Penn’s Second Trial Will Reopen Wounds for Blacks and Police

When jurors in the trial of suspected police killer Sagon Penn filed from the courtroom last June to begin their deliberations, there was hope that a painful, divisive episode was drawing to a close.

For this was no ordinary trial. Charges that the young black man from Southeast San Diego murdered one white police officer, attempted to kill another and wounded a woman passenger aggravated racial tensions and sent police relations with the black community plummeting.

Now, eight months later, the traumatic, emotionally wrenching events are to again be replayed in court.

Penn was found innocent of first-degree murder and other major charges in the March, 1985, shooting death of Police Agent Thomas Riggs and the wounding of Agent Donovan Jacobs and Sarah Pina-Ruiz, a civilian observer riding in Riggs’ patrol car.

Jurors were heavily in favor of acquittal but deadlocked on four additional charges, ranging from assault with a deadly weapon to attempted murder.

On Tuesday, the tedious jury selection process for Penn’s second trial will enter its third week.

In some ways, the new trial will inescapably resemble its highly publicized predecessor, a dramatic affair that drew dozens of observers daily, spanned 12 weeks and saw nearly 150 witnesses take the stand.

Defense attorney Milton J. Silverman still maintains that his client was defending himself against deadly force when he shot Riggs and Jacobs, who numerous witnesses said provoked Penn with racial slurs and a hail of blows with his police baton.

Much of the evidence that the attorneys will use to present their version of the deadly encounter will be familiar from the first trial.

Still, there are differences that will add a note of unpredictability this time around. The array of charges against Penn has changed and the defense has won the right to use a document raising questions about Jacobs’ conduct as a police cadet, an addition Silverman considers invaluable to his case.

Each side will use experience gained in the first explosive court battle, but strategies and styles will undoubtedly vary as the opposing attorneys vie for advantage and surprise. Jury selection in this trial has already proved a longer, more meticulous process, with both Silverman and Deputy Dist. Atty. Michael Carpenter relentless in questioning prospective jurors.

One factor that appears to remain constant is the level of interest in the case within both the black community and law enforcement circles. Police sources say the retrial, though welcomed by officers who want a conviction in the case, will reopen old wounds and revive searing memories of their colleague’s death--memories many would rather forget.

“This has been one of the most difficult, if not the most difficult incident in the history of the San Diego Police Department,” said Ty Reid, former president of the San Diego Police Officers Assn. “This (second) trial will rehash the whole thing. . . . And with the reduced charges, it will be even more tough because the feeling of the . . . majority of officers is that Penn is literally getting away with murder.”

Moreover, many officers complain that it was Jacobs--and not Penn--whose behavior was under the spotlight in the first trial and will again be the basis for the defense. Reid said police believe such a focus is unfair and ignores the fact that “Penn’s the one who did the shooting here. . . . If anyone’s been a victim, and is a continuing victim in all of this, it’s Donovan Jacobs.”

Civic leaders in Southeast San Diego, meanwhile, view Penn as a symbol of lingering problems with police conduct in their neighborhoods.

“This trial is not just for Sagon, it’s for all of us,” said the Rev. Robert Ard, founder of the Christ Church in San Diego and a major figure in the black community for more than a decade. “The case has come to be the pinnacle of a troubling pattern of what I might call selective law enforcement. And it’s in many ways a symbol of whether we can receive justice in this community.”

In addition, black leaders say they are outraged by the district attorney’s decision to retry the case despite the jury’s first verdict and votes that were heavily in favor of acquittal--11-1, 10-2, 10-2 and 8-4--on the final four charges.

“I was certainly hoping we would not go through the expense and pain and dissension of pulling our communities apart through another trial,” Ard said. “It will not help us resolve our differences with police and move toward a more harmonious relationship with them.”

Vernon Sukumu, executive director of the San Diego Black Federation, added that many Southeast residents see a disturbing double standard in prosecutors’ decision to retry the case.

“If it was anybody else, this thing wouldn’t have gone to trial the first time and wouldn’t be going to trial again,” Sukumu said. “It’s clear from the evidence that Jacobs had a Rambo-style mentality that caused this tragedy to happen . . . and a lot of us think he’s the one who ought to be on trial.

“But here you’ve got a black boy who shot a white cop. There’s no way they’re going to let him get away with that in San Diego.”

In interviews last week, Silverman and Carpenter--neither of whom has ever retried a case--predicted that their strategies in Round 2 will differ little from those displayed in the courtroom last year.

“The evidence is the same, and the testimony will be much the same,” said Carpenter, a thin, blond prosecutor whose calm, deliberate style differs dramatically from Silverman’s peppy, flamboyant demeanor.

Still, Carpenter conceded that “we’re not assuming there won’t be surprises. Milt is a very creative and brilliant attorney and we know we’ve got to be prepared for anything and everything.”

There are several factors that both the opposing attorneys and their colleagues believe may distinguish the retrial:

- Jury selection. To courtroom observers, the jury selection process under way before Superior Court Judge J. Morgan Lester is a sure-fire sleep-inducer. One by one, prospective jurors file in--weary and cranky after a long wait in a smoky hallway--to face a repetitive battery of questions designed to reveal opinions that might bias them for or against Penn.

Despite the lack of thrills, this process is a vital prelude to the pending courtroom drama.

Silverman believes Penn would have been found innocent of all charges in the first trial but for Douglas Bernd, the jury foreman. Bernd once worked for the Police Department, issuing parking citations, and Silverman believes the foreman’s sympathies for police made him unreceptive to the defense claim that Penn acted in self-defense. The belief is shared by other jurors in the first trial.

Silverman is determined to prevent a similar juror from judging his client again.

“It’s not like I was sleepwalking the first time, but I did let (Bernd) get through,” Silverman said, admitting he erred. “This time, I’m exploring their feelings about racial issues and law enforcement more thoroughly. This time, I’m going to weed them out.”

Silverman recalls that he never directly asked Bernd whether he had worked for the Police Department, a question that is now on the form prospective jurors complete before questioning.

“I asked him, ‘Some people are 100% pro-police, some are not,’ ” Silverman recalled. “His answer was, ‘I wouldn’t say I’m 100% for police.’ That was true, technically. He was just 99.9% pro-police.”

Jury selection is also a concern for Carpenter, who worries that the first panel’s partial acquittal of Penn could make the new jury inclined to reach the same conclusions.

“It’s critical that we get 12 people who will consider this case based on the evidence and what the judge tells them, not on any opinions they may have formed because of the first verdict,” Carpenter said. “I’m being careful to get people who are not preconditioned to a particular viewpoint.”

Jury selection took two weeks in the first trial; it is expected to last a month in the current proceeding.

- The transcript. An 11-page transcript that surfaced mysteriously but was ruled inadmissible during jury deliberations in the last trial has been described by Silverman as the pivotal piece of evidence in his defense of Penn. Carpenter disputes that notion, but nonetheless fought hard in pre-trial hearings to bar the document.

The 8-year-old transcript is of a taped counseling session three training officers had with Jacobs while he was a recruit at the Police Academy. During the session, Jacobs was upbraided for his willingness to use hostile behavior and racial slurs in police work.

Silverman says the document is key because it supports the contention of numerous witnesses that Jacobs used racial epithets while he beat Penn with his night stick during the deadly March 31, 1985, encounter. According to the witnesses, Jacobs told Penn: “You think you’re bad, nigger . . . I’m going to beat your black ass.”

Jacobs’ conduct during the altercation is the heart of the defense case, so the transcript enhances Silverman’s portrait of him as a “Doberman pinscher,” someone whose actions led Penn to believe his life was in danger.

- The charges. According to some observers, the reduced charges may be an advantage for the prosecution because they are more realistic and considerably less difficult to prove to a jury than first-degree murder. In the retrial, Penn is charged with 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.

“They were talking about homicide the first time and Penn was . . . charged with homicide while everybody said he was being beat up by the officer. (The jury may have) felt there was an inequity here,” said San Diego attorney Louis Katz, former director of the county Office of Defender Services. “That won’t be as important this time when the charges are not involving murder.”

Carpenter, however, disagrees, noting that the first jury “had the same charges before them and failed to return a verdict” on them.

Silverman believes the reduced charges may actually be a burden to the prosecution because they require the district attorney to paint a complicated picture of Penn’s actions during the six seconds of shooting.

“They’ve got a real mishmash to deal with,” Silverman said. “They’ve got to demonstrate that Penn was in the heat of passion when he shot Riggs and then, two seconds later, had a cold, calculated intent to kill (Pina-Ruiz). Conceptually, they have to shift gears.”

Carpenter says he doesn’t view that as a dilemma: “We’ll just present the evidence and let them draw their own conclusions about his mental state and guilt on the range of charges.”

Opinions vary on whether the defense or prosecution has an overall advantage. In one sense, prosecutors--with the burden of proof--benefit because they are familiar with the tack the defense will take and they’ll get another chance to outmaneuver it.

“One of the big advantages for the defense is the element of surprise,” said Superior Court Judge Charles Wickersham, who was the prosecutor in the retrial of former Mayor Roger Hedgecock. “Going into a trial, you don’t know what the defense is going to do. But going into the second trial, you have a good idea--because I don’t know of many defense attorneys who hold back because they’re thinking they’re going to have a second trial.”

Silverman, however, who stunned Carpenter in the first trial with a tape recording that eroded the credibility of a key prosecution witness, says he didn’t “play all my cards” in the first go-round.

“I go into every day with an open mind,” he said. “There’s no telling what I might do.”

Meanwhile, costs for Penn’s defense--and prosecution--continue to mount, and the trial already is on its way to being among the costliest in county history.

Under an agreement with the county Office of Defender Services, Silverman is being paid the standard public defender rate of $55 an hour to represent Penn. William Kelly, the county’s assistant auditor and controller, said that, as of Thursday, Silverman had submitted bills for legal fees totaling $243,107.

The highest amount San Diego County has paid defense attorneys in a single case to date is $951,981. That covered legal fees for lawyers in the murder-for-hire case involving Laura Troiani and five ex-Marines. Troiani allegedly hired the Marines to kill her husband, Marine Staff Sgt. Carlo Troiani, on a lonely Oceanside road in 1984, in exchange for some proceeds from his life insurance policy. The case has yet to go to trial, so the amount is still growing.

Times staff writer Jim Schachter contributed to this story.