Tuesday, June 29, 2010

Comes now the prosecutor

With a new expert.

Kuoa Fong Lee, who got eight years for a rear-end accident, petitioned for a new trial, and his new lawyer submitted the report of an expert who did more than have the brakes inspected at Midas. The case has been in the news many times, both since the accident and since Lee petitioned for a new trial. You could go here or here for summaries of the case here on the Stool.

The expert, Richard Dusek, found that the

"accelerator-to-engine-throttle cable and pulley system does not move freely, stays stuck and does not return to idle position." He said the throttle and cruise-control mechanisms were initially stuck together at the start of the inspection, which could have contributed to the failure of the release of the gas pedal to slow the engine.

In the first of the posts linked above, I mentioned there was also evidence that the brakes were being applied at the time of the collision.

Now, Susan Gaertner and the Ramsey County Attorney’s office has new experts, too, by golly. They really slam the cell door shut on Kuoa Fong Lee! Well, not really.

Neither the prosecution's experts nor an expert brought in by Toyota to observe the inspection dispute two other reports released previously that show Lee was, in fact, stepping on the brake, based on the condition of the brake lamp filaments.

But they appear careful to parse the issue.

"The damage sustained by the left brake lamp filament does not indicate how long before the impact the brakes had been applied... the brakes may have been applied very late in the scenario," Sonye wrote.

Or, he continued, "The deceleration forces resulting from the first collision (with the Oldsmobile) caused the brake pedal to move forward sufficiently to turn on the brake lights."

Bartlett [one of the new prosecution experts] agreed that the brake lamp circuit was "energized." [that means “on”] But, he wrote, that "does not indicate whether the driver's foot was on the brake and pressing intentionally, or the pedal was actuated by some other means, such as movement resulting from the collision ... or inadvertent contact by the operator's leg." [or maybe God pressed on the brake, but got there too late to do any good!] [italics are mine]

"It's almost embarrassing," Schafer [Lee’s new lawyer] said Monday. "It's like these guys got together and said, 'How else can we explain this?' I almost fell out of my chair when I saw that."

Bartlett is also — not coincidentally — on record as a sudden acceleration “denier.”

Shorter prosecution: “Lee was pressing on the accelerator. What, he was pressing on the brake? Okay, he was pressing on the brake, but he didn’t mean it.”

It cannot be said often enough that the prosecutors said unequivocally at trial that Lee (shown here in a Pioneer Press photo holding his little daughter while he talked to police about the accident) was not braking at the time of the accident, but that he was accelerating to upwards of 72 to 92 miles per hour.

There was a famous, and now deceased, trial lawyer named Louis Nizer. He had a rule — that he made up, I think, but it works — that he called the “rule of probability.” Here’s an exposition of the rule from an old newspaper article in the Modesto Bee:

Rule of Probability

There is another term for this: common sense.

A man is driving home in the middle of the day from church with his family, including the little daughter in the picture. No alcohol involved, but in an act of homicidal wantonness [meaning he was indifferent as to the outcome], he drives up the off ramp and accelerates and rams the car in front of him.

That is the prosecution’s theory of the case.

Unless you think that as an Asian, Lee doesn’t value human life the way we Caucasian people do, it’s an unbelievable stretch.

Now, the Gaertner gang has found experts who will speculate on theories that are “not inconsistent with” the conviction. They are just trying to explain away facts that a jury ought to at least hear. A competent defense lawyer could make reasonable doubt out of the prosecution’s own experts.

It would not surprise me that if a new trial is granted, the prosecutors won’t ever bother to retry Lee.

It really is time for the bullshit to stop.

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