Told of Slaying Scene Videotape Last Fall, Penn Attorney Says

Defense attorney Milton J. Silverman said Wednesday that he first learned about a police videotape of the homicide scene in the Sagon Penn murder case last fall, and that in December prosecutors denied his request for a copy of the footage.

The videotape first surfaced inside the San Diego Police Department on Sept. 12--nearly 18 months after the March 31, 1985, shootings--during a routine inventory of the police video library. Police officials said last week they were “embarrassed” that homicide detectives had failed to document the videotape on evidence logs.

“In my experience, it is extremely incomprehensible that the videotape wasn’t mentioned in any police report,” said Silverman, who returned from vacation this week.

Shortly after he agreed to represent Penn last October, Silverman said, several eyewitnesses told him that police detectives had used a video camera to record the crime scene on the night of the shootings.

In court papers filed Dec. 5, Silverman requested “prints, photographs and videotapes” of the homicide scene and any victims or witnesses, according to court records. On Dec. 15, Deputy Dist. Atty. Robert Phillips responded that all such evidence had been provided to the defense.

Phillips said Wednesday that he did not direct police to turn over a videotape because he was not aware that detectives had filmed the crime scene.

“Silverman likes to kind of lay in the weeds and play this game,” Phillips said. “He makes so many accusations . . . it’s hard for me to pick out which ones have validity and which ones don’t.

“If he had indicated to me that he thought there was a videotape and pulled that out of his list of accusations, I would have gone and checked it out for him. Nothing indicated to me that there was a videotape, so I didn’t make a big deal out of it.”

Penn’s first trial ended in June when a jury acquitted the 24-year-old black man of murder in the slaying of Police Agent Thomas Riggs and attempted murder in the shooting of Police Agent Donovan Jacobs. Penn now faces a possible retrial on four unresolved charges, including the attempted murder of civilian ride-along Sarah Pina-Ruiz.

Silverman, who has spent the last three days reviewing the 15-minute videotape, said he found the film “interesting.” He disagreed with earlier statements by prosecutors and police officials that the videotape depicts the same images contained in still photographs.

“It contains significant information that will be useful at the trial,” Silverman said. “I’m not going to say what it is.”

The videotape focuses on the location of evidence such as police weapons, vehicles and blood stains. It also shows Riggs’ body.

Deputy Dist. Atty. Michael Carpenter scoffed at Silverman’s contention that the tape contained new, important information.

“I think I told you last week that he would say, ‘This is the single most important piece of evidence and I didn’t have it in the first trial,’ ” Carpenter said.

The prosecutor was referring to Silverman’s well-publicized comments after the Penn trial regarding an 8-year-old police transcript of a counseling session with Jacobs. The memorandum dealt with the concerns of Police Academy instructors over Jacobs’ views that it was acceptable for police to use obscenities in some circumstances. Silverman called the document, which surfaced during jury deliberations and was not introduced at the trial, the “single most important piece of evidence” in the case.

The police videotape is one of at least three new pieces of evidence that police have disclosed since the end of the first trial, Silverman said.

Homicide Sgt. James Manis recently found a note he had written to himself as a reminder that he had given Penn’s driver’s license to Penn’s father, Thomas, on the evening of the shootings, according to Silverman. During the trial, Manis said that police detectives could not account for the license.

Manis declined Wednesday to comment on the matter.

Also, the defense recently received a copy of a letter Police Chief Bill Kolender sent to Navy officials asking that Pina-Ruiz receive preferential treatment in obtaining desirable military housing. Navy officials quickly responded to the request by placing Pina-Ruiz in a new residence.

Pina-Ruiz’s housing became an important issue in the first trial when Carolyn Cherry, a Navy housing clerk, said that Pina-Ruiz told her she did not see much of the shooting. Earlier in court, Pina-Ruiz had dramatically described how Penn shot the two officers and turned the gun on her.

Carpenter said it was not appropriate for him to discuss any evidence prior to the second trial.

The state Supreme Court has delayed the beginning of the trial pending a decision on whether to review a defense appeal to dismiss the remaining charges because of “outrageous governmental misconduct” by the prosecutor’s office.

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