Putting aside their deep-felt sympathy and high regard for Vietnamese "freedom fighter" Ly Tong, jurors Thursday convicted him of all but assault with a deadly weapon for spraying a singer from Vietnam with a form of tear gas to protest communism.
At the request of the prosecutor, Judge Andrea Y. Bryan immediately had San Jose activist Ly Tong jailed.
The jury of eight men and four women acquitted the former South Vietnamese pilot of the felony assault charge, which would have counted as a strike under California's tough Three Strikes Law. But the panel found him guilty of two misdemeanors -- simple assault and resisting arrest -- and two felonies, including using tear gas and second-degree burglary with the intent to commit a felony. The trial was closely watched by Vietnamese communities from Orange County to Australia to San Jose, where 10 percent of residents are Vietnamese.
"All in all, Mr. Tong is a good guy," one juror said afterward. "Free speech is what this country is all about. He just stepped beyond that line."
Another juror expressed even more sympathy.
"It was like jaywalking to us, but we had to abide by the letter of the law," he said.
The verdict came so late Thursday afternoon that Tong's retinue of mostly elderly supporters was not in court as the expressionless crusader wearing a military jumpsuit and bomber jacket was led away.
Tong faces a maximum of three years and eight months in jail, though
The jury, which included two Asian-Americans but no Vietnamese, couldn't agree on whether the San Jose activist used pepper spray, or a mixture of perfume and fish sauce to assault singer Dam Vinh Hung on July 18, 2010, at the Santa Clara Convention Center. Either way, they agreed that neither spray was a deadly weapon. They also reluctantly concluded that the fish sauce-perfume mixture met the legal criteria for tear gas because it caused temporary discomfort to the singer's eyes and skin -- and he used it with that intent.
About half of the jurors thought he used one of the two canisters of pepper spray he brought to the concert. The others believed his goal was merely to humiliate the singer with the smelly Vietnamese condiment, as had happened to the performer before.
Tong claimed he brought the canisters only to defend himself against the "henchmen" of the pro-communist concert promoter in case they manhandled him after the attack. However, he sprung his fish sauce claim at the last minute while testifying at his trial, two years after giving interviews with Little Saigon TV and other media outlets suggesting it was pepper spray.
Tong is best known locally for enduring a monthlong hunger strike in 2008 to get a strip of Vietnamese shops on Story Road named Little Saigon, an homage to the former capital of his homeland.
Some jurors were dismayed to learn Tong could serve more than a year in jail and said they plan to write the judge to ask her for leniency.
Contact Tracey Kaplan at 408-295-3983.