Prosecutor: Senser jury's note irrelevant

The instructions that allowed a jury to convict Amy Senser of criminal vehicular homicide even though jurors believed that she didn't know she struck Anousone Phanthavong were proper and based on law that mandates she should have stopped anyway, the prosecutor in the case contended Thursday.

In a brief opposing the defense motion to toss out the verdicts, Assistant Hennepin County Attorney Deborah Russell argued that there was more than enough evidence to support the convictions and that a note from jurors about why they convicted Senser that surfaced after the trial is not relevant.

Both sides will argue their positions during a hearing scheduled for Thursday.

In her nine-page memo, Russell urged Judge Daniel Mabley to deny defense attorney Eric Nelson's post-trial motions filed last week, including a motion to overturn the convictions or grant a new trial.

She wrote that the jury instructions were not only agreed to by Nelson, but also accurate based on a two-year-old Supreme Court decision overturning a man's criminal-vehicular homicide conviction, on which Nelson based much of his defense.

That decision in the 2010 case of Mohammed Al-Naseer says that "a driver has an affirmative duty to stop in situations where there has been no bodily injury or death. For example, a driver has a statutory duty to stop if the driver has an accident involving an unattended vehicle."

"The defendant argues that there was no evidence [she] knew she hit a vehicle, but that argument misstates the law and jury instructions," Russell wrote. "As outlined previously, there is more than sufficient evidence that the jury could rely upon in finding that the defendant knew she had a duty to stop, most significantly, the profound damage to her own vehicle, as well as the noise generated by such a crash."

However, instructions in the case allowed the jury to convict her of the first two counts of criminal vehicular homicide -- for failing to stop and failing to immediately notify authorities -- if they believed she knew she caused injury, death "or damage to another vehicle." Senser was convicted May 3.

Days after her conviction, attorneys learned of a note that the jury wanted Mabley to read aloud when the verdicts were announced. It said, in part: "We believe she believed she struck a vehicle, not a person." Nelson also requested a special "Schwartz" hearing before Chief District Judge James Swenson to determine whether Mabley committed misconduct by waiting days to disclose the note. Nelson claimed in a brief supporting his motion that if he had known about the note before the verdicts were read, "potential confusion amongst jurors" could have been recognized, and the perceived error in the jury instructions could have been cleared up.

Russell countered that the note would not have resulted in a "reconfiguring" of the jury instruction because the verdicts had already been reached and that it's not a "substantive matter of law" because the jury was not asking for any information. Moreover, she said, jurors' statements to the media cited by Nelson about how they came to convict Senser are irrelevant and inadmissible. According to case law, she wrote, a verdict may not be reviewed based on information about what went on during deliberations.

Russell argued that there is no evidence to show that there was judicial or juror misconduct in the way the note was handled, and a hearing should be denied. "This court committed no judicial misconduct when it declined to read the note in front of [Senser], as requested by the jury," she wrote. "There was no improper contact between the court and the jury, as the court did not respond in any way to the request."

Senser is scheduled for sentencing July 9. She faces up to four years in prison.