Lee case: Question of new evidence

From the start, the criminal vehicular homicide charge against Koua Fong Lee wasn't an open and shut case.

"Heavens, no," said Ramsey County Attorney Susan Gaertner. "It wasn't an easy decision for [the jury]. It wasn't an easy decision for us to charge him."

The case has only grown more complicated with time.

Lee, 32, is 2 1/2 years into an eight-year sentence for a crash in St. Paul in the summer of 2006 that ultimately killed three people and injured two others.

Lee's attorney, Brent Schafer, has been on a quest to get his client a new trial since shortly after news broke last fall about a massive recall of Toyota and Lexus vehicles because of sudden unintended acceleration.

They took a major step toward that goal last week when District Judge Joanne Smith granted them an evidentiary hearing, set for Aug. 2. The results of that hearing will determine whether Lee serves the remainder of his sentence or goes home to await a new trial.

For Lee, it's about more than getting out of prison and being reunited with his family, Schafer said. It's about vindication.

In a motion for post-conviction relief filed in March, he cited newly discovered evidence. It was amended in June to include ineffective assistance of trial counsel.

But prosecutors say what Schafer has isn't new evidence; it's coincidence. Despite an outpouring of public support for Lee and public criticism of the Ramsey County Attorney's Office, prosecutors have repeatedly said they oppose a new trial.

"Whenever you have a fatal collision, without drugs and alcohol, and you have to prove negligence, it becomes very difficult. There's not a lot of clarity in the law as to what 'gross negligence' is," Gaertner said. "It's a very high standard for the prosecution to meet.

"[So] the theory that this fatal collision was caused by sudden unintended acceleration is inconsistent with all the evidence at trial," she said. "It's that simple."

The crash

As he headed up the ramp, the car accelerated, sideswiping at least two other cars before slamming into the back of an Oldsmobile Ciera driven by Javis Adams Sr.

Adams, 33, and his son, Javis Adams Jr., 9, died at the scene. Devyn Bolton was left a quadriplegic and died shortly after Lee's trial at age 7.

Lee's pregnant wife, his 4-year-old daughter, his brother and his father were in his car. They were not injured.

Lee now has four children, ages, 8, 5, 3 and 2. The youngest two don't know their father and have shied away from him the few times they have visited him at the Lino Lakes prison.

Lee has maintained that he tried frantically to stop the car, but the brakes didn't work. But an inspection before trial showed that they were working. Over Lee's objections, his trial attorney, Tracy Eicchorn-Hicks, told the jury that Lee probably hit the gas pedal, not the brakes.

The appeal process didn't begin until reporters called Schafer in January, asking if the massive Toyota recall might apply to Lee's case.

Most of the recalled cars were 2008 to 2010 models with electronic acceleration systems rather than cable-controlled systems.

Lee's '96 Camry was the latter and was not part of any recall. But Schafer said he has more than a dozen people who own identical or nearly identical vehicles and have experienced sudden unintended acceleration. Those people have submitted affidavits to the court and are willing to testify, he said.

Conflicting reports

Mechanical experts hired by prosecutors and by the defense examined Lee's heavily damaged vehicle April 20 and 21 at the St. Paul police impound lot, near the river just south of Holman Field.

Wade Bartlett, one of the prosecution's experts, disagreed. He said it was the crash that caused the brake pedal to move "a short distance," therefore breaking the brake light filament.

"The best explanation for the event was that Mr. Lee was depressing the throttle as he approached the crash area," Bartlett said.

In addition, Gaertner said, neither Lee nor Eichhorn-Hicks ever brought up the issue of sudden acceleration during the trial.

According to Minnesota law, the court may grant a new trial based on newly discovered evidence if it can be proved that:

•The evidence was not known to the defendant or his or her attorney at the time of the trial.

•The evidence is not impeaching or doubtful.

•The evidence would probably produce an acquittal or a more favorable result.

Schafer's standard at the hearing will be proving those points "by a preponderance of the evidence," rather than the more strict standard of "beyond a reasonable doubt."

If the defense prevails, will the County Attorney's Office retry him?

"That question is very premature," Gaertner said.