Penn Prosecutor Met Match in Veteran Defense Lawyer

Since February, police officers and minorities in San Diego closely followed the Sagon Penn murder trial and anxiously awaited an answer: Was the young black man guilty of shooting two white officers and a civilian, or was he provoked by a racist police attack?

For eight months, Deputy Dist. Atty. Michael Carpenter and defense attorney Milton J. Silverman devoted all of their energies to preparing to try the case in a cramped, fourth-floor courtroom of San Diego Superior Court Judge Ben W. Hamrick.

What began as a gentlemanly battle between two legal gladiators escalated into a bitter confrontation that included harshly worded personal attacks, accusations of ethical misconduct and emotional outbursts.

This is the story of the fierce struggle, the crucial decisions and the legal strategies that played an important part in determining the fate of Penn, 24, who was acquitted Thursday of murder and attempted murder in the March 31, 1985, slaying of San Diego Police Agent Thomas Riggs and the shooting of Agent Donovan Jacobs. The jury was deadlocked 11-1 in favor of acquitting Penn of the attempted murder of Sarah Pina-Ruiz, a civilian ride-along.

Both attorneys in the case granted extensive interviews with The Times during lengthy jury deliberations, which began May 15.

Amid the public scrutiny, Carpenter felt a heavy burden as he fought for a first-degree murder conviction. Police officials were outraged that the prosecution had not sought the death penalty in the case, and black leaders demanded that Penn receive a fair trial.

“On the surface, it looks like white against black, but it’s not that,” Carpenter said. “The people involved in this situation happened to be black, the defendant was black, and a lot of defense witnesses were black. Here I’m thinking as soon as I go after one of those witnesses, I’m going to be labeled a racist, which is not true. That’s just incredible pressure. You just have to walk on tiptoes.”

As the case progressed, Carpenter, 43, who earns about $50,000 a year, was overwhelmed with strong emotions about the tragic shootings. He said he felt tremendous empathy for Jacobs, Pina-Ruiz and Riggs’ family.

Carpenter, acknowledging problems with Jacobs’ credibility as a witness, said he had considered not calling the wounded officer to testify. But the prosecutor abandoned the idea because he did not want to hurt Jacobs’ feelings.

Bumper stickers in Southeast San Diego that said “Free Sagon, Jail Don” outraged Carpenter. They were a reference to reports that Jacobs had beaten Penn repeatedly and had hurled racial slurs before the shootings. And Carpenter became “very despondent” over testimony by a black defense witness who said police entered minority neighborhoods to “harass” and “intimidate.”

Carpenter said he felt so relieved at the end of the trial that he went home and wept openly for the first time in front of his wife and two children.

Silverman, who worked 16-hour days and weekends researching the case, became totally absorbed in gaining an acquittal for Penn. But the defense attorney said he went to great lengths not to become emotionally involved in the case.

“One of the things I think is important for a lawyer to do is keep his distance from the personalities involved,” said Silverman, 41, whose personal legal fees in the case--nearly $100,000--are being paid by the county public defender’s office. “I don’t think about members of the community who may not like the fact that I defend Sagon Penn. It makes no difference to me. That’s my job.”

Throughout the trial, the defense attorney said, he lay awake at night rehearsing his cross-examination of important witnesses. He spent several sleepless nights debating whether he should call Penn to testify before the jury.

“The problem is it’s such high stakes,” Silverman said of the decision whether to put Penn on the witness stand. “If I’m right, everybody will say I’m a genius. If I’m wrong, everybody will say I’m a loser.”

Silverman has gained a reputation in Southern California legal circles for taking criminal cases that appeared hopeless and turning them into stunning victories for the defense. He wrote a successful book about one case in which an El Centro woman was acquitted of hiring a police officer to murder her husband. Silverman argued she was under hypnosis at the time.

In accepting the Penn case, Silverman faced perhaps his greatest challenge yet. His client grabbed Jacobs’ service revolver and shot him in the neck, then fired three rounds at Riggs, killing him with the third bullet. Before fleeing in a patrol car, Penn shot Pina-Ruiz twice. Penn faced a maximum sentence of life in prison.

The following is a chronology of the dramatic trial and the intense confrontation between the two lawyers.

The postponement. No one could blame Carpenter for feeling confident when the trial began in October. Penn had confessed to the police shootings; San Diego County was well-known for yielding conservative jurors, and Penn was represented by Robert Slatten, a local defense lawyer.

But the picture changed on the second day of jury selection when Penn informed Superior Court Judge Earl H. Maas Jr. that he had lost confidence in Slatten and wanted Silverman to represent him.

The change delayed the start of the trial by three months and forced Carpenter to reevaluate his prosecution strategy.

Although he had never faced Silverman in a courtroom, Carpenter knew he was in for a war. His colleagues in the district attorney’s office warned Carpenter about Silverman’s reputation as a tough, street-fighting lawyer who embarrassed prosecutors before judges and jurors.

Carpenter said he was concerned about Silverman’s ability to persuade jurors with his combative style and commanding presence in court.

Jury selection. To the casual courtroom observer, the process of selecting jurors may seem nothing more than a tedious task as lawyers ask dozens of potential jurors the same questions over and over. But any seasoned attorney knows differently.

“Jury selection . . . is one of the critical stages of the trial,” Silverman wrote in his book “Open and Shut.”

“Indeed, one mistake by either the prosecutor or the defense in qualifying jurors means failure. For in a criminal case it takes 12 jurors to acquit and 12 to convict. Eleven out of 12 doesn’t count.”

Silverman apparently made such a mistake in allowing Douglas Bernd, 39, to sit on the jury. At the time of jury selection, the defense attorney did not know that Bernd wore a badge and a uniform and issued parking citations for the city of San Diego in 1973. Silverman also was unaware that Bernd was active in the Old Mission Beach Athletic Club, a beach fraternity with close Police Department ties and traditionally strong representation from officers.

Bernd was elected jury foreman and became the lone holdout who prevented Penn from being acquitted of attempting to murder Pina-Ruiz, according to interviews with two jurors who believed that without Bernd, Penn would have been acquitted of all charges.

“I was the lone holdout, and I’ll always be the lone holdout,” Bernd said in an interview Friday.

Without Bernd on the jury and with new, potentially damaging evidence against Jacobs in the form of a 1978 transcript that turned up after the jury had already begun deliberations, Silverman said, “Penn would have been acquitted on everything.”

Both attorneys consulted clinical psychologists to assist them in sizing up potential jurors. Carpenter asked each of the jury candidates whether they could decide the case solely on the evidence and remain unswayed by the style of a particular attorney, an obvious reference to Silverman’s courtroom skills.

Silverman studied the results of a public opinion poll, originally drawn to assist the defense in deciding whether to request the trial be moved to another county. The survey indicated that minority residents were more likely to be open-minded about the right to use deadly force in self-defense against a police officer.

Two black women and two Asians were selected among the 12 jurors and two blacks were among four alternates.

Black jurors spelled bad news for the prosecution, acquaintances warned Carpenter in social conversation and at cocktail parties. But Carpenter said he believed the black community needed to be represented if Penn was to get a fair trial. He also wanted to avoid being criticized for removing black jurors. Court rulings say that an attorney cannot strike a juror solely because of race.

“That is a particularly difficult area for a prosecutor,” Carpenter said. “As soon as you kick (off) a black juror, you’re labeled a racist.”

Opening statement. Both attorneys accused the other of using their opening remarks to mislead the jury.

Carpenter recounted for the jury the events of March 31, 1985, in chronological order. “When the shots were fired, the crowd immediately dispersed,” he said. “And the victims received no aid until other officers responded to the scene.”

The remark outraged the defense and offended many spectators, who felt the prosecutor had unfairly portrayed the black neighborhood of Encanto as a group of callous, uncaring residents who let the officers bleed to death rather than call for help.

In fact, several neighbors immediately dialed police emergency numbers after the officers where shot.

Silverman assailed Jacobs, whom he called a “Doberman pinscher,” for approaching Penn in an aggressive manner. The flamboyant defense attorney told jurors that Jacobs came up to Penn and said in a harsh, gruff voice: “You claim cuz or blood? (nicknames referring to members of black youth gangs) . . . You claim! You claim! You claim to be a member of a gang!”

Not one of the nearly 150 witnesses who testified in the trial said they heard Jacobs say those precise words to Penn, Carpenter said.

Silverman said he got the information in an interview with Brian Ross, a witness who did not include those remarks during his testimony.

“There are those who say that Milt may have a tendency to go overboard,” Carpenter said. “Milt is very effective at . . . repeating certain things for the jury so that it just becomes common nature for them to be able to recite them.”

The prosecution case. In presenting his side to the jury, Carpenter knew he faced a potential credibility problem with his lead witness--Donovan Jacobs.

The wounded officer accurately recalled nearly every detail about the day of the shootings except for two critical areas--the reason he stopped Penn’s pick-up truck and the officer who initiated the physical confrontation with Penn.

Jacobs told police detectives that he stopped Penn for making an illegal U-turn and that Riggs first hit Penn with a night stick. However, numerous witnesses said that Penn did not make a U-turn and that Jacobs was the first officer to strike Penn.

“It was just the type of thing where we knew we had this negative on us,” Carpenter said. “If you try to explain it (by arguing) that he feels guilt, that situation can really be turned around against us.”

Carpenter said he considered the possibility of not calling Jacobs to testify. He knew that Jacobs’ testimony would not add much to his case because Pina-Ruiz and others could provide eye-witness accounts of the shootings.

But Carpenter worried about the emotional impact on Jacobs if he was not called to testify. Even if it meant losing the trial, Carpenter decided he could not insult Jacobs’ feelings by leaving him out.

“What is he going to think about if the prosecution doesn’t call him to the stand?” said Carpenter, who grew to admire Jacobs and sympathize with the officer’s ordeal. “Here you’ve got a person who is physically devastated as well as emotionally devastated. I couldn’t do that to him.”

Jacobs’ testimony hurt the prosecution, three of the jurors told The Times.

Sally Naley, Vernell Hardy and Kimberly McGee said they believed Jacobs lied on the stand about the U-turn, the initial encounter with Penn and whether the officer ever used racial slurs.

The defense case. Throughout the trial, Silverman wrestled with his most critical decision--whether to put Sagon Penn on the witness stand.

“The credibility of no other witness is considered as rigorously by the jury,” Silverman wrote in his book. “A defendant who is honest, sincere and believable on the stand can walk out the door at the end of the trial, no matter how awesome the evidence for conviction. The defendant who is not believed can go to jail, no matter how flimsy the evidence.”

Silverman was uncertain how Penn, who he considers to be a naive young man, would hold up against Carpenter on cross-examination. He worried that one inconsiderate sentence uttered by Penn could be wrenched out of context by the prosecution and repeated over and over to the jury in final arguments.

As the trial progressed and the decision neared, Silverman spent several sleepless nights weighing whether to put Penn on the stand. Penn did not feel strongly one way or the other about testifying.

“He put his life in my hands,” Silverman said. “It was my decision to make.”

On April 27, the day before he would wrap up the defense case, Silverman decided against permitting Penn to testify.

Silverman felt Penn could add little to the testimony from numerous witnesses who had provided favorable accounts of the shootings for the defense. The defense attorney also did not want to focus the jury’s attention on Penn after he had spent the entire trial hammering away at Jacobs’ reputation. And, 2 1/2 months into the trial, Silverman believed the defense was way ahead.

“I don’t think I can lose big,” Silverman said at the time. “When you’re a touchdown ahead in the Super Bowl, you don’t give the other team the ball.”

Rebuttal. The final stage of testimony focused on the credibility of Pina-Ruiz, the third shooting victim. Carolyn Cherry, a black Navy housing clerk in San Diego, testified earlier that Pina-Ruiz told her she could not see the shootings. This contradicted Pina-Ruiz’s testimony, in which she dramatically described how Penn shot Jacobs and Riggs before pointing the gun at her face.

On May 6, Carpenter re-called Pina-Ruiz to testify that she had not discussed the shootings with Cherry or anyone else.

The defense, however, had a tape recording of the Cherry conversation, which included several statements that Pina-Ruiz had denied making.

Silverman saved the secret tape to impeach Pina-Ruiz for May 8--the final day of testimony. The defense attorney’s last-minute antics outraged the prosecution.

“This, in my opinion, is a classic example of sand-bagging,” Carpenter complained to Hamrick.

Later, Carpenter said, “I was still very, very upset about the fact that the other side is jumping around thinking that they pulled one over on us. But in the long run, I tend to think that a jury is not going to like what (Cherry) did. That’s not too American to surreptitiously tape record somebody.”

For whatever reason, the jurors may have felt otherwise. Naley, Hardy and McGee said they did not believe Pina-Ruiz’s testimony.

Closing arguments. As he had throughout the entire trial, Silverman directed numerous barbs at the prosecution’s two star witnesses during closing arguments. He called Jacobs “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.” He accused Pina-Ruiz of lying about her statements on the Cherry tape.

Silverman also attacked Carpenter for delivering a variety of “unfair, misleading and cheap” remarks.

Carpenter said, “He’s ripping me up one side and the other. . . . I thought, ‘You know, it would be so easy for me to get up and rip him a new one.’ But I know that juries don’t want to hear that. Juries want to hear the evidence.”

Silverman said he had no regrets about lambasting the prosecutor or his two star witnesses.

“Donovan Jacobs was a Doberman pinscher, Sarah Pina-Ruiz did lie and demonstrably so,” Silverman said. “You don’t mince words when you talk about something like this. . . . You strike hard blows but not foul ones. That’s where I draw the line. As long as you are hitting above the belt, you can hit as hard as you’re capable of hitting.”

Carpenter decided he would not dwell on the negative or fire the final salvo against Silverman when the prosecution’s turn came to address jurors for the last time.

Instead, he told the jury how Silverman was such a “persuasive, charming individual” and what an outstanding job he had done in defending Penn. But Carpenter reminded the jurors to concentrate on the evidence and not to be influenced by Silverman’s emotional arguments.

When he finished, Carpenter left the courtroom and began the long walk toward the prosecutor’s office. On the way, several black spectators who had watched most of the trial stopped to congratulate him.

“That meant a lot to me,” Carpenter said. “It really did.”

As the prosecutor climbed into his car and drove home, tears welled up in his eyes.

“I started crying. It was just such a weight off my shoulders. And I went home and my family said, ‘Well, how’d it go?’

“I stood there and cried in front of my kids. I’ve never done that before.”

Deliberations. Silverman accused the district attorney’s office of twice engaging in “outrageous governmental misconduct” while the jury considered the charges for a record 27 days.

Despite Carpenter’s sensitivity about challenging black members of the jury, the district attorney’s office launched an investigation during deliberations into allegations that Hardy had discussed the case with co-workers. The defense said that state law prohibits investigations that could affect ongoing deliberations.

In addition, Carpenter for 12 days had held a potentially damaging document about Jacobs’ academy training that surfaced during deliberations. The 11-page transcript consisted of a taped conversation between Jacobs and his training officers regarding Jacobs’ support of using aggression and epithets when confronting minorities.

Hamrick did not receive the document--which Silverman described as “devastating” to the prosecution--until two weeks after police had delivered it to Carpenter. The judge ruled against a defense motion to reopen the trial and introduce the transcript to jurors because he did not want to interrupt deliberations.

In light of the alleged misconduct, Silverman said he intends to file a motion this week to dismiss all of the remaining undecided charges against Penn.

The verdict. On Thursday, the jury stunned Carpenter and other law enforcement officials in San Diego by acquitting Penn of murder and attempted murder. The jurors voted 11-1 to acquit Penn of the attempted murder charge of Pina-Ruiz. They were split 10-2 in favor of acquittal on the manslaughter in Riggs’ death and in Jacobs’ shooting.

Carpenter said he has recommended that the district attorney’s office retry Penn, who was released Thursday night after 15 months in jail. The new trial is scheduled to begin Aug. 25.