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Xia Zhao, on her wedding day in 2005.

Eleven jurors were so certain accused killer Jason Cai was guilty of viciously gunning down a lawyer to prevent her from representing his late wife's family in a lawsuit against him that they implored a judge this week to remove the lone holdout on their panel for misconduct.

But 90 minutes after Judge Marc Poche ruled Wednesday there wasn't enough evidence to replace the juror with an alternate, the jury sent him its 17th and final note on the matter -- reporting they could agree only on one thing.

"We unanimously agree," the note read, "that we cannot agree on a verdict."

A mistrial was declared to the bitter disappointment of the victim's husband and father -- and to the 11 jurors, many of whom thronged the family outside the courthouse, sobbing and wailing, "I'm sorry," "I'm sorry," "We tried so hard." Some of the three men and eight women in the group of 11 had said Juror No. 6 had fallen asleep during the trial and refused to deliberate.

The jury's unusually public struggle and the subsequent mistrial was all the more extraordinary because it was the second time Cai was accused of killing someone -- only to avoid being convicted when a jury deadlocked.


Prosecutors immediately announced that they will try Cai again early next year on charges he gunned down attorney Xia Zhao on July 1, 2008, to prevent her from representing his late wife's family in a $15 million wrongful death lawsuit against him. In the interim, the murder charge stands and he will remain in jail.

In the first murder case against Cai, he was accused of the 2003 drowning of his wife. Prosecutors dismissed those charges after the jury acquitted him of murder but deadlocked on the lesser charge of manslaughter, largely because a coroner testified the drowning could have been accidental.

When his wife's family subsequently sued him for wrongful death, which requires a lower standard of proof, prosecutors allege Cai killed Zhao, the one lawyer on the case who could speak Mandarin. If he lost that case, the $250,000 in life insurance funds on Cai's late wife would have gone to her family.

Prosecutor baffled but undeterred

Deputy Public Defender Miguel Rodriguez, who represented Cai, could not be reached immediately Wednesday. No one from Cai's family attended the trial.

Prosecutor Brian Welch, who will try the case again, said he was baffled by Juror No. 6's decision to vote not guilty in the face of overwhelming, albeit circumstantial, evidence that Cai had stalked and threatened Zhao. He was accused of ultimately gunning her down in a parking lot at such close range that the gun muzzle left an imprint on her chest. A man who closely resembled Cai was caught on videotape immediately after the shooting fleeing down Hamilton Avenue, but he was never positively identified as Cai.

In interviews this week with the judge -- many behind closed doors -- jurors testified the lone holdout refused to adequately explain her decision. Many tried to make the case that she refused to deliberate at all, saying she hardly spoke during the post-trial meetings, and had expressed impatience with the process even before deliberations began, wanting it to be over "before August." One juror described her as "belligerent." Another said she accepted as fact only things that both attorneys agreed on, including that it was the killer who was captured on videotape.

The Mercury News obtained a transcript of the closed-door interviews Wednesday, the day after unsuccessfully raising constitutional objections to the public's exclusion.

According to the transcript, Juror No. 6 admitted she was "absolutely struggling" in the second week of the trial to stay awake. But she added she wasn't the only one.

"But then I think I saw you asleep at least once," she told the judge, "and I know I saw the deputy asleep."

The juror said she only dozed off once for a brief period of time. Another juror said he had to poke her awake twice during the trial, and several others said she appeared sleepy. But she said she started taking caffeine "all day" and quickly became alert.

Engaged in the process?

The jurors were mixed on whether Juror No. 6 participated in the deliberations. Some argued she didn't; some said she did, but only briefly. Several testified she listened to others' opinions, did not physically separate herself from the rest of the panel and volunteered her views during at least a third of the four days of deliberations.

Last year, the 6th District Court of Appeal noted jurors have the right to make up their minds quickly -- as long as they don't sit in a corner reading a book while the jury deliberates or otherwise disengage from the process. In that case, which also involved a Santa Clara County jury, the appellate court found the judge improperly dismissed a juror for failing to deliberate.

Poche said Wednesday that the California Supreme Court had raised the threshold for juror dismissal to a "very high standard of proof," requiring the record to reflect to a "demonstrable reality" that misconduct occurred.

"It is my judgment that standard has not been met," Poche said, sending the jury back to deliberate, ultimately to no avail.

The impasse ended shortly afterward when Juror No. 6 sent Poche a note saying the other jurors "insist we'll stay in deliberations until I explain my differing vote to their satisfaction. They don't want to change their votes but want to force me to change."

In a second interview -- this time in open court -- she told the judge she tried her best to articulate her position to the other jurors, but acknowledged her explanation may not have been entirely clear.

"I really believe there are 12 people with good intentions" on the jury, she said, "trying to act in good conscience."

But the outcome only added to the disappointment of Zhao's Chinese-born family in the American jury system.

"Why does it have to be unanimous?' her father asked. "Why, why?"

Contact Tracey Kaplan at 408-278-3482.