The North Dakota Supreme Court on Tuesday reversed a former UND lecturer's conviction of theft of property and failure to appear and remanded the theft charge for a jury trial.

Benjamin Thong, who now teaches mathematics at the University of Minnesota in Minneapolis, was convicted in May of stealing cooked chicken from Super One Foods in January 2001 and failure to appear in court on Feb. 28, 2001, by the Grand Forks Municipal Court. Thong appealed, and the District Court upheld the lower court's judgment, before he made another appeal before the Supreme Court in September.

Posted on the Supreme Court Web site Tuesday, the opinion of the court by Chief Justice Gerald VandeWalle said that Thong was entitled to a jury trial as a result of his request on Feb. 14, 2001, and that the Municipal Court did not have any jurisdiction over the charge of theft after his request. For that reason, the Municipal Court's decision on Thong's conviction of theft was "void," and "there was no judgment to be appealed to the District Court."

Thong's conviction of failure to appear was dismissed. Because the Municipal Court lost jurisdiction over Thong's theft charge after Feb. 14 last year, the Supreme Court concluded that "there could be no reason or valid order for Thong to appear in Municipal Court on Feb. 28 on the theft charge. The Municipal Court was without jurisdiction to try Thong for failure to appear." Also, the Supreme Court reviewed the record and found insufficient evidence that a hearing was scheduled for Feb. 28, 2001.

Thong's attorney, Henry Howe of Grand Forks, said he was satisfied with the Supreme Court opinion.

"What happened to Benjamin Thong was a travesty and miscarriage of justice," he said. "And the Supreme Court has significantly acted to undo some of that."

Procedural nightmare

Howe said there was "an almost incredible denial of fundamental due process" to Thong as his case was dealt with in the Municipal Court and District Court.

He also called the process at the Municipal Court a "procedural nightmare."

The City Code cited for the charge of failure to appear turned out to be the penalty provision for snowmobile violations.

"There is no provision in the City Code for failure to appear except for traffic charges," Howe said. "And the city conceded that in the Supreme Court."

Race issueHowe also said he thinks Thong's ethnicity - Thong is from Vietnam and a naturalized American citizen - affected how he was dealt with in the Municipal Court.

"I'm not sure it would have happened had he been 6 feet tall and of Norwegian descent," Howe said.

He said Thong's speech pattern and social experience in Vietnam may have contributed to a negative reaction and misjudgment at the Municipal Court.

"Benjamin Thong was a respectable, responsible person," Howe said. "He defers to authority. He's courteous."

Theft chargeHowe said he e-mailed the Supreme Court's decision to Thong, who is traveling overseas.

Howe said he believed Thong's case involves some civil liability issues. But right now, Howe said, he is focusing on the theft charge, a Class B misdemeanor.

"In view of the errors and the problems with the case, it would be my hope that at this point they would do the right thing and drop the charges," he said.

After moving to Minneapolis last summer, Thong made several trips to Grand Forks after his conviction in Municipal Court. He had had two other attorneys in his legal struggle since last January, before hiring Howe for the recent appeal.

"Thong has already endured a year of turmoil and expense and uncertainty because of the process followed by the city court," he said.

But for now, everybody is waiting.

According to the clerk of court at the Supreme Court, Grand Forks has 14 days to file a petition for a rehearing. If it does not do that, the Supreme Court opinion will be final; a mandate will be issued, and records will be returned to the District Court in Grand Forks, which will schedule a jury trial for Thong.

Zhang reports on local and regional news. Reach her at 780-1267, or xzhang@gfherald.com.