Lawyer Says Penn Was Trapped by Web of Police Lies

San Diego police--and witnesses sympathetic to them--wove a web of lies to ensnare Sagon Penn and to hide the racism that gave rise to Penn’s lethal encounter with two officers and a civilian on an Encanto driveway, a defense lawyer charged Monday as he pleaded for Penn’s exoneration.

Quoting from the Constitution, the Declaration of Independence, the Gettysburg Address and Martin Luther King Jr.’s “I have a dream” speech, defense attorney Milton J. Silverman told jurors that the dream of a colorblind society would be damaged if they convicted Penn in the March 31, 1985, shootings.

“That dream does not live,” Silverman declared, “in a city that will tolerate a man in uniform sitting on top of another man, beating his face, saying, ‘You think you’re bad, nigger? I’m gonna beat your black ass!’ ”

Emotional Conclusion

Emotionally concluding a three-day argument in a retrial that has lasted almost three months, Silverman said one last time that the racism of Police Agent Donovan Jacobs instigated the confrontation that left Police Agent Thomas Riggs dead, Jacobs and civilian ride-along Sarah Pina-Ruiz wounded, and Penn facing five felony charges.

“This thing was sparked, caused, created by racial prejudice, wasn’t it?” he asked the jury in San Diego County Superior Court. “They may try to cover it, to throw dirt on it, to make it hide, but it won’t do that. Because the truth has a force of its own.”

Deputy Dist. Atty. Michael Carpenter--who by court rules has the last word in the case--said as he began his final rebuttal that it was Silverman who had hurled dirt in Judge J. Morgan Lester’s courtroom. The facts and the law favor the prosecution’s case, Carpenter contended, leaving Silverman to employ personal attacks and emotional appeals.

“The defense was based on throwing mud at Donovan Jacobs, hoping some would stick,” Carpenter said. “It was based on trying to impeach the testimony of Sarah Pina-Ruiz.”

But he encouraged the jury to look past the distractions he said Silverman had created. “Clearly,” Carpenter argued, “your task is to determine how guilty Mr. Penn is.”

As court recessed, Lester said deliberations in the case are likely to begin sometime today, after he reads the jurors an inch-thick packet of legal instructions. Earlier, as they had since final arguments began last week, each lawyer used his time Monday to impress his version of the events and testimony on the jury and to belittle the opposition’s claims.

The bulk of the day belonged to Silverman. Sometimes mockingly, sometimes solemnly, he led the jurors through what he insisted were the lies, deceptions and misleading silences on which the prosecution’s case was based.

Focus on Jacobs

The lies, he said, began with Jacobs. Though medical witnesses testified that Jacobs’ injuries may have left him confused about the details of the confrontation with Penn, Silverman contended that Jacobs deliberately contrived a false account to cover up his knowledge that he had used excessive force on Penn.

Silverman noted that Jacobs has claimed that he stopped Penn’s truck after seeing it make an illegal U-turn, while even the prosecution has conceded there was no U-turn. Jacobs, moreover, testified that it was Riggs who first began tussling with Penn--an assertion universally rejected by eyewitnesses, who testified that the confrontation was initially between Jacobs and Penn.

According to Silverman, Jacobs invented both misstatements to provide legal justification for the encounter.

“Why did he say it?” Silverman asked. “Because he knew he was wrong. He knew he grabbed Penn. He knew he lost his temper. He knew he punched Penn. He knew he pulled his club out and started swinging it at Penn’s head.”

Pina-Ruiz--who watched the confrontation from the passenger seat of Riggs’ cruiser--was enlisted in the campaign of deceit, Silverman argued.

Her initial description of the events was largely in harmony with that of the eyewitnesses who testified for the defense, he said. But after police had taken Jacobs’ contradictory statements, Silverman charged, Pina-Ruiz’s account began to evolve, becoming supportive of Jacobs’ story.

Pina-Ruiz testified that the changes resulted from her reflection on her earlier statements. But Silverman was dubious. “There may be another explanation for why that testimony changed,” he said. “And that explanation may be because it didn’t fit with what Donovan Jacobs said.”

Taped Conversation

Silverman--dissolving at times into laughter at what he considered the absurdity of the prosecution’s evidence--said Pina-Ruiz lied further in an attempt to explain away the testimony of Carolyn Cherry, a Navy housing office employee who secretly recorded a conversation with Pina-Ruiz after the shootings.

Cherry had testified that Pina-Ruiz told her the shootings happened so quickly that she could not see what happened--a statement, if true, that would shake the foundations of the prosecution’s case, which relies on Pina-Ruiz’s eyewitness description of the incident.

Pina-Ruiz, unaware of the recording, denied in Penn’s first trial last year that she had ever talked to Cherry. In the retrial, she said she confused Cherry with another Navy employee, Daisy Fuller. Shari Phillips, a friend of Pina-Ruiz, testified that her diary could validate Pina-Ruiz’s assertions, but later returned to court to say the diary had been stolen.

Silverman, mocking the testimony, made a play on Phillips’ nickname. “She goes by ‘Patsy,’ ” he told the jury, “which she’s taking you all for.”

The defense lawyer--at times pacing, at times aiming a pointer at four-foot-high blow-ups of testimony he counted as crucial--said San Diego police shared in the deception.

Late in the trial, Silverman had spent several days questioning police officials about photographs of the Brooklyn Avenue crime scene, asserting that they were purposely darkened to make it seem that Penn would have been able to see Pina-Ruiz when he shot into Riggs’ patrol car.

On Monday, Silverman argued that police evidence technicians at first had purposely hidden the fact that the photographs were darkened--just, he charged, as officers had been silent until after the first trial about the existence of a videotape of the crime scene.

“The cruelest lies are often told in silence,” Silverman said, quoting Robert Louis Stevenson.

Then he swung around from the jury box to point at Penn, who watched the jury silently during the day of arguments.

“Folks, they want him bad,” Silverman said.

Acted in Self-Defense

As he had at the outset of his argument last week, Silverman on Monday argued that there was no evidence that Penn demonstrated a criminal intent in the shooting--insisting, instead, that he acted solely in self-defense.

“Switch it around,” Silverman said. “Put Jacobs on his back on the ground. Put Penn on top of him . . . . Somebody in the neighborhood, a black person, is standing over Jacobs’ head with a club . . . and Jacobs is on his back saying, ‘Please stop! Please stop!’ ”

Silverman asked the jury to imagine Penn shouting at Jacobs in a paraphrase of the taunt eyewitnesses say Jacobs directed at Penn: “You think you’re bad, cracker? I’m gonna beat your honky ass.”

Under those circumstances, he argued, there would be no question that Jacobs would have been justified in shooting Penn in self-defense. By contrast, Penn is being tried for the shootings, Silverman said, only because he offended official sensibilities by firing at two policemen.

“We are here because the beating being done here was being done by police officers, and the spark plug of that was Donovan Jacobs. And somebody has to pay for this,” Silverman said sarcastically. “It can’t be the policeman’s fault. It can’t be that anything was wrong with Officer Jacobs. It can’t be his fault. It’s got to be somebody’s fault, because someone died. And so it’s Mr. Penn’s fault.”

Scenario Rejected

Carpenter bitterly rejected the scenario painted by Silverman. Making his own reference to the Declaration of Independence, Carpenter argued that society’s rules empower police officers to defend the public’s safety by requiring that high standards be scaled before citizens can start fighting an officer off.

In the confrontation in Encanto, the prosecutor insisted, the officers’ intentions were unassailable, while Penn’s actions were unreasonably violent.

“People who have not sat through this trial,” Carpenter said, “can see this as a battle between police power and individual rights.”

But the jurors, he argued, must understand that Penn lethally overreached his rights. “Who must cooperate, who must give way when you have this clash?” he asked. “The law says Mr. Penn.”

Carpenter reviewed the prosecution’s contention that Penn demonstrated an intent to kill Riggs, Jacobs and Pina-Ruiz.

Even if the first two bullets Penn pumped into Riggs were fired in self-defense, he argued, the third--the shot believed to have killed Riggs--was fired with the intent to kill him, Carpenter said. Jacobs, meantime, was shot at point-blank range in the neck, where a gunshot wound had a high potential for being deadly, Carpenter said. And Pina-Ruiz, he said, was shot because she was in a perfect position to testify against Penn.

“She wasn’t doing anything to him, but she was shot because she could have been a police witness,” Carpenter said. “Certainly that shows a cold, calculated judgment to wipe out a witness to a crime.”

Silverman’s extensive efforts to tar Pina-Ruiz underscored the importance of her testimony, Carpenter said, urging the jury to believe her account of the shootings.

“What is there in her testimony that he’s so worried about?” Carpenter asked. “The answer is, he’s worried about her testimony because it convicts his client.”

The jury--which includes one black, two Latinos and an Asian-American--will consider charges on which the jurors in Penn’s first trial deadlocked, heavily favoring acquittal. The felony counts include voluntary manslaughter in the killing of Riggs, attempted murder and assault with a deadly weapon in the wounding of Pina-Ruiz, and attempted voluntary manslaughter and assault with a deadly weapon in the wounding of Jacobs.