San Diego D.A. to Seek New Trial for Penn

San Diego County Dist. Atty. Edwin Miller said Thursday he will seek a new trial for Sagon Penn, who was acquitted last month of the most serious charges he faced in a police murder trial.

The decision means Penn, 24, faces retrial on charges of attempted murder in the shooting of civilian ride-along Sara Pina-Ruiz, voluntary manslaughter in the death of Police Agent Thomas Riggs, attempted voluntary manslaughter in the wounding of Police Agent Donovan Jacobs, and assault with a deadly weapon for driving over Jacobs with Jacobs’ car. The jury deadlocked on those charges.

Miller said a streamlined trial on the less serious charges could turn around the result of Penn’s first trial, a four-month marathon that ended with Penn’s acquittal June 26 on charges of murder and attempted murder for the March 31, 1985, shootings in a Southeast San Diego driveway.

“We’ll be trying the case on lesser charges and we’ll be trying it with a new and different jury,” Miller said. “That in and of itself will make a difference.”

Defense attorney Milton J. Silverman reiterated Thursday his intention to seek a dismissal of all the remaining charges against Penn, based on the failure of police and prosecutors to turn over a Police Academy transcript critical of Jacobs in time for it to be presented to jurors.

“If they want to go again, I’m ready, willing and able to defend Mr. Penn,” Silverman said. He predicted that a second trial would be similar to the first in scope, length and number of witnesses.

Miller said he made the decision to continue pressing the case against Penn in consultation solely with attorneys in his office--including Deputy Dist. Atty. Michael Carpenter, who again will try the case, this time with the assistance of Deputy Dist. Atty. Wayne Mayer.

“Law enforcement has its viewpoint and so does the minority community,” Miller said. “But none of those factors were considered.”

He said he had received letters concerning the case from citizens, but no official communications from either law enforcement or groups supporting Penn.

In the first trial, jurors voted heavily to acquit Penn on all the charges, but they deadlocked largely because of some jurors’ sense that Penn overreacted to actions by Jacobs. But the jurors held Jacobs responsible for starting the confrontation.

Reaction to the district attorney’s decision followed predictable lines.

Assistant Police Chief Bob Burgreen said officers in the San Diego Police Department--many of whom were bitterly disappointed with the jury verdicts in the first trial--wanted to see a conclusive judgment in the case.

“Most officers from this department feel this entire matter has yet to be completely resolved,” he said. “Some serious charges were left hanging that we’d like to see resolved, and we think they should be resolved before a judge and jury.”

Reiko Obata, chairwoman of the Sagon Penn Defense Committee, scored Miller’s decision.

“Nothing was left unresolved,” she said. “All the counts were decided by the jury and every single one of them was overwhelmingly in favor of acquittal. It’s clear that the only thing the district attorney’s office and the Police Department are interested in is a conviction.”

In a statement issued Thursday afternoon, Miller said: “A thorough review of the way in which this case was tried, of evidentiary rulings made by the court and the weight of the evidence convinced me that we must go forward to retrial.”

Later, in an interview, Miller declined to specify rulings by San Diego County Superior Court Judge Ben W. Hamrick that he viewed as going against prosecutors in the first trial. Nor would he discuss how prosecutors may adjust their strategy for a retrial.

But Miller said the opportunity to have seen how witnesses performed in court and how jurors seemingly responded to the evidence obviously would help his staff prepare for trying the case again.

“You know as well as I do that we have a very unique factual circumstance here,” Miller said. “This time, I think, we have seen the reaction of jurors under those circumstances, and we’ll treat it accordingly this time around.”

Jacobs and Riggs stopped Penn, whom they took to be a gang member, as they patrolled the Encanto community the evening of March 31, 1985. Witnesses testified that an altercation began when Penn refused Jacobs’ order to remove his driver’s license from his wallet as he showed it to the officer.

When Penn turned to walk away, Jacobs grabbed him by the arm and threw a punch, observers testified. Several witnesses said Jacobs told Penn, “You think you’re bad, nigger . . . I’m going to beat your black ass.”

Jacobs insisted at the trial that he did not use racial slurs and had never used the word nigger.

A struggle broke out, and Penn fell to the ground with Jacobs sitting on his chest. Penn reached for Jacobs’ gun, raised it to the officer’s neck and fired one shot. Silverman argued that the gun discharged when Riggs kicked Penn’s arm.

Penn turned and shot Riggs three times. He stood and pointed the weapon at Pina-Ruiz, who was watching from Riggs’ patrol car. Penn then shot her twice, jumped in Jacobs’ patrol car and drove away, running over Jacobs as he fled.

Interviewed after the trial, jurors said they were unanimous in concluding that Penn, who is not a gang member, was acting in the heat of passion--at least in the seconds until he fired at Pina-Ruiz. Jury foreman Douglas Bernd broke with the others at that stage, leaving the jury deadlocked, 11-1, for acquittal on the charge that Penn attempted to murder Pina-Ruiz, the civilian ride-along.

The jury deadlocked, 10-2, in favor of acquittal on the manslaughter charge in Riggs’ death; 10-2 for acquittal on the charge of attempted voluntary manslaughter in Jacobs’ wounding, and 8-4 for acquittal on the charge of assault with a deadly weapon for running over Jacobs with the patrol car.

Silverman contends that the transcript of a 1978 Police Academy counseling session with Jacobs, then a police recruit, would have persuaded the jurors to acquit Penn on all charges had it been presented as evidence in the first trial.

During the session, Jacobs told a training officer he would use the word nigger and other epithets as a last resort in a confrontation. One trainer told Jacobs:

“There’s something about this job, Don, that catches up with you. It’s the frustration. If you can’t deal with it, you’re only going to cause yourself some harm as well as other people. . . . You’re going to have the community coming all over you as well as the department.”

Police turned over the document to prosecutors May 21, after jury deliberations had already begun, and Carpenter brought it to Hamrick’s attention on June 2. Hamrick decided not to call the jury back to hear the transcript as evidence.

Miller said Thursday that his office is prepared to vigorously resist Silverman’s move to have the charges dismissed for alleged prosecutorial misconduct.

Miller said he was making the only decision he could to satisfy all sides’ demands for justice in the case.

“The only way you can satisfy anyone is through the legal process and, in this case, through a public trial,” he said. “If people aren’t satisfied, then I don’t know what I can say.”

Times staff writer Glenn F. Bunting contributed to this story.