A Sacramento judge declared a mistrial Monday in the felony assault trial against local activist Sean Thompson, accused of smashing a pie in the face of then-Sacramento Mayor Kevin Johnson at a charity event last September.
It was unclear Monday whether the Sacramento County District Attorney’s Office will retry the case. Prosecuting Deputy District Attorney Anthony Ortiz declined to comment following the decision, but word could come as early as June 8 when both sides return to Sacramento Superior Court for a procedural hearing in the case.
“What that means is that we’re going to keep fighting,” Thompson co-counsel Jeffrey Mendelman told reporters following the mistrial. “We think they’re going to continue to prosecute Mr. Thompson. This is not a case to continue to prosecute.”
The trial ended with the hung jury, but Thompson was upbraided as a disrespectful, unrepentant layabout by Sacramento Superior Court Judge Robert Twiss after the judge sent jurors home and flatly rejected Mendelman’s bid to drop Thompson’s felony charge to a misdemeanor ahead of a possible second trial.
“This has always been a felony because he assaulted a public official. It’s not misdemeanor conduct,” a stern Twiss said from the bench. Twiss added that statements Thompson made after the Sept. 21 incident that his act was not a crime but civil disobedience and that he would do it again if given the opportunity also rankled.
“The defendant’s behavior is a huge minus. His attitude is that he didn’t do anything wrong. I do not think he has the potential for rehabilitation,” Twiss said. “His attitude toward the criminal justice system is disrespectful. His attitude toward this jury is disrespectful.”
Thompson faced charges of felony assault on a public official and misdemeanor battery on school grounds in the Sept. 21 stunt at Sacramento Charter High School in Oak Park, the neighborhood where the NBA star-turned-city leader Johnson grew up.
Thompson saw his public pieing of Johnson at a benefit featuring schoolchildren, civic and business figures and local celebrities as an act of protest – “political theater,” his attorneys said – against a mayor who he said ignored homelessness in the city in favor of downtown development and business interests.
But pieing the unaware mayor triggered an ugly scene at the private event. Johnson retaliated with a series of punches that Thompson’s attorneys on Monday called “street justice,” bloodying the activist before Johnson was yanked away by his security detail.
“We can’t say we’re happy with the verdict. What we had faith in were 12 people from the community who say (Thompson) was not the assailant that day,” Mendelman said.
Jury forewoman Tina Alvarez said Johnson’s retaliation to the cream pie stunt, as well as Thompson attorney Claire White’s closing argument that stressed what White called a “brutal beatdown” of Thompson by Johnson, “swayed one or two of the jurors.”
Johnson did not testify. Prosecutors said they would not call him to the stand. Defense attorneys Mendelman and White, who was absent from Monday’s hearing, accused Johnson of ducking their many attempts to subpoena him to testify.
Mendelman said he and White will again subpoena Johnson to testify if prosecutors decide to retry the case.
Jurors had entered their fourth day of deliberation Monday after a confusing Friday when the panel announced it had a verdict, only to tell a judge moments later that it had yet to come to a unanimous decision on both main and lesser included criminal counts and needed another day to decide.
A day earlier, on Thursday, jurors told a judge they had reached an impasse and asked attorneys to better define the assault charge Thompson faced and clarify the breadth of Johnson’s official duties as mayor.
The extra day didn’t help. By mid-morning Monday, jurors remained hopelessly deadlocked as a frustrated Twiss awaited the news.
“Frankly, I don’t understand the inability to come to a verdict on something,” Twiss told attorneys outside the panel’s presence, conceding that “Sometimes, we have to take a step back and say, ‘Jurors aren’t lawyers.’”
Alvarez, the forewoman, voted to convict Thompson. She said she did not expect jurors to deliberate for nearly a week before throwing up their hands.
“It didn’t seem that it should’ve been this long. (Thompson) did it,” Alvarez said. “But two jurors had their minds made up from the get-go.”
But juror Mary Gaffney said she had too many questions to render a guilty verdict against Thompson.
“I was looking into everything as far as assault. ‘Assault’ is the threat of violence. I didn’t see proof of that violence,” Gaffney, who remarked that this was her fourth jury, said. “I think I needed more testimony. We needed the alleged victim here. No arresting officers (testified). (Johnson) wasn’t acting as mayor. I was trying to follow the facts.”