Hung jury in cop assault case

SAN JOSE — A Santa Clara County judge Thursday declared a mistrial after jurors failed to reach a verdict in the second trial of a black motorist accused of assaulting a sheriff’s deputy with his car.

Prosecutors will now weigh whether to try Henry Sires for a third time, based partly on how many jurors voted this time to convict him of assault on a peace officer. The jury split 6-6 on whether Sires was guilty.

Last fall, a different jury voted 11-1 in favor of convicting Sires of driving his green Oldsmobile toward sheriff’s Deputy Steven Vandegraaf on a narrow mountain road overlooking the valley, prompting the officer to fire six times at Sires, who was struck once in the palm of the hand.

The case embodies both the safety concerns of law enforcement that suspects are increasingly prone to attack them and of minority residents who feel cops disproportionately subject them to deadly force.

Jurors, who deliberated for six days, had the option of convicting him of lesser crimes, such as simple assault on an officer. But they were required to vote unanimously that he wasn’t guilty of the assault on a peace officer charge first.

Sires will remain in jail until at least Wednesday when the Public Defender’s Office will ask the presiding judge to have him evaluated for possible release. At the time of the incident, there was a warrant out for Sires’ arrest on charges of vehicle theft and fleeing an officer in Milpitas. He has since been convicted of those charges and completed his sentence.

Sires, 35, faced a maximum of 10 years in prison if the jury of seven men and five women found him guilty.

On Wednesday, the jury foreman reported that the panel had reached an impasse. But Judge Andrea E. Flint, sent the jury back to try again.

In a sign of the intensity of debate, the jury Thursday sent a note to the judge asking what the word “probably” meant. The panel was referring to one of the elements that must be true for the panel to convict: “The defendant was aware of facts that would lead a reasonable person to believe that this act would directly and probably result in force being applied to the other person.”

Sires’ supporters, including local civil rights leaders, attended closing arguments last week, wearing black T-shirts with the slogan, “Protect Your People,” and listing Ferguson, Missouri, and other spots where unarmed black men and women have been killed in the past two years.

In closing arguments Aug. 9, prosecutor Barbara Cathcart contended that Sires’ car was coming right at Vandegraaf, prompting him to fire six times at Sires, who was struck once in the palm of his left hand.

“A reasonable person who sees a deputy (in his way) stops,” Cathcart had said.

But defense attorney Avi Singh argued that ballistics reports indicate Vandegraaf was on the passenger side of Sires’ car when he fired, not in the pathway of the car, which was going less than 5 mph.

“A car driving by is not an assault,” Singh said. “What the deputy did was super-dangerous.”

The March 25, 2015, incident occurred at a time of heightened tension between law enforcement officers and the communities they police. Less than 24 hours before Vandegraaf encountered Sires, San Jose police Officer Michael Johnson was fatally shot by a troubled white gunman on a routine call, underscoring what officers say are the risks they face in a dangerous job.

Sires’ current trial began last month after five officers were killed and nine injured in Dallas by a black veteran angry about police shootings of black men. Closing arguments in the case came on the anniversary of the Aug. 9, 2014, shooting in Ferguson of black teenager Michael Brown, which touched off the Black Lives Matter movement.

The confrontation between Vandegraaf and Sires began shortly before 11 a.m. on Sweigert Road in San Jose in a popular pullout overlooking the valley, where it was illegal to park, after a neighbor complained that a group of people was loitering and possibly “smoking drugs.”

Cathcart urged the jury not to consider whether the deputy overreacted when he fired the last few shots.

“He fired until he realized he was safe,” she said, adding that he did not fire into the back of Sires’ vehicle as it headed downhill.

The prosecutor also noted that she doesn’t have to prove that Sires intended to hit, injure or kill the officer for him to be guilty, merely that he saw the deputy in his path and kept driving. The fact that the deputy was not injured also doesn’t matter because under the law, he could well have been, she argued.

Singh noted that Vandegraaf had no idea Sires was wanted by the police at the time.