Issue of Credibility Raised

Questions about police impartiality may be raised because of a San Diego police homicide investigator’s interview with Agent Donovan Jacobs in which Jacobs was assured that he was “not in any trouble” despite reports that he had beaten Sagon Penn before Penn shot him, The Times has learned.

Sgt. James Manis conducted the first police interview with Jacobs in his Mercy Hospital room eight days after the March 31 shooting. At the end of the talk, Manis told Jacobs he had nothing to worry about and that he would no longer need a private attorney to represent him, according to transcripts reviewed by The Times.

Jacobs declined the offer and insisted that his attorney continue to accompany him during any future interviews.

“No problem,” Manis responded. “I gotta tell you. I know you want him here, but believe me you don’t need him. I don’t mind him being here, but you’re not in any problem, OK? You’re not in any . . . trouble, and anybody who tells you you are is full of . . . . You’re not a suspect in anything, OK? You’re a witness and a victim.”

Penn’s trial is expected to bring out the contrasts between the way police investigators encouraged Jacobs and handled Penn during interviews. Police interrogated Penn over a period of several hours the night of the shootings without informing him of his constitutional rights to remain silent and consult an attorney, according to court documents.

The credibility and impartiality of Manis and other San Diego police investigators is likely to be scrutinized during the trial, which begins Wednesday. Some defense witnesses have denied making statements attributed to them by detectives.

Manis, a 22-year police veteran, investigated the events that led to the fatal shooting of Agent Thomas Riggs and the wounding of Jacobs and Sara Pena-Ruiz, a civilian passenger who accompanied Riggs.

Based on statements from Manis and other investigators, San Diego Police Chief Bill Kolender has said there is no evidence of improper conduct by Jacobs or Riggs prior to the shootings. Kolender said his internal affairs unit has not looked into statements by witnesses that Jacobs stood above Penn, who was sprawled on the ground, and said, “You think you’re bad, nigger? . . . I’m gonna beat your black ass.”

Penn, who is charged with murder and attempted murder in the case, contends that he acted in self-defense after Jacobs threatened to beat him.

Both Kolender and Manis declined to comment on the police investigation.

Prosecutor Michael Carpenter defended the statements made by Manis during the Jacobs interview. He said that Manis was attempting to get Jacobs to trust him and at the same time get his attorney out of the room.

“I think it is a reasonable tactic to take,” Carpenter said. “Why is it so unusual to say nobody is coming after you? Doesn’t it promote candidness? . . . (Manis) has to use some means to get (Jacobs’) confidence.

“I think patrol officers, generally speaking, are somewhat suspicious of detectives. . . . I don’t think (Jacobs) would have complete faith and trust in Manis. I think that is something Manis would have to build up with him.”

However, a veteran police administrator and former investigator working for a large California city told The Times that Manis conducted himself improperly when he informed Jacobs that he was innocent of any wrongdoing.

“A criminal investigator has the responsibility to question a police officer just like he was talking to anybody else,” said the police official, who asked not to be identified. “I don’t think he should have made those statements. He wasn’t through with his investigation. . . . It was certainly inappropriate for him to do that.”

Manis’ conduct as an investigator is certain to become an issue at the trial. During a May preliminary hearing, Manis testified that he interviewed Junius Holmes, one of seven passengers in Penn’s truck that day. Manis said that Holmes told him during the interview that he heard Penn state, “You’re a witness” to Pena-Ruiz before he fired two shots at her through a police car window.

However, at the same hearing, Holmes testified that he did not hear any words spoken by Penn before he shot Pena-Ruiz. Manis destroyed his notes of the Holmes interview, according to court papers.

Manis had to wait until April 8, when Jacobs was taken off the critical list, before he could conduct the Police Department’s first interview with the wounded officer. Jacobs agreed to answer questions under two conditions: that his attorney sit in on the interview and that police promise that none of his statements could be used against him in court.

A source permitted a Times reporter to listen to a tape recording of the first police interview with Jacobs and read a transcript of the interview.

Before Manis granted the immunity privilege to Jacobs at the start of the interview, he remarked that police investigators don’t usually give such protection to witnesses. Manis then read the immunity waiver aloud to Jacobs:

“During the course of this questioning even if you do disclose information which indicates that you may be guilty of criminal conduct, neither your self-incriminating statements nor the fruits of any self-incriminating statements will be used against you in any criminal proceeding.”

Jacobs was given the same immunity waiver during two other interviews conducted by Manis.

Lt. William Taylor of the police internal affairs unit said that such immunity waivers are often given to officers who face questioning on an incident that could lead to a criminal offense. Police investigators have the authority to grant special immunity to witnesses without seeking permission from the district attorney or a judge.

“If any enlightened individual thinks there is a possibility he might incriminate himself by talking to anybody, he’s not going to talk,” Carpenter said. “They weren’t going to get the statement (from Jacobs) any other way. . . . If it comes down to a situation of getting a statement or no statement, I don’t think anybody would object to (granting immunity) under those circumstances.”

Jacobs, who is disabled from being shot once in the neck, complained of pain in his arm and burning in his eyes during the interview.

Carpenter suggested that the emotional impact of seeing a fellow officer critically wounded and in obvious pain may have led Manis to reassure Jacobs that he was not in any trouble.

“You’re forgetting one thing and that is we’re all human beings,” Carpenter said. “It was eight days after the offense occurred and he was talking to a person who just came off the critical list. . . . You don’t want to confront somebody in that position.”

Manis did not record the first interview with Jacobs, and destroyed his notes of the discussion. Jacobs’ attorney, James Gattey, did use a recorder, however, and turned the tape over to the district attorney’s office.

During the first interview, Jacobs said he stopped Penn’s truck because it had made an illegal U-turn. Manis advised Jacobs in a subsequent interview on April 17--again with Gattey present and a pledge of immunity--that all witnesses told police that the truck did not make a U-turn. Manis also told Jacobs that police had measured the wheel base and turning radius on the truck and determined that Penn could not have made a U-turn without driving onto the curb, according to court papers.

“When I give you this information, perhaps you can assist us or it will jog your memory or make your recollection different,” Manis told Jacobs at the start of the interview.

Jacobs explained that if he had made an error or mistake during the first interview, it was due to his injuries because “I don’t have any reasons to lie about that.”

The coaching and the immunity waiver Jacobs received differ from the approach used by police investigators with Penn on the night of the shootings.

All of the Penn interviews were recorded, and it was not until the third interview that night that police informed Penn of his right to consult a lawyer, according to court papers quoting the recordings. The papers were filed Thursday by defense attorney Milton Silverman.

Copies of the police recordings have been turned over to Silverman.

During the first interview, which began less than an hour after the 6 p.m. shootings, Officers Richard Lundy and Sylvester Wade took a lengthy statement from Penn.

At 8:45 p.m., Officers R.C. Lopez and Alfonso Salvatierra moved Penn to an interview room, where he was seated in a chair and handcuffed. The session lasted more than an hour, during which Salvatierra and Lopez stated that they observed Penn and let him talk, but did not ask any questions, the court documents say.

Homicide Detectives Lawrence Lindstrom and Gary Murphy began interrogating Penn at 11:42 p.m. Hours after the arrest, Lindstrom and Murphy made the first attempt to advise Penn of his constitutional rights to remain silent and consult an attorney.

According to the documents filed by Silverman, Penn requested an attorney and Lindstrom said, “Well, yeah . . . you’ll have an attorney and you can talk with us now.”

Penn then answered police questions until the end of the interview, without representation by an attorney.

At County Jail downtown the next morning, Penn was interviewed a fourth time, by psychologist Abigail Dickson. Again, Penn was given no Miranda warnings, according to the court papers.

In addition, Silverman charges in court papers that Penn was deprived of adequate food and sleep throughout the night while being subjected to hours of police interrogation, testing and physical examinations.

Silverman is seeking to have all four police interviews with Penn ruled inadmissible before the trial begins.