Ruling Could Give Boost to Defense in Penn Case

In a significant court ruling that could bolster his defense, Sagon Penn has won access to police records, citizen complaints and other potentially damaging information involving allegations of misconduct by the officer he is accused of attempting to murder.

The 4th District Court of Appeal ruled Thursday that Penn is entitled to obtain information regarding previous “acts of violence or aggression” by Officer Donovan Jacobs, in addition to any claims that Jacobs belonged to organizations advocating racial superiority.

Penn, 23, who is black, is charged with murder in the March 31 shooting death of Officer Thomas Riggs, and attempted murder in the shootings of Jacobs and civilian Sara Pina-Ruiz. Defense witnesses contend that Penn defended himself after he was beaten by the officers and taunted with racial slurs.

Penn’s attorney, Milton Silverman, has alleged in court papers that Jacobs kept illegal dossiers on blacks he had targeted for arrest while working in the San Diego Police Department’s Southeastern Division. Silverman sought police information regarding allegations of misconduct by Jacobs, but Superior Court Judge Kenneth A. Johns rejected the requests last month. Johns ruled that the allegations were unsubstantiated.

Silverman described Thursday’s ruling by the appeals court as “quite significant” and “helpful.”

“I think it will show the motivations of the participants,” Silverman said. “It’s a very important part of the case.”

The ruling, written by acting Presiding Judge Howard Wiener for the three-man panel, permits Silverman to question Officer James Stevens and Deputy City Atty. John Kaheny about some of the allegations lodged against Jacobs. A hearing has been scheduled for 9 a.m. Monday in Johns’ courtroom.

Silverman has alleged that Stevens and Jacobs are best friends and that Stevens was with Jacobs when they illegally stopped and photographed hundreds of black, Latino and Asian youths in Southeast San Diego. The ruling added that if Stevens confirms that the photographs exist, the prints should be turned over to the Superior Court for examination.

Jacobs has admitted in court hearings that he kept a file on suspected black gang members, a practice the former head of the Police Department gang detail testified was not authorized.

Kaheny was consulted concerning Jacobs’ participation in a paramilitary organization and has knowledge of documents relating to the group’s meetings, according to Silverman. The court ruled that Kaheny’s testimony must be limited to the documents.

Silverman’s requests to question San Diego Police Chief Bill Kolender and Officers Tom Hoenes and Howard Kendall were denied by the appeals court.

But the court gave Penn access to copies of any police reports regarding acts of violence or aggression by Jacobs; information concerning all cases dating back to March 31, 1982, in which Jacobs charged people with resisting arrest; and all complaints against Jacobs regarding racial misconduct or his membership in white supremacy groups.

Penn also is entitled to any information that may harm the credibility of Pina-Ruiz, including reasons why the Police Department rejected her application for employment as an officer. The court ruled that Johns must weigh the privacy concerns of Pina-Ruiz with Penn’s right to a fair trial before deciding whether to release the information.

Deputy Dist. Atty. Michael Carpenter said he does not consider the ruling a setback in his preparations to prosecute the case. He pointed out that the appellate court ruling gives Johns considerable discretion in deciding whether to release much of the information.

“Whether or not these things are ultimately given over to the defense still remains to be seen,” Carpenter said. “But whether they are or are not, we just want to get to trial.”

Carpenter had argued in court papers that the information sought by Carpenter was not relevant to the events that surrounded the March 31 shootings.

“What’s this got to do with anything?” Carpenter asked. “Even if (Jacobs) was a member of the Ku Klux Klan, is that going to change the testimony of the 50 people who saw what happened?

“Unless, of course, you want to . . . defame somebody’s character or show somebody is a bad person in the eyes of a jury to show that they are not worthy of being a victim of a crime.”