Judge OKs Use of Disputed Transcript in 2nd Penn Trial

The yellowed transcript of an 8-year-old Police Academy counseling session can be used as evidence in the retrial of accused police slayer Sagon Penn, a Superior Court judge ruled Tuesday.

The decision by Judge J. Morgan Lester, after seven days of testimony, could prove to be a crucial victory for defense attorney Milton J. Silverman, who has called the document “the single most important piece of evidence” in Penn’s defense.

Lester rejected prosecutors’ contention that Silverman failed to prove the authenticity of the document, which surfaced mysteriously during jury deliberations in Penn’s first trial last year.

In the transcript, Police Agent Donovan Jacobs, then a trainee, is sharply criticized by three training sergeants for his willingness to use racist remarks and hostile behavior in the course of police work.

Silverman insists that the document offers a chilling prophecy of the events of March 31, 1985, when Penn shot and killed Police Agent Thomas Riggs and wounded Jacobs and civilian ride-along Sara Pina-Ruiz. According to the defense scenario of the confrontation, Jacobs instigated the shootings by beating Penn and verbally attacking him with racial slurs.

Silverman and Deputy Dist. Atty. Michael Carpenter, the lead prosecutor in the case, disagreed about the importance of the ruling allowing the transcript’s use in the retrial.

“It substantiates everything we’ve said from Day One about Donovan Jacobs’ attitude and conduct,” Silverman said.

“This is one step on a very long journey,” Carpenter said. “There’s no reason to think it will have any great effect.”

Lester said he based his decision, in part, on the fact that all the participants in the counseling session testified that they recalled it and could point to no inaccuracies in the transcript, even if they lacked word-for-word recollection of the August, 1978, discussion.

Particularly telling, he said, was the mention in the transcript of such details as Jacobs’ previous employment at Jack in the Box, Taco Bell, Alpha Beta and Grossmont College.

“It would be inconceivable to the court that this knowledge could float in through the ethers and be deposited on some page,” Lester said.

He noted, too, that Assistant Police Chief Bob Burgreen testified that he had no reason to doubt the transcript’s authenticity, and that there was evidence that Police Chief Bill Kolender also had said the transcript was genuine.

Kolender testified last week that he was uncertain about the document’s authenticity and had harbored doubts since the document first surfaced in May.

Kolender said he could not recall telling reporters and editors for the San Diego Tribune that the transcript was authentic. Times reporter Glenn F. Bunting testified Tuesday that Kolender, in an interview in June, said he had “no reason to question” the transcript’s authenticity.

Prosecutors will be allowed to raise questions about the origin and genuineness of the transcript during Penn’s retrial, Lester said, so jurors will have the final say about how much weight to assign to the document.

Deputy Dist. Atty. Robert Phillips, noting that no witnesses testified as to how the transcript was made, had argued that there was no proof that it was wholly accurate.

There also was no proof, he said, that it was not somehow altered between August, 1978, and the fall of 1985, when Police Officer Jenny Castro testified that she found the document in an abandoned office at the Police Academy.

“We don’t know where that thing was . . . or how it was created or whatever,” Phillips said. “There’s no problem that there was an interview. The problem is: Does this accurately reflect what that interview was all about?”

Pre-trial hearings will resume this morning, and Silverman predicted that jury selection for will begin this week.

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.