Judge Won’t Block New Trial for Penn : Rules Actions of the District Attorney Had Not Harmed or Prejudiced the Case

Dealing a crushing blow to Sagon Penn’s hopes of avoiding a second trial, a Superior Court judge denied Monday a defense motion to dismiss the remaining charges in the controversial police murder case.

Judge Ben W. Hamrick refused to allow defense attorney Milton J. Silverman to call witnesses about allegations that, during jury deliberations in Penn’s first trial, the district attorney’s office engaged in “outrageous governmental misconduct” by withholding crucial evidence in the case for 12 days and by launching an improper investigation to remove a juror.

Hamrick said he does not disagree with Silverman’s contention that prosecutors were “wrong” in keeping secret a police document critical of an officer shot by Penn or in investigating a juror after promising not to do so. But he said the actions by the district attorney’s office did not “harm or prejudice” Penn’s case.

“Such conduct does not warrant dismissal of the charges because of the public interest of having the merits of this case decided by a jury,” Hamrick said.

The judge suggested that an independent investigation into the district attorney’s office by the state attorney general or the county grand jury would be more appropriate.

But Silverman, who said he will appeal the decision this week to the 4th District Court of Appeal, scoffed at any chance of a third party investigating prosecutors.

“There won’t be any attorney general investigation. There won’t be any grand jury investigation,” Silverman said. “Nothing will happen. . . . The power structure is in place, and the power structure is going to protect the power structure.

“They’ve had ample opportunity to do something. Nothing is ever done unless someone in the judiciary does something.”

Penn, 24, was acquitted June 26 on charges of murder and attempted murder in the March 31, 1985, slaying of San Diego Police Agent Thomas Riggs and the wounding of Agent Donovan Jacobs.

Dist. Atty. Edwin Miller, who has belittled defense allegations that his prosecutors acted improperly in the case, has decided to retry Penn on the charges that were undecided by the jury in the first trial. Those charges were the attempted murder in the shooting of civilian ride-along Sarah Pina-Ruiz; voluntary manslaughter in the death of Riggs; and attempted voluntary manslaughter and assault in the wounding of Jacobs.

Penn, who was freed from jail the night of the verdicts, did not attend Monday’s hearing. His father, Thomas Penn, expressed disappointment after Hamrick’s decision.

“All I wanted the people to do is learn the truth, and they can’t have it now,” Thomas Penn said.

Silverman said he was shocked by Hamrick’s decision Monday. He said at the very least he expected the judge to allow him to spend several days calling witnesses to determine whether the prosecutor’s conduct denied Penn a fair trial.

“I think I have a fundamental, constitutional right to provide evidence and cross-examine witnesses on the issue.” Silverman said.

Deputy Dist. Atty. Robert Phillips, however, said he never had any doubt that Hamrick would deny the defense motion to dismiss the case.

“We haven’t done anything that would warrant dismissal,” Phillips said.

Phillips argued in court that the Penn case is not the appropriate setting for Silverman to “slander” the district attorney’s office.

“What we’re doing today is allowing Mr. Silverman to act as a one-man prosecutor in effect to give the district attorney’s office a black eye,” Phillips said. “Whether or not we made some mistakes might be an issue in public and in our office, but it is not an issue in this case.”

Phillips accused Silverman of using Monday’s hearing to discredit the district attorney’s office and the Police Department and to “indoctrinate” potential jurors who will hear the second trial.

“I don’t want to turn this thing into a witch hunt,” Phillips told Hamrick. “We can sit here and Monday-morning quarterback all day long. Our motives were good.”

Silverman contended that Penn would have been acquitted of all charges had it not been for the prosecution’s “outrageous governmental misconduct.”

He said the prosecution probe of juror Vernell Hardy 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, who prosecuted the case, first learned of reports that Hardy reportedly said before the trial that Penn may be innocent, Carpenter told Hamrick he would not pursue an investigation into the matter.

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

Silverman said Monday that investigators pressured Hardy’s co-workers into making statements so the investigators could gather evidence to remove Hardy from the case.

Hamrick agreed that the district attorney’s office had defied his orders, but he said the inquiry did not prompt Hardy to vote against Penn. On the contrary, Hardy was among the strongest defense jurors.

Silverman also told Hamrick on Monday that not a single witness had testified about defense allegations of how a police officer and prosecutors withheld a transcript of a taped 1978 interview in which three police training sergeants criticized Jacobs for hostile behavior, including a willingness to use profanity and racial slurs against minorities.

Silverman has called the transcript “the single, most important piece of evidence in the case” and said it could have been used to support defense contentions that Jacobs had a history of engaging in racial attacks.

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

On Monday, Silverman produced a police internal affairs report that quoted a secretary at the academy, Terrie Hubbard, as saying that Castro showed her the transcript shortly after the March 31, 1985, shooting. Hubbard told the investigators that Castro said to her, “Look what I found.”

Silverman said one of his investigators attempted to question Hubbard last week but police officers at the academy interceded and refused to allow an interview.

Hubbard’s statement contradicts claims by Castro that she first discovered the transcript last fall and did not read the document or understand its significance to the case, Silverman said.

After police gave the transcript to prosecutors, the district attorney’s office held onto the document for 12 days while the jury decided Penn’s fate.

Silverman asked Hamrick to hold an evidentiary hearing Monday in which the defense attorney could question Castro, Burgreen, Police Chief Bill Kolender and other members of the Police Department and the district attorney’s office to determine the truth about how the document was discovered and who decided to hold onto it for several months.

Silverman told the judge he didn’t believe statements by prosecutors that they needed 12 days to consult supervisors and decide what to do with the transcript. Instead, he has alleged that prosecutors held onto the report to guarantee a guilty verdict in the first trial.

“I’d like you to find out if they’re lying to you or not.” Silverman told Hamrick. “I think you’ve been jerked around and I’ve been jerked around and the people of San Diego have been jerked around. And I think it’s time that it stop . . .

“The day is gone, your honor, when you can withhold evidence from the defense . . . What they like to do is come in and say, ‘OK, we cheated and lied but Penn wasn’t convicted. Lah-dee-dah-dee. You can’t do anything.’ ”

But Hamrick said the new evidence would not have substantially benefited Penn’s case because the jury overwhelmingly voted to acquit Penn.

“Obviously, the jury disbelieved Donovan Jacobs and he was discredited or your client would have been convicted of murder charges,” Hamrick told Silverman.

Silverman argued that he could have used the transcript to convince the lone holdout juror, foreman Douglas Bernd, of Penn’s innocence.

Hamrick said that Silverman can use the new evidence in a second trial, scheduled to begin next month. The judge added that in his opinion the jury had enough evidence to convict Penn of involuntary manslaughter charges.