New Report Surfaces in Penn Murder Trial : Judge Must Decide If Jury Should Consider Evidence Detailing Jacobs’ Police Training

The San Diego Police Department on May 21 handed the district attorney’s office a report containing potentially damaging information about Agent Donovan Jacobs that could force jurors in the Sagon Penn murder trial to consider new evidence in deciding their verdicts, The Times has learned.

Superior Court Judge Ben W. Hamrick must now decide whether to allow the defense to introduce the new evidence to jurors as they begin their 15th day of deliberations today.

As he has throughout much of the trial, Hamrick closed Monday’s court proceedings concerning the Jacobs report, which deals with a training exercise Jacobs participated in eight years ago at the San Diego Police Academy.

Jacobs’ character and performance during his career have developed into a critical issue during the trial.

Penn is charged with murder and three counts of attempted murder for fatally shooting Agent Thomas Riggs on March 31, 1985, and seriously wounding Jacobs and Sarah Pina-Ruiz, a civilian ride-along who accompanied Riggs in his patrol car.

Numerous witnesses testified that Jacobs beat Penn repeatedly and shouted racial slurs at the 24-year-old black man. The defense has portrayed Jacobs as a racist and “a Doberman pinscher” who provoked Penn by attacking him after mistaking Penn for a gang member. The prosecution has called Jacobs a superior police officer who has won numerous commendations for his outstanding law enforcement work.

While The Times has learned that the new report could significantly affect jury deliberations, Jacobs said Monday he knew of no noteworthy incident that occurred during the time he was enrolled in the Police Academy.

“I have no idea what you’re talking about,” Jacobs said. “I’ll have to search my memory. I didn’t get in any trouble while I was in the academy. I was late for class. I wonder if that has anything to do with it.

“I’m as clean as a newborn babe. I’m just what the prosecution showed you.”

Both Deputy Dist. Atty. Michael Carpenter and defense attorney Milton J. Silverman refused to comment on the Jacobs report, saying they had been ordered by Hamrick not to discuss it.

The district attorney’s office declined to explain the 12-day gap between the time it received the document and discussions of it in court.

The document was reportedly discovered by a police officer who was cleaning out a desk drawer at the department’s academy office on May 19, according to Assistant Police Chief Bob Burgreen. On May 20--the same day the jury convicted Sagon Penn of assault with a deadly weapon for driving a patrol car over Jacobs--the officer gave the report to Burgreen.

The partial verdict was later overturned when a juror said she had reservations.

If the guilty verdict had stood, the defense would have been unable to introduce any new evidence. As the case stands now, Hamrick could order the jury to return to the courtroom and weigh the Jacobs report along with other evidence.

After receiving the report, Burgreen said, he went immediately to Police Chief Bill Kolender.

“In spite of the fact it was eight years old . . . we felt it ought to be brought to the attention of the court,” Burgreen said. “It’s something we could have buried and did not. We knew the ramifications of holding such things.”

A police source told The Times that at least one police officer had known about the report for several months before the partial verdict was returned.

“If that’s true, I don’t know that,” Burgreen said. “I was told by the person that they just found it and read it the day before.”

Kolender sent the report to the district attorney’s office on May 21. Deliberations had been postponed the day before for one week to allow juror Vernell Hardy to recuperate after she delivered a baby. Hardy is the juror who forced Hamrick to set aside the verdict when she informed the judge from her hospital bed that she had second thoughts.

Last Thursday, Hamrick ordered the jurors sequestered in a San Diego hotel after hearing reports that Hardy had discussed the case with co-workers.

In a bizarre development Monday, Hamrick reversed the sequestration after Hardy and Kimberly McGee, the only blacks on the 12-member jury, told him they would not continue unless they were allowed to go home each night after deliberations.

Last week’s sudden sequestration created many problems for jurors, who had to make last-minute arrangements to care for children and handle routine errands. Hardy was permitted to see her baby boy each night for one hour.

“Because of all these problems, I have decided to lift the sequestration,” Hamrick told the jurors. “I want to keep this jury intact.”

Hamrick said Monday he initially sequestered the jury because of recent newspaper articles, some of which reported that Hardy had discussed the case with her co-workers at Pacific Telephone.

However, San Diego newspapers did not report the alleged misconduct until after Hamrick sequestered the jury.

“In many instances, I have found they were false and misleading,” Hamrick said to the jurors. “The alleged jury misconduct was not well-founded and will not affect your deliberations.”

As the jury resumes deliberations today with the reading of trial testimony transcripts, Hamrick must decide how to proceed with the Jacobs report.

On Monday, three police officials were called to testify about the new evidence.

Capt. Tom Hall, commanding officer of the city’s Eastern division, and Capt. Dave Hall, head of the Northern division, took the witness stand during the closed session. Officer Robert Kobs, custodian of police personnel files, also appeared at the courthouse.

All three were ordered not to comment on the case.

Academic specialists in criminal law said Monday that the decision Hamrick faces is highly unusual, if not unprecedented.

Sanford Kadish, a professor of law at Boalt Hall in Berkeley, said Hamrick probably could reopen testimony in the case to allow the jury to hear the new evidence. But Kadish could not recall any case in which such a step had been taken.

The judge also could decide that it is too late in the proceedings for the defense to introduce the evidence. Instead, Kadish said, Hamrick’s best option could be to do nothing for now and let the jury return its verdict on the basis of testimony heard at the trial.

Hamrick’s next step would then depend on the verdicts, Kadish said.

“If the jury comes in and acquits, that’s the end of the matter,” Kadish said. “If he waits, and the jury convicts, he could declare a mistrial.”

John Kaplan, a professor of law at Stanford University, said Hamrick’s most important decision will be whether the new evidence is significant enough to potentially change the jurors’ verdicts.

“I’d want to look very carefully at this stuff and see if it’s cumulative and whether it really does matter,” Kaplan said.

If so, Kaplan concurred with Kadish’s evaluation of the judge’s options. He said he was glad that Hamrick’s decision was not his to make.

Noting all of the odd twists and turns the Penn case has taken in recent weeks, Kaplan said: “This case takes the cake.”

Times staff writer Jim Schachter contributed to this article.