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In a split decision Thursday, a jury found a woman who denied throwing water on a San Jose police officer not guilty of resisting arrest, but convicted her husband of attacking the cop -- despite the man's claim that he was only coming to his wife's defense.

The verdict by a diverse jury -- it included an African-American woman and several Asians -- arose from a 47-second encounter between Officer Joseph Paolini and Marcos and Cindy Zuniga outside an upscale bar after midnight in downtown San Jose.

As the clerk read the verdict, Marcos Zuniga, a 39-year-old general contractor, put his head on the table and wept while his wife, Cindy, 42, wrapped her arms around him. Many in the audience dabbed at tears. Marcos is likely to face probation in the politically charged case, not a jail sentence, for resisting arrest and battery -- both misdemeanors.

The couple wound up on trial after a Saturday night in January 2009 that started calmly with Cindy Zuniga attending a book-club meeting, but ended violently with the officer shocking her twice with a stun gun and shooting her husband in the face with a 9mm.

The jury heard two radically different versions of what prompted the officer to resort to lethal force Jan. 18 in less than a minute. In the end, jurors appeared to believe some aspects of what the couple and their family and friends said happened, and some parts of the officer's story. None of the jurors would immediately comment.

But the apparent compromise -- achieved in less than a day of deliberations -- did nothing to comfort the Zunigas and their many supporters, who filled much of the courtroom during the three-week misdemeanor trial.


Outside the courtroom, prosecutor Stephen Poolos said he was satisfied the couple was given a "fair" trial. Poolos had essentially blamed the Zunigas and their friends and relatives for "very poor decision-making" fueled by alcohol, which left Paolini no choice but to use extreme but "reasonable force" -- in defense of his life. Poolos also put an eyewitness on the stand who testified that he saw the husband lunge at the officer, prompting the cop to shoot the man in self-defense.

"My goal in this case was a fair trial and I believe that's exactly what was achieved," Poolos said.

But the verdict raised concerns among some that police would view it as license to use excessive force. San Jose police have been under intense scrutiny about what some say is an overly aggressive street-policing style that research shows has led to racially disproportionate arrests and excessive force.

"I'm concerned this will embolden the department," said Roger Clark, a retired police officer and expert on police procedures who testified for the Zunigas. "This was way too much force."

The split result baffled the Zunigas' lawyer, who argued that if the jury acquitted Cindy, they also had to exonerate her husband because Marcos was lawfully resisting the use of "unreasonable force" against his wife.

"It makes no sense," lawyer Eric Geffon said.

But some legal observers said the verdict sends a clear message on at least one point: The jury saw the attempt to grab the officer's weapon as an unacceptable response, even to a perceived attack on a loved one. The officer testified he believed at the time that Cindy threw the water. Marcos also had not complied with an order by Paolini, before Cindy was shocked, to "face the wall."

Conflicting testimony about what prompted the officer to approach the couple in the first place and issue that order -- and whether the officer mishandled the situation by being too aggressive -- did not seem to phase the jury.

Nor did defense attorney Geffon's argument that the officer could very well have made a mistake in escalating the incident, but won't admit it for fear of being sued, prosecuted or hurting his career. The officer contended he was told by the bar owner that Marcos threatened to return with a gun, but the bar owner's story changed over time and never included anything about a gun.

According to a police report of an interview the same day as the incident, the bar owner said he told Paolini, "'This person is trying to start a fight. They won't leave.' And that was it." But on the stand, he said he told Paolini that Marcos threatened to come back and "stab" him.

Contact Tracey Kaplan at 408-278-3482.