Probe of D.A.’s Conduct in Penn Case Requested

The American Civil Liberties Union on Thursday called on the San Diego County grand jury to investigate whether the district attorney’s office engaged in “willful or corrupt misconduct” when it attempted to oust a juror who overturned a guilty verdict in the Sagon Penn police murder trial.

The request, the first such ACLU action directed against the San Diego County district attorney’s office that ACLU officials can remember, is based on an incident that occurred during jury deliberations.

Prosecutors decided to investigate juror Vernell Hardy after she told a Superior Court judge in a bedside interview May 21--one day after giving birth to a son--that she had second thoughts about a verdict finding Penn guilty of assault with a deadly weapon.

Hardy’s statements led the judge to set aside the verdict, which incensed the district attorney’s office and caused prosecutors to pursue a previous anonymous complaint that Hardy had told her co-workers that Penn, who is black, was the victim of racial prejudice and should be set free.

Transcripts of closed hearings unsealed after the lengthy trial revealed that, in an effort to remove Hardy from the jury, district attorney investigators interviewed eight of Hardy’s co-workers at a Pacific Bell office in Kearny Mesa to find out if Hardy had expressed any sentiments about Penn. Penn was on trial for killing one San Diego police officer, severely wounding another and wounding a civilian ride-along.

When Hardy heard about the interviews from a co-worker, she went to Superior Court Judge William E. Todd Jr. to ask why investigators were asking questions about her. Todd ordered the district attorney’s office to stop its probe and told Hardy not to let it affect her deliberations.

The transcripts showed that Penn’s attorney, Milton J. Silverman, requested a mistrial on grounds of outrageous conduct by the district attorney’s office, a request the judge denied. Prosecutors said they simply were concerned about getting a fair trial.

On June 26, the jury found Penn innocent of murder in the March 31, 1985, shooting death of Police Agent Thomas Riggs and attempted murder in the shooting of Police Agent Donovan Jacobs. The jury deadlocked, 11-1, in favor of acquitting Penn of attempted murder in the shooting of Sarah Pina-Ruiz, the civilian ride-along. He faces a retrial on the unresolved charges.

The ACLU said it decided to call for an independent investigation into alleged jury tampering and contempt of court by the district attorney after details of the Hardy probe were reported in The Times on July 9.

“It appears the conduct by the district attorney’s office violated an agreement made between the defense counsel, the prosecutor, and the court, that no investigation of any juror would be conducted without prior court approval,” according to a letter sent to the grand jury by Burton Johnson, president of the ACLU’s San Diego chapter.

“The grand jury should inquire into why the district attorney’s office directed an investigator to talk to co-workers of one of the jurors during jury deliberations,” Johnson said in his letter. “It is obvious such conduct, if discovered by a juror, could impact the impartial nature of deliberations.”

Louis Katz, a San Diego attorney who is on the ACLU’s litigation committee, said in a telephone interview that the ACLU wants the grand jury to seek the assistance of either the state attorney general or a special outside counsel because the district attorney, which advises the grand jury, would be placed in a conflict of interest.

“The way we saw it,” explained Katz, “we were disturbed about an invasion of rights against the juror . . . an infringement on her rights.”

Edward Meyer, a Coronado resident who is chairman of the grand jury, was unavailable for comment.

The district attorney’s office questioned both the timing and the motive of the ACLU’s request.

“There is no question of the legality of the (Hardy) investigation . . . what is being challenged is the propriety of it,” said Steve Casey, spokesman for the district attorney.

He labeled as “curious” the timing of the ACLU’s letter because a hearing on a motion by Silverman to dismiss the charges still pending against Penn--in part based on the Hardy investigation--is scheduled for Monday.

“That issue is before the court. . . . Why the ACLU chose to wade in at this moment raises suspicions of meddling,” Casey said. “The article appeared a month and a half ago . . . and (since then) both sides have extensively briefed the case.

“There’s nothing new to the complaint except adding more noise.”

Greg Marshall, the local ACLU legal director, took exception to Casey’s characterization.

“I resent the insinuation that our action has any involvement with the defense of Sagon Penn,” Marshall said. “We haven’t had any involvement in that case. This has nothing to do with the Penn case except that the juror investigation arose in that case.

“It could have occurred in any case.”

He said the reason it took so long for the organization to ask for an investigation is that “more than anything else, this is a volunteer organization and frequently things don’t happen as rapidly as we’d like.”

It was because of the ACLU’s view that it is a “watchdog of government,” Marshall said, that it decided to pursue the alleged jury tampering matter.

Meanwhile on Thursday, the Sagon Penn Defense Committee presented the district attorney with the signatures of 7,219 people on petitions asking that prosecutors drop all remaining charges against Penn.

The petitions were also delivered to the offices of Mayor Maureen O’Connor, City Manager Sylvester Murray and City Councilman William Jones.

Casey said the petitions would not influence the district attorney’s office.

“It’s not proper to make prosecutorial decisions based on a show of hands,” he said. “Public sentiment can’t be allowed to influence the analysis of the case. Our decision was that it had to go forward to retrial.”