Jacobs’ Testimony Attacked : Defense Says Sagon Penn Acted Only to Protect Self

Arguing that Sagon Penn acted in self-defense and should be acquitted of all charges, attorney Milton Silverman urged jurors on Tuesday to put themselves in Penn’s shoes moments before he fatally shot one San Diego police officer, seriously wounded another and injured a civilian observer.

“You can talk about hearing the pounding of your heart in your temples . . . and seeing the world not upright but on your back with clubs coming down on you and begging somebody to stop,” Silverman said during final arguments in the 12-week-old trial. “Please stop! Please stop! Please stop! And them not stopping, them not quitting, them not letting up. And them saying things that let you know why they’re not going to let up.

“ ‘You think you’re bad, nigger . . . I’m going to beat your black ass.’ ”

Silverman’s voice rose dramatically as he acted the part of Police Agent Donovan Jacobs sitting on top of Penn, punching him in the face and shouting racial epithets. He then suggested to the jurors what was going through Penn’s mind:

“ ‘God, is this a police officer on top of me? Is this a man with a badge? Is this the law? Is this guy nuts? Is he crazy? Is he going to kill me? Why doesn’t he stop? The only thing I’ve got left is my two hands and the ability to move my head.’ ”

Penn reacted on March 31, 1985, by grabbing Jacobs’ gun and shooting him once in the neck. The 24-year-old Southeast San Diego man then turned and shot Police Agent Thomas Riggs three times, killing him with the third bullet. And before he fled the scene, Penn shot Sarah Pina-Ruiz twice as she cowered in the front seat of Riggs’ police car.

All six shots were fired in less than six seconds by Penn, who is charged with one count of murder and three counts of attempted murder.

Nattily dressed in his customary white shirt with gold cuff links and suspenders, Silverman pleaded with the jury to try their hardest to reach a verdict.

“Now, I know a lot of defense lawyers like the idea of hey, let’s get a hung jury here,” Silverman said. “This case needs resolution and you are all capable of resolving it . . . I ask you to reach a verdict in this case. Not for the sake of the prosecution . . . not just for Sagon Penn, as much as he needs it . . . because he has spent a year awaiting some kind of decision on his fate . . . but because the community needs a resolution of this case.”

Earlier in the day, Silverman suggested that jurors could start their deliberations by considering the notion that Penn acted in self-defense when he shot the two officers and Pina-Ruiz. He reminded the jurors that homicide can be ruled justifiable when a suspect responds to a perceived threat, not an actual threat.

“If you find that, that is it,” Silverman said. “No murder. No manslaughter.”

Silverman spent much of the second day of his final argument attacking the prosecution’s case, including the courtroom tactics employed by Deputy Dist. Atty. Michael Carpenter and the credibility of Jacobs and Pina-Ruiz, the prosecution’s two lead witnesses.

And, over Carpenter’s objection, Silverman suggested that jurors concentrate on self-defense because the prosecution has failed to prove that Penn intended to kill the officers or Pina-Ruiz.

“I don’t think any reasonable person hearing the evidence that you have heard here should be spending very much time talking about the concept of murder,” Silverman said.

As he did Monday afternoon, Silverman hammered away at the prosecution case, saying that Carpenter has proved little so far.

“I still don’t know what Mr. Carpenter’s theory of this case is because he hasn’t told me and he hasn’t told you,” Silverman said. “He will once I sit down. He’ll tell you when he knows that I can’t get up and answer it anymore.”

Under court procedures, the prosecutor is given the last opportunity to address the jury and rebut final defense arguments before the jury begins deliberating.

Silverman said he will finish his closing remarks today. The case could go to the jury by the end of this week.

Recalling various anecdotes involving other murder cases and quoting everyone from Aristotle to Albert Camus, Silverman focused his arguments on the participants and events on the day of the tragic shootings. He paced while speaking and rarely consulted notes.

The defense attorney attacked Carpenter for delivering a variety of “unfair, misleading and cheap” remarks throughout the trial.

For example, Silverman said, the prosecutor stated in his opening remarks that “nobody came to the aid of the officers” as they lay “mortally wounded” on the ground.

“The picture that started to get painted in this case was that there were a bunch of bad asses in that neighborhood,” Silverman said. “A bunch of people that . . . would allow somebody to sit out on the driveway and bleed to death before they would come to their aid or do anything.

“In fact, the exact opposite is true. In fact, if you want to find people that are any more responsible, God-fearing, Christian, American people, this is quite a good street to be on, isn’t it? . . . These people at that scene exercised enormous restraint and respect for the law and respect authority. All they could think to do is call the police and try to get the police to stop beating somebody.”

Silverman said that March 31, 1985, began with Penn borrowing his grandfather’s white Chevy pickup truck to spend a peaceful afternoon with friends at Balboa Park.

“Sagon Penn was looking for a quiet Sunday in the park,” Silverman said. “Tom Riggs was looking for a man with a gun. And Donovan Jacobs was looking for trouble.”

If Penn hadn’t stopped to give three people he barely knew a ride home to an Encanto neighborhood he had not visited before, Silverman said, he would never have crossed Donovan Jacobs’ path.

Jacobs and Riggs were looking for a black gang member with a gun when they passed Penn’s pickup on 65th Street in Southeast San Diego. Silverman said Riggs drove by the pickup without incident but Jacobs turned on his flashing lights and pulled Penn over. In court, Jacobs testified that Penn made an illegal U-turn. All other witnesses, however, said that Penn did not make such a turn.

Silverman remarked that the jury still does not know the real reason why Jacobs stopped Penn.

“Maybe Donovan Jacobs saw some new folks in the neighborhood and wanted to get acquainted,” Silverman said. “I don’t know. Donovan Jacobs could tell you, but he won’t.”

Numerous witnesses in the trial testified that they saw Jacobs approach Penn near the driver’s side of the truck and an altercation began when Penn refused to take his driver’s license out of his wallet. Jacobs then drew his baton and began striking Penn, who used his karate skills to fend off many of the blows.

Silverman quoted several witnesses who said that Jacobs and Riggs were beating Penn so hard that they thought the officers were going to kill him.

Silverman called Jacobs a “Doberman pinscher” but did not criticize the actions of Riggs, who hit Penn with his police night stick as Jacobs sat on top of the defendant.

“Why is Tom Riggs hitting him?” Silverman asked. “We can’t ask Tom Riggs. I like to think that he didn’t have much choice . . . because you’ve got somebody like a Doberman pinscher, and I make no apologies for saying that because what is it other than a snarling animal on top of Sagon Penn beating his face in and telling him he’s a nigger and he’s going to beat his black ass . . .

“How do you stop Donovan Jacobs? . . . I’d like to think that Tom Riggs had very, very little choice except to try to punch this fellow’s lights out so that they could get out of there. And maybe a little later in the squad room he would have said, ‘Hey, Donovan, don’t ever do that again.’ ”

Jacobs is the only witness in the trial who stated that Riggs initiated the physical confrontation with Penn, and that he came to his partner’s rescue.

Silverman said Jacobs has used what he described as the “ABM defense--anybody but me.”

Jacobs “knew that what happened on that side of the truck was wrong,” Silverman said. “He knew that he had no cause to pull that club out and try to take Penn’s head off with it. He knew it was wrong and that’s why he lied about it and you don’t need a psychiatrist to tell you about it.”

Silverman asked the jury to calculate the number of witnesses that would have to be lying in order for them to believe Jacobs’ story. He estimated that 10 witnesses heard Jacobs call Penn “nigger.”

Jacobs testified that he has never used the words “nigger” or “black dude,” despite testimony from a sergeant who said he heard Jacobs say “black dude” at the police station.

“Black dude is not any real big, heavy-duty thing, is it?” Silverman said. “But listen to Donovan Jacobs’ answer when he was here . . . ‘No, never!’ By the way, that’s the same answer to ‘kick your black ass.’ ‘No, never.’ Same answer to nigger. ‘Not in my vocabulary. No, never.’ Black dude. ‘No, never!’ ”

Silverman said physical evidence and statements from numerous witnesses also indicate that Pina-Ruiz was not telling the truth when she testified twice during the trial. He said that the civilian ride-along could not have seen the shootings as she dramatically described. The defense attorney suggested that Pina-Ruiz lied to assist her civil lawsuit against Penn and the City of San Diego.

“This is the witness upon whom the prosecution’s fortunes depend,” Silverman said.

Silverman said that Penn had no way of knowing that Pina-Ruiz was an unarmed civilian in the less than three seconds that elapsed between the time he shot Riggs and fired into the police car. He added that none of the witnesses at the scene thought that Pina-Ruiz was an unarmed civilian ride-along. Many testified that they thought she was a police officer or plain clothes detective.

Silverman also attempted to discredit the testimony of two witnesses who said that Penn told Pina-Ruiz: “You’re a witness, I’m going to have to kill you, too” before he shot into the car.

One of the witnesses, Junius Holmes, testified in a preliminary hearing that he did not hear any such statement, Silverman said. Holmes testified during the trial that he was standing at least 80 feet away from the shooting when he heard the remarks. The defense attorney also discussed several pieces of evidence that contradicted Holmes’ account of the shootings.

In addition, Silverman said, Penn did not have enough time in between the gunfire to stand and tell Pina-Ruiz she was going to get shot

Silverman frequently reminded jurors that Jacobs had no more right to use excessive force against Penn than a man on the street.

“That police officer sheds all vestiges of badge, authority and everything else when he steps outside the law and wreaks a personal vengeance upon another person,” Silverman said. “He’s just like you and just like me. And the fact he is wearing a uniform does not make a bit of difference.”