Penn Defense Wins Ruling on Document : Transcript on Police Academy Counseling Session With Jacobs Relevant, Judge Says

The defense for suspected police killer Sagon Penn moved a giant step closer Wednesday to being permitted to use an 8 1/2-year-old Police Academy transcript as evidence in Penn’s retrial when the judge in the case ruled the document was relevant.

Defense attorney Milton J. Silverman, who repeatedly has been rebuffed in his efforts to get the document before a jury since it surfaced during Penn’s first trial last year, now must persuade San Diego County Superior Court Judge J. Morgan Lester that the transcript is authentic.

That effort got off to a fitful start late Wednesday afternoon as San Diego Police Chief Bill Kolender testified that he was unable to recall telling a roomful of newspaper reporters and editors that he believed the document was genuine.

The 11-page transcript, dated Aug. 4, 1978, purports to recount an academy counseling session in which training officers upbraided then-Police Cadet Donovan Jacobs for his willingness to use racial epithets and hostile behavior in the course of police work.

Silverman has termed the document “the single most important piece of evidence” for Penn’s defense, which contends that a hostile Police Agent Jacobs instigated the March 31, 1985, confrontation that resulted in the shooting death of Police Agent Thomas Riggs and the wounding of Jacobs and civilian ride-along Sara Pina-Ruiz.

After listening to hours of arguments by Silverman and Deputy Dist. Atty. Robert Phillips, Lester ruled that the transcript was relevant evidence to challenge Jacobs’ testimony about his own conduct, to impugn Jacobs’ character and to serve as circumstantial evidence about Jacobs’ possible inclination to engage in hostile conduct.

A judge, Lester said, “must allow a defendant to put on his full defense.”

He rejected Phillips’ contention that the document was too old to be an accurate reflection of Jacobs’ character at the time of the 1985 shootings, noting that prosecutors often use criminal charges at least as old to impugn the integrity of criminal suspects.

“What’s good for one should be good for another,” Lester said.

Phillips also had argued that the transcript should be barred from the retrial, because Silverman was likely to ask jurors to put an undue emphasis on its significance and because its meaning was “ambiguous.” Some jurors, he said, will understand the document as saying that Jacobs was admitting his failings and expressing a willingness to improve his performance, while others will interpret it as evidence that Jacobs was a bigot and “show-off.”

“It’s only going to tend to confuse them and separate them on an issue that shouldn’t be before them,” Phillips said.

But Lester said the weighing of evidence is exactly the task jurors are called upon to perform in court.

“A jury should have the option to make the very determination Mr. Phillips finds as a danger,” Lester said. “If there are conflicting interpretations, that is for a fact-finder to interpret.”

It remains wholly in Lester’s hands, however, whether the jury in Penn’s retrial will get to hear testimony about the transcript.

That will depend on Silverman’s ability to persuade the judge that the document--which surfaced under mysterious circumstances nearly eight years after the events it describes--is real.

Silverman began the undertaking Wednesday with a two-hour grilling of San Diego Police Officer Jenny Castro, the one-time training officer who found the transcript in an in-box at the academy in the fall of 1985 and turned it over to Assistant Police Chief Bob Burgreen last May, during Penn’s first trial.

Castro, appearing shaken at times under Silverman’s relentless questioning, said she tossed the transcript into the trunk of her car and forgot about it for two months, but then brought it with her to a meeting attended by minority officers, Burgreen and Kolender.

Her intent, she said, was to turn the papers over to the chief directly. “I figured the less people whose hands it went through the better,” she said.

“Why?” Silverman asked.

“Things get lost,” Castro answered. She added: “More than anything else, I was afraid the media would get a hold of it and make a mountain out of a molehill.”

She testified that she ended up giving the document to Burgreen, the department’s second-in-command. Kolender then took the stand and testified that Burgreen gave the transcript to him.

Kolender said he was suspicious of Castro’s story about finding the document while cleaning out an unused office at the academy, but decided he should immediately turn the papers over to the district attorney’s office.

From the outset, the chief said, he had doubts about the document’s authenticity.

“We discussed the fact that it came up after all these months and the story that it was left on a desk and it didn’t smell very good, and we decided we didn’t know if it was real or not,” Kolender said.

He testified that he could not recall telling reporters for the San Diego Tribune that he believed the transcript was authentic. The newspaper reported Oct. 1 that Kolender had told its editorial board during an interview that the document was genuine.

“I don’t remember,” Kolender said. “I’ve been misquoted before.”

When word of the document’s existence first became public in June, top police officials, in their public comments, raised no reservations about the transcript’s authenticity. For instance, Burgreen--who is out of the city but has been subpoenaed by Silverman to testify--praised Castro for having the courage to hand over the document to police officials.

“I wonder how many people would be so honest to bring forward a document that is eight years old, hidden in a desk, that no one knows about, that may hurt a police officer and help a person being prosecuted for killing a police officer,” he told The Times in June. “I hesitate to be critical that it took her eight months to do it. It took a lot of guts for her to do that. It took a person with a very special sense of justice.”

Castro’s testimony was expected to continue today. Silverman also plans to call half a dozen other police officials--including Jacobs and the officers who counseled him--in his efforts to authenticate the transcript.

Penn was found innocent last year of charges that he murdered Riggs and attempted to murder Jacobs.

He is being retried on charges on which the first jury deadlocked, heavily in favor of acquittal: voluntary manslaughter in Riggs’ death, attempted murder in the shooting of Pina-Ruiz, and attempted voluntary manslaughter and assault with a deadly weapon in the wounding of Jacobs.