Tuesday, June 15, 2010

Pay no attention to the man behind the curtain

Kuoa Fong Lee was sentenced to eight years in prison for vehicular homicide. He was involved in a rear end accident while driving his family home from church one Sunday about four years ago. Three people died (two immediately and one later) in the in the collision when Lee’s car traveled up the freeway off ramp, traveling as police estimated, between 72 and 92 miles per hour, and hit the car in front of him.

Lee said that he had pressed on his brakes, but nothing happened. The prosecution’s expert at trial (the guy in charge of supervising the oil changes for St. Paul police cruisers, if memory serves) said, “Nah, the brakes are fine.”

So the prosecution’s theory of the case is — and I am paraphrasing here — this guy just got off the boat; he must have been pressing on the accelerator instead of the brake. What a dope. And look at the dead people! [accompanied by lots of grisly pictures] You can go the link above to read more about the prosecution’s theory of the case.

Did I mention that he was driving a Toyota Camry?

Kuoa Fong Lee has a new lawyer, and in light of all the news about unintended acceleration and throttle sticking in some Toyota models, the Camry in particular, he had some additional examination of Lee’s car undertaken.

And guess what?

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.

There is also evidence, apparently not presented to the jury, that the brake lights were on when the collision occurred.

Ramsey County Attorney Susan Gaertner’s reaction to this is summarized in an email she sent to the media:

In an e-mailed statement to the media Wednesday summarizing her stand in the case, Gaertner said, "The fact that Mr. Lee may have braked before the crash is not inconsistent with the facts that led to his conviction, as he was convicted of gross negligence for failing to stop his vehicle and avoid the collision."

“Not inconsistent with,” that’s a key phrase here. She didn’t write “consistent with,” because remember, it was the prosecution’s theory that Lee was just a dumb immigrant who didn’t know how to drive and hit the wrong pedal.

But he did apply the brakes. And the model of the car he was driving has some history of unintended acceleration:

Lee's car was not equipped with electronic throttle controls that have been a focus in Toyota acceleration discussions. His Camry had a traditional gas pedal that controlled the throttle mechanically with a cable.

But some 1996 Camrys also were recalled for acceleration issues. Shortly after the new models hit the market, Toyota recalled 5,145 of them for cruise control equipment that failed "to hold the speed set by the driver, and can accelerate above the intended set speed."

Sean Kane, president of Safety Research & Strategies, a company which does research for trial lawyers, says he's struggled for a long time to get the public to believe that sudden acceleration is a real problem.

"People have been uniformly dismissed by law enforcement, government, the automakers," he says. "The consumer voice has been tamped down by everybody. But for the first time now, it's being taken seriously."

If “not inconsistent with” does not mean “consistent with,” what does it mean? What Gaertner means is “ignore it.” Pay no attention to the man behind the curtain, in other words. Like Dorothy, however, once you see the man behind the curtain, you’d can’t ignore him.

The evidence is entirely contrary to — actually “inconsistent with” — the prosecution’s theory of the case, a theory that it sold to a jury, and a theory for which Kuoa Fong Lee got eight years.

All Susan Gaertner is doing now is obfuscting and dissembling about what seems by all accounts a manifest injustice. Even some of the jurors think Lee should be released, knowing what they do now. (I cannot find the link to the Channel 9 website at the moment.)

This case is blot on the reputation of the Ramsey County Attorney’s Office; one that becomes more indelible with each passing day.

In the next day or so, I’ll tell the story of how a legendary prosecutor acted in another controversial case of new evidence.

Update: The evidence is entirely consistent with the story that Kuoa Fong Lee has maintained from the moment of the accident.

Further update: Here is a follow up post: Not Gaertner’s finest hour.

Yet another update: Mark Gislason links to an article in The Corpus Christi Caller Times about attorney Bob Hilliard who is working on Lee’s case with Lee’s new Minnesota attorney Brent Schafer.

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