Recalls cast new light on Toyota crash case

By Peter Whoriskey
Thursday, August 5, 2010; 11:05 AM

After his Toyota Camry smashed at high speed into a car stopped at a traffic light four years ago, Koua Fong Lee told everyone he could that he'd hit the brakes. He was sure of it.

But not even his attorney seemed to believe him.

"Mr. Lee clearly had hit the accelerator instead of the brake," the attorney told jurors at Lee's 2007 trial for vehicular homicide.

The father of four is serving an eight-year sentence for killing two people. But this week in a high-profile test of the "Toyota defense," Lee's new attorneys in St. Paul, Minn., are arguing that an alleged defect in Toyotas that causes sudden unintended acceleration -- not human error -- might have caused the accident.

In the wake of the automaker's recall of millions of vehicles in the past year, Lee's attorneys are seeking a new trial during a hearing that has drawn dozens of demonstrators supporting Lee.

Defense attorneys have presented testimony and affidavits from 10 owners of 1996 Camrys -- the same year as Lee's -- who experienced sudden unintended acceleration while driving.

"Ever been on a runaway horse? It was like it was out of control," one of the witnesses, a San Diego woman said Monday.

"I could not stop it. I pressed down on the brake with both of my feet and used as much of my body weight as I could to try to slow the vehicle down," a Minnesota driver wrote to the court. "The brakes just smoked."

"The vehicle suddenly took off," another said in an affidavit. "It was accelerating by itself. . . . It kept going up to around 80 mph before I thought to throw it in neutral."

On Wednesday, defense attorneys built their case that if Lee had had a better attorney, he would have escaped conviction. But as in many cases of unintended acceleration, one of the central issues is what happened just before the crash.

What is uncontested is that Lee and family members, including a 4-year-old daughter, were driving home from church when he exited Interstate 94 in St. Paul. About 600 feet from a traffic signal at the end of the exit, Lee could have seen that an Oldsmobile Ciera, carrying another family, was stopped for a red light.

"When I step on my brakes, it's not working," said Lee, who was born in Laos and came to the United States from Thailand in 2004. "I continued to try to brake and I couldn't. . . . I was very scared because my brake was not working. . . . I yelled to my wife that the brakes were not working."

Police estimated that the Camry was traveling 70 to 90 mph at the time of the crash. The driver of the Oldsmobile, Javis Adams, 33, and his son Javis Jr., 10, died at the scene. His niece Devyn Bolton survived for a while as a quadriplegic but died at age 7 shortly after the trial.

The prosecution team, which opposes granting a new trial, says that more than 350,000 1996 Toyota Camrys were sold and that only a relative handful of drivers have complained that the cars ran away from them. They question whether the accounts of the 10 drivers are meaningful statistically, and they have raised doubts about Lee's driving ability.

"I do not believe this sample size is meaningful," said Wade Bartlett, a prosecution expert. He called the drivers' accounts "unsubstantiated stories."

Lee "was not an experienced driver; he had not driven and had not had a driver's license before he left Thailand," prosecutors wrote.

A Toyota spokesman declined to comment on the case.

One of the central issues is whether Lee accidentally stomped on the accelerator rather than the brake.

Defense attorneys note that examinations of the left brake light's filaments show that the brake lights might have been illuminated at some point during the accident, indicating that the brakes would have been on. Prosecution experts say the evidence is ambiguous.

Moreover, while prosecutors noted to jurors at trial that Lee left no skid marks, a defense expert said Tuesday that was because his car had anti-lock brakes.

Regardless, prosecutors say the facts point to Lee having stepped on the wrong pedal. "The most rational explanation for the cause of the crash was that offered at trial: He was accelerating at the time of the collision because he was pressing the accelerator," prosecutors wrote to the judge.

The prosecution was leaning on a view long espoused by automakers seeking to fend off blame, and by government regulators.

In 1988, the National Highway Traffic Safety Administration commissioned a panel of three experts -- consultants for the auto industry -- to study the issue of runaway acceleration. Its finding in 1989: "Pedal misapplication" was the major cause for sudden acceleration.

This became the agency's official position and shaped how every sudden acceleration probe was handled, including the government's past seven investigations into Toyota's vehicles, records show.

Automaker attorneys have used the 1989 finding repeatedly as formal evidence in dozens of civil cases to fight claims made by drivers who lost loved ones or were injured in auto accidents blamed on sudden unintended acceleration. It has also been cited by prosecutors in the Lee case.

"The government should be ashamed," said Tom Murray, an Ohio lawyer who has handled such cases against Ford and now Toyota. "They have had years to revisit that study, and every time they have been asked to, they have refused. Peoples' lives have been destroyed because of it."

In response to Murray's criticism, NHTSA officials pointed out that although requests to revisit the study had been denied, the agency, under pressure from Congress, launched two new investigations this spring to look into the causes of unintended acceleration. This work will include a review of the 1989 study.

Staff writer Kimberly Kindy contributed to this report.

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