Judge grants St. Paul driver new hearing in fatal crash

A ruling Tuesday afternoon by Ramsey County District Judge Joanne Smith brought Koua Fong Lee, who is serving an eight-year prison sentence for vehicular homicide, one step closer to getting a new trial. Smith granted a defense request for an evidentiary hearing, which will be held at 9 a.m. Aug. 2.

"If we lose here, we go home," said Brent Schafer, Lee's defense attorney. "I always was confident we would get to this step and we would get a hearing, but you never know."

If the defense prevails, Lee's attorneys could ask that he be released from prison with or without conditions pending a new trial.

In a memo accompanying her order, Smith wrote, "This court finds that based upon the reports of Mr. Dusek [a mechanical expert hired by the defense to inspect Lee's car earlier this year] and the issues surrounding sudden unintended acceleration, Petitioner is entitled to an evidentiary hearing to further advance his argument for a new trial.

"In addition, Petitioner's claim of ineffective assistance of trial counsel can only be resolved through testimony taken at an evidentiary hearing."

Lee, 32, of St. Paul, is at Lino Lakes prison in connection with a crash in the summer of 2006 that ultimately killed three people. He has maintained from the start that the brakes on his 1996 Toyota Camry did not stop the car from accelerating and crashing into another vehicle stopped at a red light at the top of the Snelling Avenue exit ramp off eastbound Interstate 94. But his trial attorney at the time conceded at trial that Lee probably stepped on the accelerator instead of the brakes.

County Attorney Susan Gaertner said Tuesday, "I'm not surprised. I'm not concerned. The law is clear that if there is any doubt about issues raised by the defense that an evidentiary hearing should be held. We've always wanted the discussion to center on facts and evidence rather than media accounts and rumors, and an evidentiary hearing will provide that opportunity.

New life was breathed into the case earlier this year after Toyota recalled millions of newer vehicles. Those vehicles have electronic acceleration controls rather than a manually controlled throttle, as Lee's Camry had.

But Schafer, along with help from the Innocence Project of Minnesota, began collecting affidavits from owners of older-model Toyotas who said they, too, experienced sudden acceleration.

In March, Schafer filed a petition for post-conviction relief, seeking a new trial based on newly discovered evidence. In June, the petition was amended to include "ineffective assistance of counsel."

Lee's Camry, stored at the St. Paul police impound lot, was examined April 20 and 21. On June 30, the county attorney's office filed its response, opposing a new trial for Lee and arguing that there was no evidence that Lee's vehicle experienced sudden acceleration.

Schafer said he has "whittled" his witness list for the hearing down to 28 people, all of whom have owned 1994 to 1998 Camrys.

The defense must meet four criteria for the judge to order a new trial: that the evidence was not known to the defendant or defense counsel prior to trial; that no due diligence would have discovered that evidence; that the evidence is relevant and material, and had the evidence been produced, the jury probably would have delivered a more favorable verdict.

The judge has 90 days after the hearing to issue her ruling. It's unlikely to take that long, however, because, Smith wrote, "It is the Court's intent to hear and decide this matter as expeditiously as possible."