Following the rather unusual hung jury in the case against activist Sean Thompson, accused of pieing ex-Sacramento Mayor Kevin Johnson last September in front of 100-plus people at a charter school fundraiser, the Vanguard spoke with attorney Claire White.
One of the unusual factors is that the jury told the court that they had reached an agreement – all 12 jurors – on the felony Penal Code section 217.1(a), assault on an official, but hung on the lesser included misdemeanor assault charge.
“What that means is that they reached a verdict on Count 1 which is not guilty, but they were unable to communicate that to the judge,” Claire White told the Vanguard. They kept saying they had a partial verdict. But the judge never required them to go in and fill out the verdict form. Instead, “He just declared a mistrial on all counts.”
Because of that, the DA still has the opportunity to retry the felony should they choose.
“We can appeal the decision,” Ms. White explained. That option is being discussed now. “There were a number of decisions that were in error, that being one of them.” They are waiting to see if the DA decides to retry or dismisses in the interest of judgment.
Claire White explained that certain assaults on a police officer, for example, require that the person be in their official duties at the time of the crime in order for the statute to apply.
This statute is different. “It just reads that the act has to be done in retaliation for or to prevent the performance of the Mayor’s official duties,” she explained. “Our argument was that (Sacramento County Deputy DA Anthony) Ortiz did not put on any evidence of what the Mayor’s official duties actually are and therefore how can we know that Mr. Thompson was acting in retaliation for them or to prevent them if we don’t even know what they are.”
She said it would not have been difficult to put that evidence on, but he failed to do so. “So that was a hole, essentially, that we played into,” she said.
The evidence put on to shown the defendant was retaliating for official duties “was a statement that Mr. Thompson made to the media when he was jail. In that statement he essentially made numerous grievances with the city, with Kevin Johnson, both as mayor and as a private person. It was kind of a hodge-podge of commentary.”
She argued to the jury, “[T]hat’s a long-time activist who is ranting essentially about numerous complaints… So how are we to know what his motivations were for this particular act?”
That was sufficient to convince multiple jurors of his innocence.
She added, “The truth is that statute is written really poorly. There is a vagueness to it that is essentially the fault of the legislature that, in my view, should be corrected.”
To act in retaliation for one’s official duties can be interpreted in many ways. “The axioms of the law (are) that it’s supposed to be specific, otherwise they can get anyone for anything,” she said.
Claire White told the Vanguard that she has not found a case where a pie in the face of a politician, kind of a long-standing prank, has been charged with a felony.
“Not in any of the cases I could find,” she said. “People who have pied other politicians or famous people are often charged with a misdemeanor battery, which was what Count 2 was in this case.”
She said the published cases of 217.1(a) were things like defendants in court physically assaulting the district attorney, punching them in the face or hitting them with a chair.
“I haven’t been able to find any published case in the entire country, let alone California, where someone, for throwing a pie, was charged with felony conduct,” Ms. White added.
Moreover, as she explained, 217.1(a) is actually a wobbler, meaning it could have been charged as either a felony or a misdemeanor. “When the legislature created this crime, assault on a public official, they necessarily intended that some conduct that meets these standards could or should be charged as misdemeanors.”
She said that “it really blew our minds that the prosecutor, the DA in this case, decided that this conduct was aggravating enough that it warranted a felony. Particularly in light of the beating that occurred afterwards.”
Given the severity of the beating that Mr. Johnson performed on Mr. Thompson, we asked if they had an explanation of why the former mayor wasn’t charged.
She explained, “Anyone has the right to defend themselves with appropriate force. I don’t think that anyone could argue that the Mayor’s response to the coconut cream (pie in the face) was appropriate.
“Deputy District Attorney Anthony Ortiz, in his closing argument, argued that the Mayor’s response was reasonable,” she said. “I made that a cornerstone of my closing argument that the District Attorney’s Office viewed Mr. Johnson’s response as reasonable.
“That’s the closest we got as far as a response from the district attorney’s office as to why Kevin Johnson wasn’t charged,” Claire White explained. No direct response was given to that question nor was it addressed at trial.
She pointed out that Mr. Thompson required nine stitches, and four of the punches to the face were done while Mr. Thompson was lying on the ground in a fetal position while the larger Kevin Johnson was punching him with both fists in the face.
“This was done in (front of) 140 witnesses, many of whom were children,” she added. Mr. Ortiz “made such a big deal out of the fact that Mr. Thompson engaged in the pieing at the fundraiser without acknowledging the fact that Mr. Johnson engaged in a severe beating at the fundraiser in front of these kids.”
Photos show that Mr. Johnson had blood on the sleeves of his shirt from the beating.
“The District Attorney hasn’t answered for why he hasn’t been charged,” she said.
None of the witnesses were questioned about the beating, photos were never taken of the mayor’s hands. There was no assault investigation at all on Mr. Johnson.
Claire White pointed out that just one day of testimony with 16 police officers on overtime cost the county in excess of $10,000 to put this trial on. “An insane amount of resources were used by the county,” she said.
“That they would go through this again speaks to their misaligned priorities of the county in general,” she said. “That the county would waste its resources to do a second felony trial when they couldn’t convict the first time around – I think that’s silly.”
Claire White said that Sacramento residents concerned about the use of resources should raise their voices to the district attorney about their opinion on the use of resources.
“We’re ready to fight this again,” she said. “We’re ready to throw more resources than we did the first time around.” She said they will not go to trial again without Mr. Thompson having a chance to face his accuser Kevin Johnson, whom they will put under subpoena to testify the next time around.
—David M. Greenwald reporting