Penn Asks That Charges Be Dropped

Bitterly challenging the integrity of San Diego County prosecutors, the attorney for suspected police killer Sagon Penn asked Tuesday that the remaining charges be thrown out.

In documents filed in Superior Court, attorney Milton J. Silverman said prosecutors deliberately set out to deny Penn a fair trial by keeping secret a police document critical of one of the officers shot by Penn and by investigating a trial juror after promising a judge they would not do so without the judge’s permission.

Plans by the district attorney’s office to retry Penn, 24, on the charges on which the trial jury deadlocked in June amount to double jeopardy prohibited by the U.S. and California constitutions, Silverman argued in a harshly worded, 72-page motion.

“It is apparent that the purpose and intent of the prosecution was to secure a conviction at the cost of Mr. Penn’s right to a fair trial,” Silverman contended.

Superior Court Judge Ben W. Hamrick, who presided in Penn’s four-month trial, will hold a hearing Aug. 25 on the defense motion to drop the remaining charges against Penn. That was the date previously set for Penn’s retrial to begin.

Dist. Atty. Edwin Miller has belittled the defense contentions, which Silverman had disclosed in previous court motions, and has said his office is prepared to defend its conduct in court.

Steve Casey, a spokesman for Miller, said Tuesday, “It’s all been brought up before, and it doesn’t seem to have gotten any more meritorious with age.”

Prosecutors plan a thorough, written response to the defense claims before the Aug. 25 hearing, he said.

Jurors acquitted Penn on June 26 on charges of murder and attempted murder in the slaying last year of Police Agent Thomas Riggs and the wounding of Police Agent Donovan Jacobs and civilian ride-along Sara Pina-Ruiz.

Miller announced two weeks later that he would seek to retry the Southeast San Diego man on charges of attempted murder in the shooting of Pina-Ruiz, voluntary manslaughter in the death of Riggs, and attempted voluntary manslaughter and assault in the wounding of Jacobs.

But Silverman argues in the newly filed documents that “outrageous prosecutorial misconduct” should strip Miller of the right to bring Penn back into court.

As expected, the defense motion focuses on two incidents that came to light during jury deliberations, prompting heated closed-door hearings and a succession of 11th-hour appeals.

In the first incident, Silverman contends that prosecutors improperly withheld a transcript of a taped 1978 police academy disciplinary interview in which three sergeants upbraided Jacobs for impulsive, hostile behavior, including a willingness to use profanity and racial slurs.

The defense lawyer says the transcript “was the most important single piece of evidence in the case” and could have been used to challenge both Jacobs’ testimony that he harbored no racial biases and the testimony of the prosecution’s character witnesses about Jacobs’ conduct. Throughout the trial, Silverman insisted that Jacobs’ racial slurs and manhandling of Penn provoked the shootings.

San Diego Police Officer Jenny Castro found the transcript in an unused office at the academy in September, but she told police internal investigators she repeatedly forgot about it until handing it over to Asst. Chief Bob Burgreen on May 21.

Document Handling Criticized

Jurors in the Penn trial returned a guilty verdict that day on one count--a verdict that later was set aside when juror Vernell Hardy told Hamrick she had second thoughts about the decision.

In the court papers, Silverman expresses incredulity at the coincidence, noting that Castro turned over the document to superiors only “when it appeared the (defense) would be forever foreclosed from moving for a reopening of the case because the jury had returned a guilty verdict.”

Prosecutors magnified the harm to Penn by holding onto the document for 12 days before giving it to Hamrick, Silverman contends. He calls the delay a deliberate effort to deny Penn a fair trial.

Casey dismissed the allegations of misconduct as “fantasy.”

A confidential police report submitted with the defense motions reveals for the first time that internal investigators concluded Castro “used extremely poor judgment” in failing for months to turn over the transcript to superior officers.

“Castro’s actions resulted in further complicating the Sagon Penn case and caused unnecessary negative publicity for the department,” the five-page report by Sgt. Joseph J. Costa said.

Jury Tampering Alleged

Silverman’s second contention is that the prosecution investigation of Hardy’s conduct broke a promise made to Hamrick, constituted jury tampering and violated the legal profession’s canon of ethics.

In March, when Deputy Dist. Atty. Michael Carpenter first learned of reports that Hardy had told co-workers before the trial that Penn should be set free, he told Hamrick he would not pursue an investigation of the allegations.

But after Hardy changed her mind about the jury’s initial guilty verdict, investigators for the district attorney’s office interviewed eight of Hardy’s fellow employees at a Pacific Bell office in Kearny Mesa.

Upon learning of the inquiry, Hamrick ordered the jury sequestered--a decision he reversed when Hardy and another juror threatened to quit unless they were reunited with their families.

Silverman contends the prosecution actions “visited enormous, unnecessary, and brutal hardship upon the jurors and their deliberations in connection with Mr. Penn’s fate.”

Miller has defended the investigation. “If the allegations we heard were true, there was every reason to believe we had a ringer on the jury and our right to a fair trial was abridged,” he said in a letter to The Times published last month.