Jury in Penn Trial Hears Two Views on Defendant

Was Sagon Penn a “time bomb waiting to be detonated,” a “totally uncooperative” person who violently resisted a police officer’s reasonable and legitimate effort to arrest him in an Encanto driveway on March 31, 1985?

Or, was he the unsuspecting victim of an “enraged” and “bigoted” police agent who came at him with fists and billy club, like a “Doberman pinscher,” prompting Penn to seize a police revolver and open fire because he feared for his life?

Those are the two dramatic scenarios presented to jurors Tuesday during the second day of opening statements in Penn’s retrial. The Superior Court jury pondering Penn’s fate will be have to choose between the strikingly different versions of the confrontation, which left one police officer dead and another officer and a civilian observer wounded.

Penn, 25, was found innocent last June of murder and some other major charges in the slaying of Police Agent Thomas Riggs and the wounding of Police Agent Donovan Jacobs and Sarah Pina-Ruiz, a ride-along in Riggs’ patrol car. He is being retried on charges on which the first jury deadlocked, heavily favor of acquittal. Those charges range from assault to attempted murder.

In a calm and deliberate manner, Deputy Dist. Atty. Michael Carpenter Tuesday outlined his argument that Penn provoked the fatal encounter by refusing Jacobs’ request to see his driver’s license.

Carpenter said Penn had a “duty” to assist Jacobs, who allegedly was searching for an armed gang member in the neighborhood and believed Penn or a passenger in his truck may have been that suspect.

“If there had been cooperation on the part of Penn (the traffic stop) would have been a 30-second affair,” Carpenter told the jury. “It would have been less than a 30-second intrusion into Mr. Penn’s day.”

Instead, Carpenter maintains, Penn “walked away” from Jacobs after the officer demanded that he remove his license from his wallet. After Jacobs grabbed Penn by the arm, Penn struck Jacobs and “became totally impossible to deal with,” Carpenter said.

Such behavior, and Penn’s obvious skills in martial arts, prompted Jacobs and Riggs to wield their police batons, “not to beat up Mr. Penn but to effect an arrest,” Carpenter said. As Jacobs and Penn fell to the ground, Jacobs straddled Penn--who was lying on his back--”trying to get him to submit to arrest and submit to handcuffs.”

Still, the prosecutor said, Penn “refused to cooperate.” Carpenter argued that Penn “lost his temper” and speculated that his “ego” and record in martial arts competitions made him reluctant to “lose a fight and submit to an arrest” in front of his friends and half-brother.

“It was at that point, tragically, that Penn yanked (Jacobs’) gun out, held it to Jacobs’ neck and shot him,” Carpenter recounted. Penn then shot Riggs three times and finally stood and fired two shots at Pina-Ruiz. All six shots were fired in less than six seconds.

Penn fled the scene in Jacobs’ patrol car and returned to his grandfather’s house. He turned himself into police 15 minutes later.

Concluding his opening statement, which was more than four times the length of his introductory remarks in the first trial, Carpenter told jurors that Penn did not have the right to self-defense in this case because the officers were not using “unreasonable force” against him.

Silverman, in his opening statement, said there are few facts on which the prosecution and the defense agree.

“The evidence will show that what Mr. Carpenter just told you ain’t so,” Silverman said. During a two-hour address that featured photographs, maps and other props and will continue today, Silverman attacked Jacobs’ character and argued that the officer’s behavior drove Penn to use the gun in self-defense.

“In that moment when Donovan Jacobs got out of his car and Sagon Penn got out of his truck Sagon Penn could not know that Donovan Jacobs, from the day he went to the Police Academy, was a bigot, a hothead, a racist, that he had a very short fuse and he didn’t take no stuff from nobody about nothing,” Silverman said.

“The truth is,” Silverman continued, “Donovan Jacobs approached the truck hostilely, aggressively, like a Doberman pinscher.”

Silverman proceeded to perform a reenactment of the altercation between his client and the two officers--an animated display that left the defense attorney red-faced and almost breathless.

He danced through a few karate moves and demonstrated how Penn deflected the officers’ baton blows. He sprawled on the floor and held his hands over his face, imitating Penn’s protective efforts. He grabbed a police stick and smashed it against a file cabinet, sending a ripple of gasps through the packed courtroom.

Shouting “Boom, boom, boom,” he simulated Jacobs raining blows down upon Penn as he lay on his back. He described for the jury numerous witnesses’ testimony that Jacobs, as he was beating Penn, said, ‘You think you’re bad, nigger, I’m gonna’ beat your black ass,’ and called him other racial slurs.

Finally, Silverman described how Penn grabbed Jacobs’ revolver because he feared for his life.

“Penn could hear the crowd saying, ‘You’re gonna kill him. They’re gonna kill you,’ and he got really scared,” Silverman said. “So he reaches up with the gun and cocks it. ‘I got your gun! I got your gun! Please stop! Please stop!’ ”

Then, Silverman told the jury, Riggs kicked Penn’s arm and the gun discharged, firing a single bullet into Jacobs’ neck. As Riggs went for his gun, Penn turned the weapon on him before firing at Pina-Ruiz, who he believed was another officer.

Near the end of the day, Silverman played an ace that he was unable to use in the first trial--a transcript of a counseling session Jacobs attended while a recruit at the Police Academy in 1978. The transcript is expected to be key to the defense because it describes Jacobs’ supervisors criticizing the cadet for a willingness to use racial slurs in police work. Jacobs testified in the first trial that the word nigger is not in his vocabulary.

“In this counseling session . . . grave doubts were expressed about Donovan Jacobs’ fitness for service in the San Diego Police Department because of certain character traits that Donovan Jacobs had,” Silverman said. “Like believing it was OK to use racial epithets if it got the job done. Believing it was OK to call homosexuals faggots.”

Silverman will likely continue his discussion of the transcript as he concludes his opening statement today. The first witnesses in the case also are expected to take the stand.

Also on Tuesday, Judge J. Morgan Lester granted a request by Silverman that prosecutors provide the defense with the names of some of the witnesses they intend to call in advance of their testifying. Lester said Silverman may submit a list of 10 witnesses for which he wishes to have advance notification.