Ly Tong, who galvanized much of San Jose's Vietnamese community with his private war against communism -- a war that two years ago became very public when he attacked a singer from Vietnam while wearing a dress -- was sentenced Friday to six months in jail for the assault.
Despite recommendations of leniency from the Probation Department and even prosecutors, Tong proved to be his own worst enemy in court. Judge Andrea Y. Bryan mentioned Tong's attempt to "mock our system of justice" as she pronounced sentence. But because of the time he's already served, Tong will be spending 54 more days in the Santa Clara County jail.
Bryan said she found the probation report that called for "minimal" county jail time "overly lenient," and sent Tong back to the cell where he's been held for the past month. He faced a maximum of three years and eight months in jail, but many of his supporters -- including several prominent local politicians -- urged he be released immediately. Tong also received three years probation.
It was the culmination of a trial that featured cross-dressing and even fish dressing — as experts were called upon to testify whether fish sauce and perfume constituted a dangerous weapon. Dressed in drag, Tong confronted singer Dam Vinh Hung onstage at the Santa Clara Convention Center in 2010, dousing him with what the prosecution charged was pepper spray. Last month, Tong was convicted 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.
"Only people who suffered under communism will understand what he did, and why he did it," said Mai Nguyen of San Jose, one of more than 100 Tong supporters who showed up at the courthouse -- 36 of whom had driven all night on chartered a bus from Southern California. "We will never forget our history. The younger generation that was born here, they don't understand. He's a hero. Nobody else will do what he did."
Bryan seemed to want to make sure of that. Acknowledging that she was about to ignore the recommendations of attorneys on both sides of the case, and the official probation report, the judge said, "I'm not making this decision lightly."
Too dressy
She took clear umbrage to Tong's court appearance in the same dress he wore during the assault during final arguments, and cited a five-page letter he had written to the jurors in which, she said, Tong "showed no remorse for his actions, and has attempted to minimize his actions." She said his spraying stunt was "analogous to...a hate crime."
Tong's court-appointed attorney often struggled to rein his client in. He had asked the judge to release Tong on probation, without any further jail time, but before Bryan could impose sentence, she had to wait while Deputy Public Defender Daniel Portman and his client had a conversation that appeared, at times, to grow quite spirited.
With his fate hanging in the balance, Tong told his attorney he wanted to read his letter aloud -- the same letter that seemed to infuriate the judge -- and as Portman recounted it later, he was attempting to dissuade him. Tong never did read the letter, but the judge mentioned it so often, it almost felt as if he had. Asked if he thought the judge viewed Tong's letter as "defiant," Portman said that was a reasonable interpretation.
"In her view, he criticized the justice system," he said. Then, sounding a bit weary, Portman added, "He has a right to address the court as he pleases. But I didn't edit that letter."
Asked about the judge's rebuke of the cross-dressing stunt -- which had prompted his own lawyer to question whether Tong was competent to participate in his own defense -- Portman said, "I thought that was a little surprising."
The 63-year-old Tong appeared pale and gaunt as he was led into the courtroom in yellow jail coveralls. When Bryan acceded to the prosecution's request to have him jailed while he awaited sentencing, Tong launched another of his trademark hunger strikes. In 2008, he staged a hunger strike on the sidewalk outside San Jose's City Hall because he was unhappy the City Council had chosen the name "Saigon Business District" instead of "Little Saigon."
Hunger strike still on
Tong told his lawyer during the past month he had lost about 30 pounds in jail, where he was being monitored by medical staff. "What I worry about is that for 54 more days he will continue on his hunger strike," said Myphuong Le, a physician and member of the Committee To Support Le Tong. "That's what he told the community he would do in some letters we have."
She carried boxes filled with paper petitions of support to the courthouse Thursday, and in all, 6,778 signatures of support were sent to the judge. Councilman Kansen Chu wrote a letter to Tong, describing him as "a kind person of good character with a passion to serve." County Supervisor Dave Cortese, who is planning a run for mayor of San Jose, sent a letter suggesting to the judge that "additional incarceration is unnecessary."
"I think that demonstrates a significant level of support in the community," Portman said.
When jurors learned after they convicted Tong that he could serve more than a year in jail, at least one female juror submitted a letter to the judge requesting leniency.
"She talks about how gut-wrenching the decision was, and how hard it was for the jury to convict him," Portman said. "They felt they had to follow the law, but because it was unfairly broad, they had a hard time doing it."
One juror compared his crime to jaywalking.
But the judge wasn't having it. Taking obvious exception to his use of the term "freedom fighter," she stripped Tong of his freedom for the next 54 days.
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