Jacobs Concedes He May Have Resorted to Profanity

Police Agent Donovan Jacobs, testifying for a fifth day Tuesday in the retrial of Sagon Penn, conceded that he may have used obscene language during what became a deadly confrontation with Penn almost two years ago, and said he believes the use of some expletives can be appropriate in police work.

But, contrary to the testimony of numerous other witnesses in Penn’s first trial, Jacobs insisted that he did not call Penn a “black bastard” or use other racial slurs during the March 31, 1985, encounter in an Encanto driveway.

As defense attorney Milton Silverman wrapped up his cross-examination of Jacobs, the officer vigorously defended his use of what he termed “professional profanity,” testifying that foul language may be necessary in some police situations if a softer approach fails.

“We don’t want police officers going around cussing out little old ladies in La Jolla. That wouldn’t be appropriate,” Jacobs said.

“But a lot of times the people we come across are a little different. They’re drug addicts, junkies, ex-cons, psychos . . . So we may say, ‘Damn it, I told you to move!’ It may not be what citizens would like us to use, but it’s effective,” Jacobs said.

When asked whether he used the word “f-----” in his confrontation with Penn, as many other witnesses have previously testified, Jacobs replied, “I would say it’s in the realm of possibility that I used it, yes.”

Jacobs said he picked up the technique of using such language while at the Police Academy but conceded that it is not a subject routinely taught to recruits.

Penn, 25, was found innocent last summer of murder and other major charges in the shooting death of Police Agent Thomas Riggs and the wounding of Jacobs and civilian ride-along Sarah Pina-Ruiz. He is being retried on five charges, ranging from assault to attempted murder, on which the jury failed to reach a verdict.

The trial is expected to last several months.

Silverman aims to prove that Jacobs, 30, triggered the fatal altercation by launching a brutal assault on Penn. Silverman argues that Jacobs called Penn racial names and beat him with his fists and baton to the point where Penn grabbed the officer’s revolver and shot Riggs, Jacobs and Pina-Ruiz out of fear for his life.

Deputy Dist. Atty. Michael Carpenter argues that Penn sparked the episode by refusing Jacobs’ legitimate request to remove his driver’s license from his wallet after a traffic stop.

On Tuesday, Silverman concluded his detailed cross-examination of Jacobs, who has been reassigned to desk duty with the Narcotics Street Task Force because his arm is partly paralyzed from the shooting.

The defense attorney spent most of the day asking about the 11-page transcript of an August, 1978, counseling session involving Jacobs and three supervisors while Jacobs was a recruit at the Police Academy. Silverman views the transcript, which surfaced mysteriously during jury deliberations during the first trial but was not admitted as evidence at that trial, as key to his case because it raises questions about Jacobs’ approach to police work.

In the transcript, Jacobs is upbraided by the supervisors for demonstrating a willingness to use racial slurs and other derogatory terms in the performance of his duties. According to the transcript, Jacobs at that time said he might use the word “nigger” in certain situations “if all else failed,” and said it was acceptable to use obscene and profane terms and call homosexuals “faggots . . . as long as it gets the job done.”

During the counseling session, Jacobs’ superiors told him that such views did not constitute the “professional conduct” that the Police Department wanted to see in its officers, and warned him to change his behavior if he wanted “to fit well into (the department’s) philosophy of how to treat the general public.”

Silverman contends that the transcript is “a chilling prophecy” of Jacobs’ encounter with Penn. But Carpenter has questioned the document’s authenticity, and Jacobs said Tuesday that, he recalled the counseling session but believes the tape could have been transcribed inaccurately.

Nonetheless, Silverman employed the document to question Jacobs about his views on police conduct then and now. On some subjects, such as the use of profanity, Jacobs said his views as expressed in 1978 remain the same.

“It’s ugly and it’s not nice to see uniformed police officers, people you respect, use profanity,” Jacobs testified. “But if you can use a key word to keep something from getting out of hand,” it is appropriate.

When asked whether he still believes racial slurs may be effective in some instances, the officer said, “No, because I’ve come into contact with a lot of people since then, . . . and I’ve discovered there is no situation where using racial remarks would de-escalate the situation.”

In another line of questioning intended to place doubts about Jacobs’ conduct in the minds of jurors, Silverman attempted to suggest that the officer resists guidance from supervisors and rebels against counseling.

To demonstrate that, Silverman cited a 1981 incident in which Jacobs was told by a commanding officer not to hang around in a clique with three other officers. Jacobs testified that he disagreed with his supervisor’s evaluation of the situation and made up a badge saying “Clique” as a joke in response to the reprimand.

In addition, Silverman noted Jacobs’ court statement that the supervisors in the 1978 academy counseling session may have been criticizing him for beliefs they themselves shared.

Silverman: “Do you have the impression that they approved of professional profanity even though they said that they didn’t?”

Jacobs: “To a certain extent, yes.”

Jacobs later explained that he feels that superior officers tend to use a “Do as I say, not as I do” approach to instructing officers of lower rank.

Silverman: “It sounds like you think there are a lot of things the superiors in the Police Department say that they don’t mean.”

Jacobs: “To a certain extent, that’s true.”

Silverman queried Jacobs about how much time he had spent reviewing his previous testimony with Carpenter. The officer said he spent about 10 hours going over his prior statements with the district attorney and four hours on his own.

Jacobs testified that he also discussed his demeanor on the stand with Carpenter and decided to look at the jury “so they can look at me, look in my eyes, and determine whether I’m telling the truth.”

Also on Tuesday, the officer revealed that he had dropped his civil lawsuit against Penn for damages related to his injuries. Jacobs said he abandoned the idea when he realized that Penn had no money and that Silverman might file a countersuit. A civil suit by Pina-Ruiz against Penn and the San Diego Police Department is still pending.

Attendance at the trial was lighter than usual Tuesday. Among those present were friends and relatives of Penn and Jacobs, and Riggs’ widow, Colleen.