Apparent Blunders Cited in Probe of Penn Case

San Diego Deputy Police Chief Don Davis said Thursday he will “address” a series of apparent blunders by homicide detectives who investigated the Sagon Penn police slaying case nearly 18 months ago.

Davis, who is in charge of police special operations, said he was unaware of criticisms that surfaced during the Penn trial about the way investigators gathered evidence at the scene of the shootings.

On Wednesday, the district attorney’s office confirmed that a 15-minute videotape of the homicide scene surfaced for the first time last Friday inside the San Diego Police Department. The tape was made by Detective Gil Padilla within two hours of the March 31, 1985, shootings.

Calling the discovery “very embarrassing,” Davis said that Padilla forgot to include the tape on his evidence list.

The tape represents one of several apparent blunders by homicide detectives on the Penn investigation. These include taking inaccurate measurements of evidence at the crime scene, failing to take photographs while conducting a re-enactment of the shootings and neglecting to ask witnesses critical questions about what they observed.

“I certainly think that we should be as thorough as possible and I would not expect inaccurate measurements to be taken or things of (this) nature . . . “ Davis said. “I think our homicide people are excellent investigators. That doesn’t mean they don’t err at times.

“Certainly the videotape incident was a terrible mistake. It wasn’t documented and it wasn’t presented to the district attorney. We constantly go over our processes and procedures and our investigations. When these kinds of things come to our attention, we address them.”

Veteran criminal investigators interviewed by The Times on Thursday criticized the Police Department for not following standard investigative procedures for collecting criminal evidence.

“I think the chief of police and other high administrative officers are not doing their job of training these officers on how to conduct a proper investigation,” said Dick Repasky, a former special agent for the Secret Service and Defense Investigative Service. “ . . . They get mad at defense attorneys (for) finding cracks in their investigation.”

Ralph DeGutis, a member of the San Diego County Criminal Investigators Assn. since the group was formed in 1962, said he believes police investigators often assume a suspect is guilty before they have finished their investigation. DeGutis speculated that homicide detectives didn’t “objectively” manage the Penn case because one fellow officer had been slain and another seriously wounded.

In June, a jury acquitted Penn of murder in the shooting death of Agent Thomas Riggs and attempted murder in the shooting of Agent Donovan Jacobs. Penn faces a possible retrial on four unresolved charges, including the attempted murder of civilian ride-along Sarah Pina-Ruiz.

“This guy already did his dirty deed,” said DeGutis, a criminal investigator for the Marines for 17 years who now works as a private detective. “You’re not interested in determining anything else. It’s a matter of filling in the blanks. You do it with your hypothesis already solved. You don’t look for anything else.

“You’re supposed to investigate everything and let the facts fall where they may. No one objectively was out there doing this. If you go out there and your mind is already made up, you’re not conducting a criminal investigation. You’re conducting what you want to conduct.”

Davis said he does not believe that homicide detectives would allow the slaying of one of their colleagues to affect their impartiality in investigating a police murder.

“I think we’re well aware of the emotional side of a police shooting where an officer is killed or injured or something of that nature,” Davis said. “The homicide people are really professional . . . They make every effort to avoid becoming emotionally involved in these things.

“I can’t speak for them individually, but I’ve seen them at scenes. They go about their business just like they would at any other homicide, no matter what they feel inside . . . They are very good at their job.”

Based on transcripts of the Penn trial and interviews with police officials, the following are some of the techniques used by detectives that have been criticized:

- Padilla, who was placed in charge of the crime scene probe, used an inaccurate method to document the placement of evidence. To locate two police cars, weapons, tire tracks and other evidence, Padilla used an imaginary curb line as a reference point.

Padilla testified that he was able to make out a curbline late at night by using a street light, even though the street where the shooting took place is unpaved and has no curb.

In a private conference, defense attorney Milton J. Silverman told Superior Court Judge Ben W. Hamrick, “The purpose of a crime scene reconstruction is to find out precisely where a particular item is. Part of the difficulty that we encountered in the case is the fact that (Padilla) is measuring from a curbline that doesn’t exist . . . For example, he just drew a bloodstain up by the left front fender of the car. The bloodstain isn’t there.”

Deputy Dist. Atty. Michael Carpenter told Hamrick that Padilla said “he didn’t mean to be precise.”

Responded Silverman: “I do mean to be precise.”

In court, Padilla’s measurements were largely discounted in favor of those reported by an expert criminalist hired by the defense.

- Padilla videotaped the crime scene and prosecutors were never told about the tape. Davis said that video cameras are not normally used by San Diego Police for homicide investigations. But because the crime scene was so large and the homicide was “significant,” an unknown police official decided to use a video camera, Davis said.

But the tape was not turned over to prosecutors or the defense for 18 months because Padilla forgot to tell anyone of its existance. The tape was discovered last Friday as the Police Department prepared to move its library to new headquarters.

“It didn’t come up during (the detectives’) many meetings discussing the evidence,” Davis said. “ . . . Why it didn’t is just a question that can’t be answered. We don’t know.”

Padilla, who had conducted about a dozen crime scene investigations before the Penn shooting, did not return calls on Thursday. According to police officials, Padilla claims he told Sgt. James Manis about the tape and neglected to make note of it in his evidence log. Manis said he could not recall ever being told about a videotape, according to police officials.

“Officer Padilla or any of our officers know full well that isn’t sufficient,” Davis said. “They have to record it in a documentary way. It should be included in the evidence list.”

- Several detectives acknowledged during the trial that they didn’t solicit key information from some eyewitnesses. For example, Detective Richard L. Thwing told Silverman that he asked one witness, Demetria Shelby, what she saw and heard and added no other specific questions.

At one point in the interview, Shelby told Thwing she saw Jacobs on top of Penn “striking him with his fist.”

Silverman asked Thwing: “You didn’t ask where he was striking with his fist, did you?”

Thwing: “No.”

“Or how many times?”

“No.”

“Or how hard?”

“No.”

“Or how long?”

“No.”

“Were you curious?”

“No.”

”. . . You have been a homicide detective how long?”

“Nine years.”

“Do you ordinarily interview witnesses as thoroughly as you did this witness?”

“Yes.”

Several witnesses also testified that they told police investigators that Jacobs used racial epithets during the fight with Penn. But no police documents reported those statements and police investigators testified they never heard such charges. Other witnesses who heard the epithets said they didn’t tell investigators because they weren’t asked.

- After Penn turned himself into police on the night of the shootings, he told detectives that he looked into a police car at Pina-Ruiz, but could only see a figure moving because of the sun’s reflection on the car window.

Carpenter directed police detectives to go back to the scene two days later and re-enact the shootings at the same time to determine whether Penn’s vision was actually blurred by the sun.

Detective Gary Murphy admitted during the trial that he neglected to take along a camera to photograph the window and did not consult police measurements to put the car in the exact location. Instead, he placed the car “in the approximate scene as I knew it” based on his memory from seeing the vehicle on the night of the shootings.

Murphy said he was aware that Padilla had taken measurements of the car’s location, but he did not bother to request the information.

- Carpenter sent a team of detectives back to the scene exactly a year after the shootings later to conduct a similar re-enactment. This time the investigators brought a camera. But, according to testimony by police evidence technician Gary Avery, investigators were not interested in learning the truth. Rather, they wanted to get a photograph that would disprove the defense theory that Penn’s vision was blurred by the sun.

“The defense entered a picture that had the sun showing in the window, and we were going out there to photograph it at a particular time to show that the sun was not reflecting in the window,” Avery said. “That is the only reason I was out there at that time.”

Davis said he was not “personally aware” of these techniques used by police investigators, but said he planned to inquire about them.

” . . . I certainly will bring them to the attention of the people in homicide,” Davis said. “. . . I would expect them to have the answers . . . “