It’s Now 3 Strikes Against Reopening Penn’s Trial

Saying that Sagon Penn did not receive a fair trial, defense attorney Milton J. Silverman on Monday tried for a third time to have Penn’s murder trial reopened so he can introduce what he contends is new, potentially damaging testimony about Police Agent Donovan Jacobs.

And for the third time, Judge Ben W. Hamrick decided against interrupting jury deliberations, which are scheduled to enter their 20th day today.

“I think Mr. Penn has gotten an extremely fair trial,” Hamrick said. “I think at this late date it (introducing new evidence) would tip the balance against the prosecution.”

Hamrick suggested that prosecutors reach a compromise in the case by allowing jurors to only hear the new evidence, which consists of a transcript of a taped police interview dealing with Jacobs’ attitudes in 1978 concerning the use of aggression and obscenities when dealing with minorities.

Silverman wanted to call several witnesses to testify about the transcript and Jacobs’ conduct while he was enrolled in the 90th Police Academy.

Deputy Dist. Atty. Michael Carpenter refused Hamrick’s suggestion, saying the timing of such a compromise “in and of itself would be devastating to the prosecution.”

The 11-page transcript, which surfaced after the jury began deliberations, reveals a lengthy conversation among Jacobs and three training officers over their concern that Jacobs was likely to react in an “over-aggressive” manner and use epithets when confronted by members of minorities.

Penn is charged with murder in the March 31, 1985, shooting death of Police Agent Thomas Riggs and attempted murder in the shootings of Jacobs and Sarah Pina-Ruiz, a civilian ride-along who was accompanying Riggs. Numerous defense witnesses testified that Jacobs provoked Penn by beating him and using racial slurs.

At Silverman’s suggestion, Hamrick said he felt the prosecution could avoid the possibility of a new trial or a mistrial by agreeing to have the document read to the jury.

But Carpenter said the district attorney’s office believes that court decisions rejecting the new evidence last week by Hamrick and the 4th District Court of Appeal will stand.

“I’ve talked to Jacobs and they are making a mountain out of a molehill,” Carpenter said. “Jacobs was just making a joke in front of the class. It is a 21-year-old person making a joke.”

But Silverman said, “If it doesn’t mean anything, why don’t they read it to the jury?”

In its 2-1 decision last week, the appellate court’s minority justice wrote, “It is clearly in the interest of justice to make this evidence available to the defense before the verdicts are returned.”

Saying it agreed with much of the minority opinion, the court majority on Friday urged Hamrick to reconsider introducing the evidence.

On Monday, Silverman asked Hamrick to hold a hearing to determine why Police Officer Jenny Castro held onto the Jacobs transcript until May 20 after finding it last October. He also proposed calling Police Chief Bill Kolender, Carpenter and Assistant Dist. Atty. Richard Neely to ask why the prosecution waited 12 days after receiving the report to give it to Hamrick.

Silverman claimed the prosecution had committed fraud by refusing to immediately turn over the transcript of the interview.

In another development Monday, The Times and the San Diego Union asked the appellate court to order Hamrick to permit the public to attend future hearings in the case and that the court make available transcripts of all hearings that have been held behind closed doors.

Hamrick has repeatedly barred the media and the public from court hearings, including those held while jurors were sequestered. The judge also has sealed numerous transcripts and documents, including the Jacobs interview.