe Senser is beyond ample to prove she knew she struck Phanthavong, 38, a chef at True Thai restaurant, as he was putting gas in his stalled car on the I-94 exit ramp at Riverside Avenue before she left the scene on Aug. 23, 2011.
Nelson directed authorities to the Mercedes-Benz sport-utility vehicle involved in the crash the next day, but Senser did not come forward as the driver until more than a week later, under pressure from her stepdaughter Brittani Senser, who was facing speculation that she was the driver of the vehicle that night. Phanthavong’s family settled a wrongful-death lawsuit with the Sensers before the trial began.
The panel of presiding Judge Kevin Ross and judges Margaret Chutich and Michael Kirk has 90 days to issue a written opinion in which they could uphold the convictions, reverse them or send the case back to Hennepin County. Nelson declined to discuss the appeal, as did the Hennepin County attorney’s office. Amy Senser declined an interview. She is scheduled for supervised release in October 2014.
Department of Corrections spokesman John Schadl said he can’t discuss Senser’s activities in prison, but confirmed that she has no disciplinary record. Senser, the mother of two teenage daughters and two adult stepdaughters, had Phanthavong’s name tattooed on her wrist before she was sent to prison and apologized to his family at her sentencing. But in denying a motion for a reduced sentence and later bid for her release pending the appeal, Judge Daniel Mabley accused Senser of repeatedly avoiding responsibility for Phanthavong’s death. In a sharply worded order last September, he also called the appeal “frivolous” and unlikely to succeed.
Reversal: ‘pretty tough to do’
Chances are slim that Senser’s appeal will be successful, said Scott Swanson, director of academic achievement at the University of St. Thomas School of Law and a onetime public defender who argued hundreds of cases before the state Court of Appeals. Namely, he said, it’s notoriously difficult to convince an appeals court to throw out a jury’s verdict, let alone in a high-profile case like Senser’s, where everyone is watching.
“Twelve people said beyond a reasonable doubt that she’s guilty,” said Swanson, who in 12 years successfully overturned one guilty jury verdict. “Reversing that, unless there’s something grossly unfair, is pretty tough to do.”
In this case, not much stands out that would prove Senser was given an unfair trial, Swanson said. In written briefs, Nelson has argued that Mabley erred in denying requests to change the trial’s venue, and that Mabley should have allowed certain defense witnesses to testify in support of Senser. Swanson said none present strong legal issues for the Appeals Court to debate, but that there may be a slim chance with a post-verdict twist — the handwritten note delivered by jurors just before the verdicts were read that indicated they believed Senser thought she hit a vehicle, not a person. The judge disclosed the note days later to both the defense and prosecution.
In its deliberations, the jury had been told to decide whether Senser knew she caused injury, death “or damage to another vehicle.” The juror’s note explained that they convicted her on the latter part, even though she did not hit Phanthavong’s car. Nelson argues in briefs that if Mabley would have shared the note at the time the verdicts were read, “the parties would have had an opportunity to identify potential confusion among jurors during their deliberations and recognize the extent of the error in the jury instructions.”
Note might be the only issue
Defense attorney Joe Tamburino, who is not involved in the case but observed much of the trial last year, said most of Nelson’s arguments are “non-starters” and likely won’t get off the ground with the panel. The issue surrounding the note and jury instructions has a chance, he said, but Senser’s own defense approved the instructions before trial.
“Could it happen, yes, but it’s a real long shot,” he said. “Ninety-nine percent of the time, if you don’t object to something at trial you can’t complain about it on appeal.”
Swanson agreed that the note and the issues surrounding it may be Senser’s only chance on appeal, but regardless of what it said, it doesn’t detract from the jury’s guilty verdicts.
“It’s one of the quirks of the judicial system. We let them decide but we really don’t want to know how they made the decision,” he said. “Do they go back there and follow the rules or not? We don’t know. But if all of them come back and say yes, that’s a very powerful thing.”
Although the Court of Appeals hears every case filed before them, the Minnesota Supreme Court has the discretion to grant or deny review of a case. Nelson declined to say whether he would petition the high court to hear the case should the Appeals Court uphold Senser’s convictions. Swanson said it would be another difficult hurdle for Senser’s team.
“If you don’t have new legal issues, the Minnesota Supreme Court is not particularly interested,” he said.