Key Officer Backs Jacobs Transcript : Lieutenant Recalls Tape Criticizing Trainee for Force, Racial Comments

A San Diego police lieutenant testified Thursday that he has “no reason to disbelieve” the authenticity of a Police Academy transcript considered a crucial piece of evidence in the defense of suspected police killer Sagon Penn.

Lt. Richard Bennett said that he believes he made a tape recording of an August, 1978, disciplinary session with then-Police Cadet Donovan Jacobs and that the transcript appears to accurately reflect the discussion.

Bennett’s statements during the third day of a pretrial hearing before Superior Court Judge J. Morgan Lester are the first definitive testimony that the counseling session took place. In it, Bennett and two other training officers criticized Jacobs for his willingness to engage in hostile behavior and to make racial remarks.

Defense attorney Milton J. Silverman is seeking to use the transcript as evidence in Penn’s retrial on charges of killing Police Agent Thomas Riggs and wounding Jacobs and civilian ride-along Sara Pina-Ruiz during a confrontation in Encanto in March, 1985.

Lester ruled Wednesday that the transcript is relevant to the case, saying it would be useful to impugn Jacobs’ character and to contradict his testimony that he would never engage in the sort of behavior he was criticized for at the academy.

But Silverman still must prove the authenticity of the document, which he obtained from prosecutors amid much mystery while the jury was deliberating in Penn’s first trial last June.

Deputy Dist. Atty. Robert Phillips, who will cross-examine Bennett early today, said Thursday that Silverman “hasn’t even come close” to winning the right to use the transcript at Penn’s retrial.

On Thursday, Silverman walked Bennett through the 11-page transcript page by page. At some points, Bennett said only that the comments were typical of those made by training officers in counseling sessions.

At other points, however, Bennett testified that the transcript accurately reflects what he recalled of the session with Jacobs.

For instance, Silverman read aloud a portion of the transcript in which Jacobs purportedly talked about about his willingness to use “professional profanity” to disperse a crowd. Silverman then asked Bennett whether he recalled that portion of the counseling session.

Bennett answered, “I can’t picture in my mind him saying those words, but as I read the document, I believe those are similar words to what I heard him say in the interview.”

Jacobs is scheduled to testify today about the authenticity of the transcript.

Silverman also is seeking to prove that police and prosecutors hid the document from Penn’s defense team. If so, the retrial jury would be told about the suppression of evidence and allowed to draw conclusions about it.

Bennett’s appearance came after two days of testimony by San Diego Police Officer Jenny Castro, who claims she discovered the transcript in an unused office at the academy in the fall of 1985 and turned it over to top police officials during the first Penn trial last May.

Near the end of her testimony, Castro--who repeatedly said she could not recall the dates of occurrences, the names of co-workers and the reasons for her actions--testified that she suffers from a memory disorder. The revelation came as Silverman questioned her about information she provided police internal affairs investigators when they were looking into the discovery of the transcript last spring.

Castro testified that she could not recall supplying some of the facts related in an internal affairs report.

“It strikes me as quite extraordinary that your memory is that frail,” Silverman retorted. “Do you have a memory problem of some kind?”

Castro answered “Yes” and said the problem predated her eight years as a police officer.

Silverman asked whether there were instances when the memory lapses had affected her police work.

“There could have been instances,” Castro replied.

“But you’ve forgotten them?” Silverman asked.

“Yes,” she said.

Silverman questioned Castro for hours, looking for contradictions and variations in her version of the events from her discovery of the transcript to her decision to give it to Assistant Police Chief Bob Burgreen on May 20.

Repeatedly, she testified that she found the document, probably in September or October, 1985, while cleaning out an unused academy office in preparation for its use by an officer about two weeks later.

But Silverman told her that Police Department records showed the officer was not assigned to the academy until the last week of May, 1986--a week after she gave the transcript to Burgreen.

Castro said the information left her “confused.”

Later, Silverman told reporters that Castro’s testimony left him in agreement with Police Chief Bill Kolender, who testified Wednesday that Castro’s story about finding the document “didn’t smell very good.”

“Yesterday, Chief Kolender said he was skeptical of the account about this document,” Silverman said. “All I can say is I agree with Chief Kolender.”

Deputy Dist. Atty. Michael Carpenter said Castro’s confusion about the sequence of events surrounding discovery of the transcript is “of no significance whatsoever.”

Carpenter said in an interview, “She didn’t take notes at the time. It was of no great significance to her. She’s trying to recall the best she can.”

Penn was acquitted 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.