Penn Was a Man Without Choices, Defense Tells Jury

Sagon Penn was a man without choices, his attorney said Friday--a high-minded innocent provoked by the vicious attack of a racist police officer to empty a revolver in self-defense.

Defense attorney Milton J. Silverman, launching his closing argument in Penn’s retrial on charges of killing one San Diego police officer and wounding a second and a civilian ride-along, said Penn might have died had he not fought off the attack by Police Agent Donovan Jacobs.

On Thursday, Deputy Dist. Atty. Michael Carpenter had asked the San Diego County Superior Court jurors to put themselves in the shoes of Jacobs and his slain colleague, Police Agent Thomas Riggs, and then to understand the threat posed by Penn, whom he characterized as an “arrogant” and “brazen” martial-arts expert.

But Silverman, in more than five hours of sometimes-rambling remarks, urged the jury to instead consider Penn’s position. Pinned and pummeled, the object of Jacobs’ racial slurs, told to give himself up but under continuing attack, Penn grabbed Jacobs’ gun and started firing out of fear for his life.

Penn “was measuring the amount of time he had in heartbeats,” Silverman said. “And maybe he made the right decision and maybe he didn’t. But I’d like to know: What other decision was there?”

While Carpenter had focused resolutely on what he described as flaws in Penn’s character, Silverman spent hours--as he had spent weeks during each of Penn’s lengthy trials--locking the jury’s attention on the defects he perceived in Jacobs’ nature.

“He wears your emblem of authority on his breast,” Silverman said of Jacobs. “And the issue in this case comes down to that. The issue is whether he was fulfilling the laws of the state of California, the power you bestowed upon him by pinning that badge on his breast, or whether Donovan Jacobs is a racist bully, a hothead, who escalates situations and gets his partners into deep trouble.”

Silverman emphasized evidence that was unavailable at Penn’s first trial a year ago--a transcript of a Police Academy counseling session with Jacobs in 1978 and the testimony of three former police officers--to once again paint a portrait of Jacobs as the ill-willed instigator of the deadly confrontation in Encanto on March 31, 1985.

He noted:

- The testimony of Billy Anderson, who said he watched Jacobs, just weeks before the Encanto shootings, slam a young black man over the roof of a car and was then threatened with similar treatment because he criticized Jacobs’ conduct. Prosecutors had challenged Anderson’s story with testimony that Jacobs was not working the day of the alleged incident, but Silverman said the former officer was simply confused about the day of the week it occurred.

- The testimony of Nathaniel Jordan, who said Jacobs was overaggressive in the field and regularly used terms like nigger and boy to refer to black suspects--and once to him, provoking a squad-room confrontation.

- The testimony of Drew MacIntyre, now a minister in Alpine, who called Jacobs “one of the most prejudiced white people I’ve known” and “an ideal candidate for the Ku Klux Klan.”

- The language of the academy counseling session, in which Jacobs, then a trainee, was berated for his aggressiveness and his willingness to use profanity, slurs and lies in his police work.

Jacobs, the lead-off prosecution witness in the retrial, denied harboring racist feelings or using racial epithets. But Silverman reminded the jury that some of the inflammatory phrases Jacobs used during the training session nine years earlier--for instance, his statement that he might use racial slurs if they “got the job done”--were echoed almost word for word during the encounter with Penn or in his trial testimony.

Jacobs, Silverman said, was “not fit to be a police officer” and was a danger to his colleagues, because his aggressiveness created situations from which he had to be rescued.

Silverman dwelled on the testimony of Doyle Wheeler, a former police lieutenant who came under heavy attack from the prosecution for purported psychiatric problems and his sharp differences with departmental superiors. Wheeler testified that he had warned other police officials of Jacobs’ hotheaded and bigoted tendencies, only to be ignored.

‘Code of Silence’

His testimony and that of the other former officers, Silverman said, was an act of courage in defiance of a Police Department “code of silence” that sought to disguise Jacobs’ true character.

“I’m outnumbered,” Silverman said. “Mr. Penn was beaten on March 31, 1985. He was ganged up on. The power of the state was ganging up on him. But the beating he got on March 31 didn’t stop then. It’s gone on to this day--most of it by silence.”

Like Carpenter, Silverman he drew heavily on three statements that Penn gave to police in the hours after the shootings but were not admitted as evidence in Penn’s first trial. The statements, Silverman said, showed Penn as a naive, peace-loving adherent to Buddhism--a young man concerned with issues of right and wrong who had planned four days after the shootings to apply for a job as a police community service officer.

“Donovan Jacobs may have been prepared for . . . a gang member,” Silverman said. “He may have been prepared for . . . a ‘nigger’ or ‘boy.’ But he wasn’t prepared for total innocence.”

Also like the prosecutor, Silverman asked the jury to try to relive the battle between Penn and the two officers that ended in gunfire and death.

Carpenter had argued Thursday that Penn turned a routine police stop “into a life-and-death struggle” by his arrogant refusal to remove his driver’s license from his wallet when Jacobs asked to see it. When they began to fight, Carpenter said, Penn escalated the contest by using his brown-belt karate skills to challenge and antagonize the officers--and finally to wrest away Jacobs’ gun and start shooting.

A Different Story

Silverman told a different story. Relying on the statements of Penn and the testimony of numerous eyewitnesses to the confrontation, he argued that Jacobs’ antagonism and racial slurs put Penn on the defensive.

Trained by his martial-arts education to walk away from fights whenever possible, Penn sought to move away from Jacobs, only to be grabbed by the officer and ultimately be pinned on the ground beneath him, Silverman said.

Penn blocked blows from the batons of Jacobs and Riggs, shouting to the officers to stop and asking what he had done wrong, the defense lawyer recounted. But Jacobs--unaccustomed to confronting an opponent trained in self-defense--only grew more enraged, Silverman said.

Meantime, the crowd gathered around the wrestling pair was yelling that the officers were going to kill Penn, Silverman continued. The officers ordered Penn to put his hands behind his back and to turn over, but compliance would have left him wholly vulnerable to Riggs’ and Jacobs’ aggression.

“Sagon Penn is on his back, looking up at the sky,” Silverman said. “And his heart’s pounding, and his eyes are wide, and four witnesses say he started to shake.”

Penn could not have dropped his defenses, Silverman said. “One of the blows from the baton, if it penetrates through his hands, his last defense, can cave his skull in or knock him out, and then he’s at the mercy of Donovan Jacobs, who can do to him what he wants,” the lawyer explained.

So Penn--acting in desperate self-defense, according to Silverman--grabbed Jacobs’ gun from its holster, cocked it, held it up and asked the agent to stop.

‘What Would You Do?’

Silverman quoted from Penn’s statements to the police. “I felt like I was going to die,” Penn said. “I thought they were going to kill me.”

The defense lawyer asked the jurors to imagine they were in Penn’s position, instead of the safety of a courtroom. “What would you do?” Silverman said. “Think how hopeless you’d feel.”

Carpenter had argued that Penn’s martial-arts training stripped him of the claim that he was acting in self-defense. Because the baton blows had not harmed him, he could not now claim the officers had used excessive force, Carpenter said. And because Penn’s skills emboldened him to fight back, rather than submit, he could not claim to have made a reasonable man’s judgment that the officers posed a threat to his life, according to the prosecutor.

But Silverman contended that Penn, in the face of a tremendous threat from Jacobs and Riggs, in fact showed remarkable restraint.

He would have used his karate skills to attack assailants who were not in uniform, Silverman suggested. Instead, he noted, Penn told detectives he fired Jacobs’ gun only after Riggs kicked his shooting arm.

And though the testimony of eyewitnesses was in conflict about whether Penn actually pulled the trigger, Silverman argued that there the prosecution never showed that he ever formed an intent to kill Jacobs. Similarly, Silverman said there was no proof beyond a reasonable doubt that Penn intended to kill Riggs or Sarah Pina-Ruiz, the civilian ride-along cowering in Riggs’ cruiser, with the five shots he fired at them in the following six seconds.

Silverman is scheduled to continue his closing statement Monday. Carpenter will have an opportunity to rebut it, and then Judge J. Morgan Lester will instruct the jury in the laws relevant to the case before the panel begins its deliberations.