D.A. Insists Penn Case Must Go Back to Trial

In a document dotted with sarcasm, the San Diego County district attorney’s office on Monday filed its response to Sagon Penn’s request that the remaining charges involving his fatal confrontation with police be dismissed.

Calling the case “one of the most serious, most controversial criminal cases ever to be heard” in San Diego County, prosecutors said Penn should be retried even if the court finds that the district attorney’s office violated Penn’s rights by its actions during his first trial.

“If any mistakes have been made, they cannot be the source of sanctions which would result in depriving the citizens of this county of their right, through a fair and representative jury, to finally decide the disturbing issues in this case,” the 30-page brief said in its conclusion.

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. The jury failed to reach verdicts on charges of attempted murder in the shooting of civilian ride-along Sara Pina-Ruiz; voluntary manslaughter in the death of Riggs, and attempted voluntary manslaughter and assault in the wounding of Jacobs. Dist. Atty. Edwin Miller is seeking to retry Penn on those charges.

But Penn’s attorney, Milton J. Silverman, on Aug. 5 asked that the remaining charges be thrown out. Silverman argued that prosecutors deliberately denied Penn a fair trial by withholding a police document critical of one of the officers shot by Penn and by investigating a juror after promising a judge they would not do so without the judge’s permission.

In their response to Silverman’s request, the prosecutors argue that the document in question--the transcript of a police academy interview with Jacobs in 1978--has not been shown to have been relevant to the case or admissible as evidence. Prosecutors also argue that they should not be held responsible for the actions of a police officer who held the document for several months before turning it over to her superiors, and that it was neither unreasonable nor unfair for the district attorney’s office to hold the transcript for 12 days before giving it to the judge in the Penn case.

The brief took strong exception to Silverman’s claim that the document, which finally surfaced during jury deliberations in the case, could have resulted in a complete acquittal of Penn had it been turned over in time to be presented as evidence.

“Defense counsel seems to operate under the insulting assumption that if he repeats something long enough, loud enough and eloquently enough, the listener will eventually begin to believe it,” the district attorney’s argument said.

Even if the interview--in which three superiors criticized Jacobs for impulsive, hostile behavior, including a willingness to use racial slurs--showed something about Jacob’s character in 1978, it has no relevance to his behavior almost seven years later, when he struggled with Penn just before the young black man shot Riggs, Jacobs and Pina-Ruiz, prosecutors said.

“All any reasonable trier of fact can glean from the document, when read in an objective manner, is that Jacobs has an admitted propensity to be a smart aleck,” the argument said.

The prosecution ridiculed Silverman’s suggestion that the police, and then the district attorney’s office, conspired to keep the document secret until it was too late to be included as evidence in Penn’s trial. In the trial, Silverman repeatedly tried to show that Jacobs provoked the confrontation with Penn by using racial slurs. The district attorney’s brief said Officer Jenny Castro held on to the transcript for more than eight months simply because she did not know what to do with it.

“That indecision, rather than some elegantly timed plot to strip (Penn) of his every constitutional right, seems to account for her hauling the document around like so much baggage for several months before mentioning the document’s existence to (Assistant Police Chief Bob) Burgreen,” the argument said.

The court papers pointed out that the jury was deliberating for only three of the 12 days during which the district attorney’s office held the document. The prosecution used that time to interview Castro and to evaluate the document’s authenticity and relevance.

As for the district attorney’s investigation of juror Vernell Hardy, the filing said the prosecution was only trying to ensure that the trial was fair by finding out if Hardy lied when she told attorneys before the trial that she was unbiased.

“If merely wishing to secure a fair trial for the people of the State of California . . . is misconduct, then somewhere we have lost sight of the difference between right and wrong,” the argument said.

The brief said prosecutor Michael Carpenter did not, as Silverman argues, intend to promise Judge Ben Hamrick that he would not investigate comments Hardy allegedly made about the case to her co-workers. After Hardy changed her mind about the jury’s initial guilty verdict, Carpenter initiated an investigation into what had been anonymous reports of her comments.

Interviews with Hardy’s co-workers turned up allegations that Hardy had said before the trial that she believed Penn was justified in shooting the officers. During the trial, some of her associates said, Hardy told them that “everyone was more or less out to get Penn and that she was going to get Penn released,” the prosecution argument said. The investigation was halted when Hardy learned of it and complained to a judge.

Silverman argues that Hardy’s discovery of that investigation deprived Penn of a fair trial. The prosecution argues that it did not.

“Whether the conducting of this investigation was proper or not, the people respectfully submit that the only part which could conceivably have been prejudiced was the (prosecution),” the court papers said. “Ms. Hardy was aware that it was the district attorney’s office who investigated her. She told (the judge) that none of the other jurors knew of the investigation. There is no evidence that Ms. Hardy voted against the defendant as to any of the counts, or otherwise deprived (Penn) of a fair trial.”

The district attorney also criticized Silverman’s comments about the prosecution’s attempt to remove Hardy from the jury.

“While such comments make for exceptionally good news media fodder and an impressive display of righteous indignation designed to interject emotion into the issue, the comments are blatantly untrue,” the court papers said.