Appeal Court Won’t Reopen Penn Trial for New Evidence

The 4th District Court of Appeal on Friday denied a motion to reopen the Sagon Penn police murder trial in order to introduce new evidence that the defense says shows San Diego Police Agent Donovan Jacobs was likely to react in an “over-aggressive” manner and use racial epithets in stressful situations.

In a split decision, Justices Howard B. Wiener and Edward T. Butler ruled that, while they agree with much of Justice Don R. Work’s dissenting opinion, they do not believe Superior Court Judge Ben W. Hamrick abused his authority in barring the new evidence.

The evidence consists of a transcript of a discussion between Jacobs and his instructors following an academy training exercise in August, 1978, during which Jacobs approved of a police officer using racial slurs when confronting minorities. Three training officers believed Jacobs’ behavior in front of his classmates was so unusual and “serious” that they decided to conduct a rare tape-recorded interview with him.

In the transcript, Jacobs said, “If you come across (with) some professional profanity and they (the suspects) start to move, I think that’s very effective,” according to the court decision. Jacobs added that he supported using profanity, derogatory words or “whatever is necessary to get the job done.”

Numerous defense witnesses testified that Jacobs provoked Penn by repeatedly beating him and telling the 24-year-old black man, “You think you’re bad, nigger . . . I’m going to beat your black ass.”

Work, in a stinging 13-page dissent, criticized a San Diego police officer and the district attorney’s office for holding onto the 11-page transcript of the Jacobs interview as the trial and jury deliberations progressed. The justice argued the jury should be allowed to determine the value of the new evidence, not others trying to second-guess what the jurors would have decided had the report been introduced.

“It is clearly in the interest of justice to make this evidence available to the defense before verdicts are returned . . . and an abuse of discretion not to do so,” Work wrote. “Penn . . . should be entitled to have this jury return a verdict based upon all the relevant evidence.”

Work added that in the event Penn is convicted, the appellate court’s denial raises the serious possibility that a motion for a new trial would be granted.

In their majority opinion, Wiener and Butler suggested Hamrick could reconsider introducing the new evidence in light of Work’s dissent. But the justices said Hamrick is more capable of making such a decision because of his “feel for the case.”

Penn is charged with murder in the March 31, 1985, fatal shooting of Agent Thomas Riggs and the shootings of Jacobs and Sarah Pina-Ruiz, a civilian observer who accompanied Riggs in his patrol car.

The controversial murder case has heightened police tensions in San Diego’s minority community, partly because Jacobs mistook Penn for a black gang member and beat him with a night stick.

During the four-month long trial, the defense alleged that Jacobs had a history of using unnecessary force and racial slurs when dealing with minorities during his seven-year police career. Defense attorney Milton J. Silverman said Friday that the transcript supports his characterization of Jacobs.

“The document shows that Donovan Jacobs exhibited unprofessional characteristics, racial bias, prejudice and a propensity to be a hothead from the day he walked into the academy,” Silverman said. “And the character evidence I have introduced shows he did not shed that mantle of prejudice when he walked out of the academy.”

The prosecution called a dozen police officers to testify that Jacobs was a model officer who exhibited no signs of racial bias. Sgt. Harold Hiskes Jr., who sat next to Jacobs in the police academy and was his supervisor for five months, said Jacobs was “a very low-key officer” who handled himself well in minority areas.

The transcript was first discovered nine months ago by Jenny Castro, a seven-year officer who is assigned to the police academy at Miramar College, The Times has learned.

Castro did not turn the document over to police officials until May 20--the same day jurors were excused from deliberations for a week after finding Penn guilty of assault with a deadly weapon for driving a police car over Jacobs.

The verdict was later set aside when juror Vernell Hardy, who had delivered a baby, told Hamrick from her hospital bed that she had second thoughts.

Deputy Dist. Atty. Michael Carpenter said the new evidence is not relevant to the case because it is eight years old and occurred before Jacobs became a police officer.

“The jury has sufficient evidence at this time to arrive at appropriate verdicts without this,” Carpenter said Friday.

Work disagreed, saying there can be no justification for allowing the prosecution to enjoy the advantage of not introducing the transcript to the jury.

Said Silverman: “The bottom line is that the court feels if this evidence is not presented to a jury, Sagon Penn did not get a fair trial. That’s something that the community and all of us are vitally concerned that he gets . . . Any conviction of anything would be seriously tainted because the jury didn’t get all the facts.”

According to the appellate court’s ruling, the transcript shows that Jacobs exhibited conduct during two academy classes on objectivity and ethics that suggested he was likely to become over-aggressive and use racial epithets.

On Monday, Jacobs told The Times he had no idea what the new evidence was about. He suggested sarcastically that the defense could be focusing on his showing up late for classes at the academy.

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

Jacobs did not return phone calls on Friday.

Jacobs’ academy supervisors criticized him for telling his classmates that he approved of a police officer using racial slurs when confronting minorities. They also told him that his attitude differed from his classmates.

Jacobs responded that he wasn’t different, only more forthright in expressing his opinion because he had worked with police officers downtown as a campus officer at Grossmont College.

“I seen how they handled situations,” Jacobs told his training officers. “The ideal situation is not to cuss, not to use derogatory remarks, but out there you get in the habit of using it and sometimes it works.”

Work said in his dissent that he considered the statements extremely relevant to the Penn case, particularly because it conflicts with Jacobs’ own statements and testimony by Hiskes and other fellow officers.

” . . . Jacobs entered police training with a propensity to exacerbate confrontations with minority civilians through inappropriate aggressiveness and the use of obscenities and epithets which would tend to provoke violent reactions similar to those described by some eyewitnesses” in the Penn shooting, Work said.

Work wrote that Hamrick erred when he ruled the new evidence is of “minimal value.” Hamrick felt the transcript was not relevant because it occurred eight years ago and was similar to testimony from other defense witnesses, according to the appellate court decision.

But Work noted that not one defense witness testified about Jacobs’ performance during the academy. Work also said Jacobs was evaluated by three police officers trained specifically to make such observations.

In light of the suggestion in the majority opinion to consider Work’s views, Silverman said he intends to ask Hamrick to reconsider his ruling on Monday.

“I feel Judge Hamrick has been very fair and open-minded and concerned with giving Penn a fair trial,” Silverman said. “He isn’t stuck in concrete on anything. I feel the opinion may be very useful to him in analyzing the issues.”

Hamrick did not learn of the Jacobs transcript until June 6, even though it had been in Castro’s position since last September or October.

In an unsworn declaration filed by the district attorney’s office, Castro said she “discovered” the document while cleaning an unused academy office, according to the court’s decision. Castro, who knew the report consisted of an interview with Jacobs, said she put it in her desk “with intentions of reading it later.”

Work noted that despite extensive media publicity of defense efforts to obtain information from Jacobs’ personnel file regarding racial prejudice, the transcript “languished quiescent in her desk, unread and forgotten.”

It was not until April 29 or 30 that Castro “rediscovered” the document and decided it might be important to give to Police Chief Bill Kolender, Work said. On those dates, the prosecution called numerous character witnesses to rebut evidence that Jacobs had engaged in racial violence.

Work wrote that Castro “inexplicably” failed to deliver the document to her superiors until May 19, three days after the jury began deliberating. Even if Castro had turned over the document on April 29 or 30, the evidence would have been made available before jury deliberations.

Carpenter said he is convinced that Castro did nothing wrong. “It will be shown that she was innocent in whatever she was doing. (Work) attributes to her a lot of knowledge of the case and a lot of responsibility and duty regarding the case.”

After receiving the transcript from police on May 21, the district attorney’s office did not inform Hamrick or the defense of the new evidence until June 2. Hamrick was not available to read the document until June 6, when he returned from vacation.

“Had the district attorney’s office promptly contacted the trial court on May 21 or at anytime prior to May 27, the matter could have been resolved before the jurors renewed deliberating,” Work said in his dissent.

Carpenter denied that he intentionally delayed giving the new evidence to Hamrick for two weeks while jurors resumed deliberations. Had the jury returned a verdict during that time, the document could not have been introduced.

“We made very effort in our power to do the right thing to decide what to do and how to go about it,” Carpenter said. “I think it’s unfortunate that (Work) thinks we did the wrong thing.”

While Carpenter said a “full and fair hearing” will reveal the district attorney’s office acted properly, Silverman accused the prosecutor of concealing the truth.

“A full and fair hearing is going to show that the district attorney violated the ethical responsibilities it had to immediately bring that document to the judge’s attention,” Silverman said. “The district attorney’s office has stated things publicly out of one side of their mouth and privately behind closed doors out of the other.”