Lý Tống, former South Vietnamese pilot, freedom fighter and human rights activist, on trial for assaulting a Vietnamese communist singer

San Jose "freedom fighter'' Ly Tong, 63, stands with his supporters while being videotaped outside the Hall of Justice on Thursday, May 10, 2012. (Dai Sugano/Staff)

A worldwide audience of Vietnamese immigrants will tune in starting Thursday to the trial of San Jose “freedom fighter” Ly Tong on charges he committed another anti-communist stunt — dressing up in drag and using pepper spray on a singer from Vietnam.

San Jose "freedom fighter'' Ly Tong, 63, lines up his supporters before a videotaping outside the Hall of Justice on Thursday to give an update of what transpired in his court case. The video will be distributed to Vietnamese-language ethnic media around the globe. (Dai Sugano/Staff)

Larry Nguyen (in wheelchair) waits with a crowd of supporters from the Vietnamese community at the Santa Clara County Hall of Justice in San Jose who were attending a bail hearing for Ly Tong on July 23, 2010. About 100 supporters showed up to attend the hearing in which Tong's bail was lowered to $75,000. Tong is an anti-communist "freedom fighter" accused of disguising himself as a woman and attacking a Vietnamese singer withpepper spray during a concert in Santa Clara in 2010.

Prosecutors are trying to treat the matter like any alleged felony assault — albeit under the unusually close scrutiny of Vietnamese enclaves from Orange County to Canada to Australia. Tong is the former South Vietnamese air force pilot who endured a month long 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.

But if Tong, 63, has his way, the trial will be anything but routine. Decked out in a green military jumpsuit and black bomber jacket, he reported earlier this week to the Hall of Justice while pretrial motions were being discussed, towing an entourage of supporters, including protesters proudly bearing the yellow and red flag of former SouthVietnam.

Tong appears to be pinning his hopes that the jury will acquit him of the charges stemming from the July 18, 2010, incident on the grounds that he was defending the refugee community against a representative of the repressive communist government of Vietnam.That day he donned a red skirt-suit and brown wig to confront singer Dam Vinh Hung at the Santa Clara Convention Center — 37 years after South Vietnam lost the war. The singer was able to resume the concert about 45 minutes later.

Dam Vinh Hung, Vietnamese singer and communist cadre

“Even the title of this case is wrong,” Tong said this week. “It shouldn’t be the People v. Tong, it should be Communists v. Tong.”

Complicated character

His cause may wind up striking many jurors as abstract or bizarre — if they even get to hear much about it. Judge Andrea Y. Bryan has set some limits and may further limit how much information Tong’s lawyer can present. It’s unclear whether the jury will learn, for instance, that Tong hijacked a Vietnam Airlines jet in 1992 and dropped 50,000 leaflets over Ho Chi Minh City. He was sentenced to 20 years in prison but released seven years later in a general amnesty. That incident and others are known by many in San Jose, which has 100,000 Vietnamese people who make up about 10 percent of the populace — the largest Vietnamese population of any city in the country.

But jurors, who will hear from character witnesses and Tong himself, may be more sympathetic to his crusade than normal because of publicity about blind dissident Chen Guangcheng’s mistreatment by the communist Chinese government. The Vietnamese government has been criticized by Amnesty International and other human rights groups for severely restricting freedom of speech and assembly, including imprisoning a blogger who cofounded the independent Free Vietnamese Journalists’ Club.

“What Ly Tong did was not a criminal act but a political protest,’‘ said prominent San Jose lawyer Minh Dovan. “I don’t always agree with everything he does, but I do understand his rationale even though I’m not an ultra right-wing, rabid, run-amok rebel rouser, or a former gulag inmate. The people who hate communism in our community are from the extreme right and the extreme left.”

Earlier this year, more than 150,000 people signed an online petition asking the Obama administration to link human rights with any expansion of trade with Vietnam.

Strong testimony

Ly Tong as he appeared disguised as a woman before a concert where he allegedly attacked a Vietnamese singer during a concert in Santa Clara. Tong is a self-described anti-communist freedom fighter. This copy photo was obtained from his girlfriend, Lamhoang "Aimee" Hoang on July 23, 2010 during a bail hearing for Ly Tong. (Photo courtesy of Lamhoang "Aimee" Hoang)

Regardless of the merits of Tong’s cause, the legal case against him is strong. He’s been charged with one misdemeanor count of resisting arrest and five felonies, including assault and second-degree burglary, and faces a maximum sentence of about five years. The judge ruled this week that jurors will get to hear that he boasted to police he paid $50 for a ticketto the concert and dressed like a woman to use pepper spray on a “communist cadre.” Prosecutor Deborah Hernandez also has a video taken with an iPhone by someone in the audience showing Tong approaching the stage, ostensibly to offer a flower to the singer.

Bui Kim Thanh protests in front of the Santa Clara County Hall of Justice in San Jose to support Ly Tong during a bail hearing on July 23, 2010. Tong is an anti-communist "freedom fighter" accused of disguising himself as a woman and attacking a Vietnamese singer with pepper spray during a concert in Santa Clara last week. Tong's bail was reduced from $100,000 to $75,000. (Gary Reyes /Mercury News)

The judge also restricted statements by character witnesses, including prohibiting a former South Vietnamese general and others from calling Tong a “hero” and “very patriotic.”

“I think this testimony would pull at the heartstrings of the jury, to somehow have the jury feel sorry for him,” Hernandez told the judge. “I don’t want that.”

The prosecution wants to avoid the slim chance of jury “nullification” — which is when a jury acquits a defendant despite evidence of his guilt because it believes a conviction would be unjust. Defense attorneys in California cannot ask the jury to do that directly, even though it is legal for the jury to nullify.

Defense attorney Daniel Portman wouldn’t reveal his strategy, but he clearly plans to present evidence of Tong’s good character, according to court documents. That could make it difficult for at least one juror to convict.

Nullifications are rare, but Palo Alto defense attorney Dan Barton said two of his cases in the early 1990s involving relatively minor charges against abortion-rights activists accused of unlawfully punching or shoving anti-abortion demonstrators resulted in nullifications. In Santa Clara County, they are most common in misdemeanor domestic violence cases.

“You can’t tell a jury, don’t follow the law,” Barton said. “But a good trial lawyer will create reasons for the jury to cut a person a break.”

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