Sagon Penn Retrial Strategy : Prosecutors Seek Ban on Jacobs Transcript

The San Diego County district attorney’s office sought Monday to bar from Sagon Penn’s retrial any mention of an eight-year-old Police Academy counseling session that Penn’s lawyer has termed “the single most important piece of evidence in the case.”

Prosecutors supplied defense attorney Milton J. Silverman with a transcript of the session, in which Police Agent Donovan Jacobs was upbraided for hostile behavior and a willingness to use racial slurs, only after jury deliberation had begun in Penn’s first trial on charges of killing Police Agent Thomas Riggs and wounding Jacobs and a civilian.

In motions filed Monday, prosecutors said the transcript--one of the key elements of an appeal by Silverman that delayed the start of Penn’s retrial for months--was “stale” information whose authenticity the defense was unable to demonstrate.

Silverman, though, insists that the record of the 1978 counseling session is essential evidence for the defense’s contention that Jacobs had a history of engaging in racist behavior. The defense lawyer sought in the first trial to persuade jurors that Jacobs provoked Penn to shoot in self-defense by attacking him and degrading him with racial slurs.

The prosecution request, while expected, was the most dramatic legal move Monday as the district attorney’s office and Silverman began positioning themselves for a retrial scheduled to begin Jan. 20 in San Diego County Superior Court.

Penn was found innocent in June of murdering Riggs and of attempted murder in the wounding of Jacobs--the most serious charges against him stemming from the clash in Encanto on March 31, 1985.

Jurors deadlocked but leaned strongly toward acquittal on the charges on which the Southeast San Diego man will be retried--voluntary manslaughter in Riggs’ death, attempted murder in the shooting of civilian ride-along Sara Pina-Ruiz, and attempted voluntary manslaughter and assault with a deadly weapon in the wounding of Jacobs.

The documents, filed minutes before the courthouse closed Monday, outline defense and prosecution arguments for allowing jurors in the retrial to hear, or not hear, certain information about the case. Evidence-related rulings made by Superior Court Judge Ben Hamrick in the first trial will have no bearing on the retrial, which is scheduled to be conducted by Judge David Gill.

Silverman declined to make his papers available to reporters, but said they were “pretty much the same” as those he filed before Penn’s initial trial and “not very earth-shaking.” Gill’s decision on whether to admit evidence about the Police Academy counseling session will be the only evidentiary ruling that “would make a difference” in the outcome of the retrial, Silverman added.

Anticipating the defense motions, Deputy Dist. Atty. Robert Phillips sought to again block the admission of evidence and testimony Silverman had tried unsuccessfully to use in the first trial.

Among the information prosecutors want barred as irrelevant and prejudicial are accusations that Jacobs was involved with mercenary and white supremacist groups, had worn or collected Nazi memorabilia, and had refused to be interviewed by police investigators after the shootings without an attorney present.

Phillips also wants to stop Silverman from questioning Jacobs and other witnesses about Jacobs’ role in photographing or keeping files on alleged street gang members in Southeast San Diego.

Prosecutors seek, too, to bar testimony about an alleged extramarital affair involving Pina-Ruiz and a police officer, or about Pina-Ruiz’s efforts to obtain a job as a San Diego police officer.