High Court Halts Start of Penn Retrial : State Justices Have 90 Days to Decide on Hearing Appeal to Dismiss Charges

The California Supreme Court called an 11th-hour halt Friday to Sagon Penn’s scheduled retrial on charges of shooting two San Diego police officers and a civilian observer.

The court issued, without comment, an order at mid-afternoon postponing the start of the retrial in San Diego County Superior Court until the justices can study defense attorney Milton J. Silverman’s petition for a review of lower-court decisions refusing to toss out the charges against Penn. The case was scheduled to begin with jury selection Monday afternoon.

By law, the Supreme Court now has 90 days to decide whether to review Silverman’s petition, which asks either that the charges against Penn be dismissed or that the Superior Court be ordered to hold a hearing on his contention that prosecutors engaged in misconduct during the first trial.

If the justices agree to review the case, there are no time limits on how long they can take to consider Silverman’s appeal.

Silverman, who worked into the early morning Friday to assemble the petition, said he was gladdened by the Supreme Court’s action. On the other side, prosecutors’ elation a day earlier at a state appellate court’s refusal to review the case gave way Friday to disappointment at the high court order.

“We’re in that peculiar spot known as limbo,” Steve Casey, a spokesman for the district attorney’s office, said after the ruling. “Certainly we’re less comfortable now than this morning, because we were prepared to go to trial Monday and thought that was where we should be.

“Any delay is disappointing. But this case has been full of disappointments.”

Penn, 24, was found innocent June 26 of a murder charge in the shooting death of San Diego Police Agent Thomas Riggs and charges of attempted murder in the wounding of Police Agent Donovan Jacobs.

Dist. Atty. Edwin Miller is seeking to retry Penn on an array of lesser charges on which the jury deadlocked in the initial, four-month trial. The remaining counts include charges of voluntary manslaughter in Riggs’ death, attempted murder in the shooting of civilian ride-along Sara Pina-Ruiz, and attempted voluntary manslaughter and assault in the wounding of Jacobs.

The case, which has raised the ire of the police and the black community alike, stems from a confrontation March 31, 1985, in Encanto. Penn admits shooting the officers and Pina-Ruiz, but he says Jacobs attacked him and used racial slurs, instigating the confrontation.

Silverman’s appeal argues that prosecutors wrongfully concealed the transcript of a 1978 disciplinary session in which three Police Academy sergeants upbraided Jacobs for impulsive, hostile behavior, including a willingness to use racial slurs. He also contends that prosecutors broke a promise to Superior Court Judge Ben W. Hamrick, who presided in the first trial, not to investigate a black juror’s conduct in the course of the proceedings.