Doors to Penn Trial Shut Again, This Time at Request of Jurors

Proceedings in the Sagon Penn police murder trial were held behind closed doors again Monday after the jury asked a Superior Court judge to exclude the media from a routine hearing.

As they began their sixth week of deliberations, jurors sent a note to Judge Ben W. Hamrick seeking clarification on jury instructions regarding an auto theft charge filed against Penn. The request also said that the jurors did not want reporters present when they discussed the charge.

Without inquiring why the jury wanted to oust the press, Hamrick cleared the courtroom before jurors filed in. At no time did the judge press the jurors to explain their unusual request.

Deputy Dist. Atty. Michael Carpenter described the hearing as “routine.” He said he did not have any idea why jurors wanted to exclude the media.

“You weren’t there and since they didn’t want you there, I don’t think I should discuss it,” Carpenter said.

Penn is charged with murder in the March 31, 1985, shooting death of San Diego Police Agent Thomas Riggs and attempted murder in the shootings of Agent Donovan Jacobs and Sarah Pina-Ruiz, a civilian ride-along who accompanied Riggs. Penn also faces two theft charges for taking Riggs’ revolver and Jacobs’ police car as he left the scene.

Hamrick has banned the public and the media from numerous hearings in the case, including several dealing with jury deliberations and a recent attempt by the defense to introduce new evidence. On one occasion, Hamrick refused to allow an attorney representing the San Diego Union to argue in support of opening hearings to the public.

On May 16, the Union and The Times asked the 4th District Court of Appeal to order Hamrick to allow the public to attend future hearings and to unseal transcripts of all previous closed sessions. The appellate court is still considering the request.

In legal arguments filed Friday, defense attorney Milton J. Silverman urged the appellate court to open the trial hearings and make available transcripts of closed sessions. Silverman said Penn is entitled to a public trial.

“The issues generated during the trial have far-reaching community impact and have been the source of great and varied public opinion,” Silverman wrote. “To now close any proceedings to the public and press . . . will result in speculation and will tarnish the eventual result of what the public has thus far perceived as a fair trial.”

The Penn case has strained police-community relations in San Diego’s minority neighborhoods because Jacobs mistook Penn for a black gang member when the officer pulled him over. Numerous witnesses testified that Jacobs provoked Penn by beating him repeatedly and using racial slurs.

Hamrick acted properly in restricting media access to protect jurors from being influenced by publicity, the district attorney’s office said in arguments filed Friday with the appellate court.

Deputy Dist. Atty. Robert Phillips noted that Silverman is “feigning righteous indignation” over recent closed court proceedings when he “openly encouraged” restricting public access throughout much of the trial.

Phillips added that Silverman forced Hamrick into “an untenable position” by objecting to the release of two black jurors who threatened to quit deliberations on June 9 if the judge continued to sequester them in a hotel. Hamrick agreed to cancel his sequestration order and keep the jury intact.

Silverman responded: “Any untenable position that the court has been placed in has been solely and exclusively the result of outrageous governmental misconduct in this case.”

Silverman was referring to reports that the district attorney’s office launched an investigation in the middle of jury deliberations into allegations that juror Vernell Hardy discussed the case with co-workers.

The county counsel’s office, arguing on behalf of Hamrick, said the press has no right to attend hearings having to do with jury deliberations. It added that any court order directing Hamrick to publicly explain the closing of any future hearings would be “inappropriate and unjustified.”

Deputy County Counsel Barbara Baird wrote, “Not every action a court takes must be splashed across the day’s headlines merely because it occurs during the course of a criminal trial.”