Thursday, August 12, 2010

Defending the defense

Alternate title: Princess Helium and the Pathetic Bag of Wind

And now, for something entirely different.

In Koua Fong Lee’s motion, there were a couple of theories advanced about why a new trial should be ordered. First was the claim that there was new evidence about unintended acceleration in Toyota automobiles similar to the one that Lee was driving. Second was the clam that his original lawyer, Tracy Eichhorn-Hicks, provided ineffective assistance in trying the case.

I’ve said quite a lot about the unintended acceleration issue, and the prosecutor’s reaction to it, and nothing, really, about the ineffective assistance of counsel issue, because I am not sure that it is fair to tag Eichhorn-Hicks with that claim. The judge seemed to be willing to do that, but I have my own reservations.

My discomfort on this issue grew last Friday night, when on Almanac, Mary Lahammer interviewed Ron Meshbesher, a witness on the issue of ineffective assistance of counsel at the hearing. Lahammer is much better at searching expressions than searching questions, and she let Meshbesher prattle on about how absolutely, Eichhorn-Hicks screwed up. Eichhorn-Hicks should have been on this unintended acceleration business right from the get go.

Well, wait just a damn minute.

Several minutes earlier, the same intrepid reporter interviewed Emily Gurnon of the Pioneer Press. Gurnon, who had apparently covered the original Lee trial, said that she was listening to her car radio some time after the trial, and she heard, for the first time, about unintended acceleration problems in some Toyota models.

She put two and two together, and as a result, she called Lee’s new defense lawyer, and Koua Fong Lee is a free man today. (Lee apparently hired the new lawyer for the sentencing phase, where Lee got the eight years.) Well, good on her. One could not be anything other than elated by the scene that Jon Tevlin describes: Lee sitting in his living room in his bare feet eating popsicles with his kids.

But did it occur to Lahammer to say, “Wait a minute, Ron, nobody ever heard anything about unintended acceleration in Toyotas until after the trial. What about that?” Well, heaven forfend!

Such a question would, of course, come disturbingly close to actual journalism, so we can be sure that Lahammer wouldn’t ask it.

The accident involving Lee that ultimately took three lives took place in 2006; Lee was tried in 2007.

I invite you, however, to do an internet search for articles that go back to before the trial that discuss unintended acceleration in Toyotas. When you find older articles, they will look like this:

ROCKVILLE, Md. — Carol Mathews, 60, has been driving since she was 12 years old on a South Dakota farm. So when her 2002 Lexus ES 300 ran into a tree as she pulled into a restaurant parking space last fall, she was pretty sure she wasn't the problem. She says it was the third time the car lurched forward without her help.

Marlene Fett, 70, swears she hadn't touched the gas pedal when her 1988 Lincoln Town Car plowed into a carousel outside an Arkansas Wal-Mart in 1995. The crash killed 6-month-old Nathaniel Chapman and seriously injured his then-2-year-old brother, Jonathan.

Was it the car or the driver?

The question lingers 15 years after federal auto safety officials said so-called unintended or sudden acceleration was caused when drivers stepped on the gas instead of the brake. The National Highway Traffic Safety Administration's 1989 report was in response to well-publicized complaints that models sold by Audi and other automakers would take off on their own from a standstill, travel several feet and usually crash.

I encourage you, boys and girls, to try a search yourself.

Given the state of the public record — or rather the lack of it, really — of documented, proven cases of unintended acceleration at the time, it is unlikely that the trial judge would have permitted Lee’s original defense lawyer to argue unintended acceleration to the jury. The prosecutors would have argued that it was just tin foil hat stuff. Toyota wasn’t exactly getting the word out, either.

Given the fact there was no particular reason at the time to suspect the car, it also seems that there was little reason to conduct — and probably no money for — an extensive forensic examination of the car.

Remember, in his motion for a new trial, Lee had the benefit of experts who were also looking at Toyota unintended acceleration cases on the civil side, as well as a lawyer from Texas who was on Toyota’s case, so to speak. These people were not available to Eichhorn-Hicks when he tried the case originally, nor, apparently were they available to Lee’s new Minnesota lawyer immediately post-trial.

If the error was so obvious, why wasn’t it raised by Lee’s new Minnesota lawyer right away?

I save my outrage in this case for the prosecutors who remained unwilling to the end, to consider the new evidence, the epiphany, that everyone had about unintended acceleration risk after the trial.

I understand why the new defense team (which included the lawyer hired for the sentencing and who also did not raise unintended acceleration until much later), needed to raise the issue of ineffective assistance of counsel. I can even see why they hired Ron Meshbesher to testify.

But it was a small and ungracious thing for Meshbesher to pontificate on Almanac.

On the other hand, for Lahammer to listen uncritically? Well, that was just business as usual.

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