How a Pioneer Press reporter helped free Koua Fong Lee

Pioneer Press columnist Ruben Rosario has a remarkable Koua Fong Lee column this morning celebrating his colleague, courts reporter Emily Gurnon. Under the headline “Justice gets help from reporter, not lawyers entrusted with it,” Rosario writes:

Lee went to the slammer. We forgot about him. But Pioneer Press courts reporter Emily Gurnon, who covered the trial, did not forget. She remembered the case as she listened to a radio news report about the massive Toyota recall scandal.

Gurnon contacted Brent Schafer, who represented Lee at sentencing after the initial defense attorney was fired by his family for what essentially would be proven as ineffective assistance of counsel.

Schafer and another well-heeled attorney, Bob Hilliard, agreed to take up Lee’s cause pro bono and followed through on the recall reports.

Rosario goes on to note prosecutors “essentially reamed” Gurnon for reporting exculpatory evidence. That evidence eventually won Lee, whose 1996 Camry killed three people in 2006, a new trial. Before the case was re-heard, County Attorney Susan Gaertner dropped the criminal vehicular homicide charges that kept Lee in jail for two years of an eight-year sentence.

In the end, Rosario’s column portrays Gurnon as the epitome of the Pioneer Press’s mascot, a justice-seeking bulldog.

So did Gurnon’s reporting result in Lee’s exoneration? Seeking more details, I talked to Schafer and Gurnon this morning.

Schafer says he was vaguely aware of the Toyota recall news as it swirled last winter, but he was in trial when the news hit so didn’t really focus on it. Gurnon called his office three times that week; he finally called her back on a Friday afternoon.

“She said, ‘Have you thought about this recall issue?’,” Schafer recalls. “Emily made the first call, and I give her a great deal of credit for remembering it. I think I would’ve come up with the connection regardless, but she spearheaded the entire thing.”

Although Rosario wrote that “Gurnon broke the news of the potentially new and troubling evidence that could lead to a new trial for Lee,” Schafer — regretfully — says that isn’t true.

A couple of days after they connected, Gurnon told Schafer that she had discovered Lee’s 1996 Toyota Camry still in the impound lot. “Emily wanted to break the story, but I asked her to wait a day to get my ducks in a row,” the lawyer remembers. “I had to write a letter to [government officials]; I wanted to make sure everybody didn’t touch the car. Then, all of a sudden, TV cameras showed up.”

Schafer thinks his then-partners may have tipped off Gurnon’s competition; in any event, at least one station broke the story on the 5 p.m. news. Gurnon had done the ethical thing and waited; if you want to know why journalists sometimes don’t, here’s one example why.

Says Gurnon, “He called me to say TV was on their way over there, so go ahead and run my story. I’d been putting information together for a week, so I had something fairly detailed. We put it on the website [after 5], and it ran in the paper the next day. I was a little disappointed about that, but it wasn’t about me.”

In any event, Schafer — who gave Gurnon specific credit in a news conference after the charges were dropped — says, “she was the first one to bring it to my attention, and I give her credit all day long. She was on it like a dog.”

Having ignited a story, Gurnon then had to manage it. There shouldn’t be a disconnect between a crusading reporter and a fair reporter, but any time sources perceive you “have an agenda,” they can use that to undermine coverage even if the facts tilt against them.

Gurnon, who covered Lee’s original trial, said, “I always felt the case had enough merit to be really seriously looked at, and also felt that, despite words to the contrary, that the county attorney’s office was more or less giving lip service to the idea of finding new evidence or seeking justice for Lee.”

But with those feelings, did that mean she’d put her own fingers on the scale of justice, favoring evidence that favored Lee?

“I did think about that a lot, and got a lot of flak,” from the county attorney’s office, Gurnon says. “I was reminded by them on several occasions that I needed to be fair, and I agreed with them on that. I responded to their criticism by bringing out other points in subsequent stories [see an example here], so I don’t think I turned a blind eye to their concerns.”

She says her bosses were consistently supportive. “They said, ‘Go get ’em,’ and I was pleased my stories got really good play. They put a lot on 1A, and of course, reporters love that.”

As for balancing professional opinions with professional reportage, Gurnon says, “It’s hard not to pursue what we feel is the ultimate right.”

Eventually, a judge, the victims’ family, and even Gaerntner agreed.

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Comments (5)

  1. Submitted by Kevin Slator on 08/11/2010 - 01:26 pm.

    Interesting that this post appears on the same day that the following news is reported: “Five months into an investigation of safety issues involving Toyota Motor Corp. vehicles, U.S. safety officials have yet to identify any new defects beyond those reported by the car maker itself.”

    And Mr. Lee’s Toyota was not even one of the vehicles (which were newer than his) that were suspected of suddenly accelerating. In light of that, it’s interesting (for lack of a better word) that Mr. Lee got the right to a new trial and that the county attorney dropped the case after so vigorously resisting the motion for a new trial.

  2. Submitted by Steve Sundberg on 08/11/2010 - 02:05 pm.

    @Kevin: Readings details of the hearings informed me that the prosecution made a big boo-boo by entering into evidence a claim that Lee’s vehicle was not equipped by an anti-lock braking system (ABS). (When a vehicle is ABS-equipped, it will not leave skid marks even when the brakes are slammed to the floor. “No skids marks” was entered as circumstantial evidence at the original trial, IIRC, as if to prove Lee did nothing at all to attempt to stop his vehicle.)

    But Lee’s Toyota was, in fact, ABS-equipped.

    So, really, the dismissal of charges and the decision to not go forward with a retrial probably had less to do with any specific Toyota mechanical problem than it did with the legal technicalities that were raised in the hearing wrt Lee’s original defense attorney, and the prosecution’s evidentiary errors.

  3. Submitted by Paul Udstrand on 08/12/2010 - 08:36 am.

    The standard is “beyond a reasonable doubt”.

    Lee always said he hit the brakes and was unable to stop the car. That indicates a brake malfunction of some kind. The case then hinges on whether Lee hit the brakes and they malfunctioned, or didn’t hit the brakes at all. When the state’s mechanics testify that a car with ABS brakes doesn’t have ABS brakes that creates a critical evidentiary flaw, it means the mechanical examination of the brakes was not done properly.

    Regardless of the nature of the possible mechanical malfunction, you can no longer accept the state’s evidence, hence the new trial. And of course Lee got some bad lawyering. Now if the brake system is the same type of system that later malfunctioned, the prosecution has a problem, the cat cannot be stuffed back into the bag, the defense is likely to produce reasonable doubt at this point since Toyota brake problems may have either gone unreported at the time, or may have been less wide spread. The prosecution ends up in an untenable position of having to prove a negative in order to get a conviction, they must prove the brakes didn’t malfunction. Right or wrong, knowing what we know now about Toyota brakes that’s gonna be hard to do.

  4. Submitted by James Warden on 08/12/2010 - 10:31 am.

    There are two issues here: The lawyer’s performance and the newspaper’s.

    Let’s take the latter first because that’s what the article is about. There may have been a presumption of innocence for Lee, but certainly not for Toyota. News coverage of the trial consistently ignored mounting evidence that the Toyota claims was overblown – to say the least.

    Articles were questioning the Toyota complaints at least as early as July:

    http://www.msnbc.msn.com/id/38278207/ns/business-autos/

    This Forbes article does a good job breaking it down:
    http://www.forbes.com/forbes/2010/0809/opinions-toyota-cars-acceleration-brakes-93-and-counting.html

    Yet there were few hedges in the articles — no reminders that no conclusions have been made on Toyota’s culpability — except to note that Lee’s car was an earlier model.

    Instead there were tales of witnesses at the trial testifying about runaway vehicle. An Aug. 8 Strib column even noted “witness after witness who testified to experiencing the same acceleration problems, in the same kind of car.” That’s a lapse, not something to be celebrated.

    That being said, it appears that the lawyer made some gaffes that justified a retrial independent of the Toyota’s performance. Maybe the fact that a retrial request happened at all still makes the reporter the catalyst. But I can’t see it has anything to do with Toyotas.

    (One question: Is the standard “beyond a reasonable doubt” for determining whether there should be a retrial? Obviously that was the case for the initial trial and would have been for the subsequent trial, had the prosecutors chosen to pursue one. But I thought there was a presumption that the first verdict was correct.)

  5. Submitted by Jo Marsicano on 08/13/2010 - 04:42 pm.

    This whole story has felt odd to me from the beginning. Maybe it’s because the news snippets I’ve heard haven’t done justice to the whole reality. But it seems strange that a person is now out of jail because of the mere possibility that his brakes failed, when it doesn’t seem like there was any actual evidence that the brakes failed.

    And in this whole saga, has anyone talked to the family members of the three dead people who Lee’s car smashed into? Lee claimed that he tried to brake the car but did he, himself, get it to go as fast as it did in the first place or is he blaming the car for that too?

    This is an example of what can happen when you have lousy legal counsel. The facts and the actual evidence get lost.

    The term “justice for Lee” is referenced here. What about justice for the victims? Their families? Have we forgotten that there are three dead people in all of this?

    I’m a criminal justice system reform advocate, big time. I think our system truly is contaminated from the inside out. And I’m usually the first to question the cops, criminal charges, the prison system, and every unjust thing that we throw at our ex-offenders once they’re out.

    But this case has my suspicions up.

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