Posted at: 04/30/2013 10:06 PM
Updated at: 05/01/2013 10:26 PM
By: Mark Albert
Nearly a year to the day after her hit and run conviction, Amy Senser fought for her freedom from behind bars on Wednesday.
A three-judge panel heard oral arguments in her appeal as her husband, former Vikings player Joe Senser, and the family of the man she killed looked on in the gallery.
A key question at her criminal vehicular homicide trial, and now on appeal, is whether Senser knew she hit and killed a person when her vehicle struck Anousone Phanthavong on a Minneapolis interstate off-ramp in 2011.
The Hennepin County jury that convicted her actually sent a note to the judge before the verdicts were read on May 3, 2012, which stated: "we believe she believed that she hit a car and not a person."
Click here to see a copy of the jury note.
The prosecution and the defense agree there's no evidence Senser hit Phanthavong's vehicle.
On the second floor of the Minnesota Judicial Center on Wednesday, Senser's attorney, Eric Nelson, began to argue that "the jury's note is indicative of the fact that they did, in fact, believe her when she testified -," when he was interrupted by presiding Judge Kevin Ross.
"Well, that's the jury's note, but then there's the jury's verdict. I'm focusing on the jury's verdict," Ross said.
Nelson responded that the note shows, "They did not believe that she knew she hit a person. They thought she had hit a vehicle... It's a misdemeanor compared to a felony."
With the Phanthavong family and the Senser family, including Joe Senser, looking on, the appellate panel expressed its skepticism to both sides.
When the appellate attorney for the Hennepin County Attorney's Office, Lee Barry, stated that "the jury obviously chose to disregard (Senser's) testimony," on whether she knew she hit a person, Judge Ross asked: "There is no rational argument to be made from these facts that Ms. Senser was unaware that she struck a person or a vehicle?"
"Given that the jury has the power to decide credibility?" Barry responded, "Yes, that's my position."
The note, with its seemingly contradictory statement, was not revealed to either side until after the trial by District Court Judge Daniel Mabley.
"Wasn't it an abuse of discretion for the trial court judge, instead of notifying the attorneys about it, to basically not a say a word about that?" asked Judge Margaret Chutich.
Barry conceded that while "it may have been the better thing to disclose it," holding the note for four days until after the trial ended "clearly wasn't an abuse of discretion."
The Minnesota Court of Appeals has up to 90 days to issue a decision.
Winning a reversal of a criminal conviction on appeal is rather rare.
Last year, less than eight percent of defense appeals of convictions or orders were successful at the Court of Appeals (53 of 672 cases), according to figures provided by the Minnesota Judicial Branch.