Fate of Sagon Penn in Hands of the Jury : Self-Defense Is Primary Issue for Panel As Deliberations Begin in Second Trial

After nearly three months of testimony and argument, jury deliberations will begin early today in the retrial of the case of the People vs. Sagon Penn.

The jurors--San Diego County Superior Court Judge J. Morgan Lester called them “civic heroes” Tuesday--will try to decide if Penn acted in self-defense when he killed one police officer and wounded another and a civilian, or if the shootings were unjustified.

The first trial in the case ended in deadlock a year ago. That jury found Penn not guilty on charges that he murdered Police Agent Thomas Riggs and attempted to murder Agent Donovan Jacobs. But the jurors hung, heavily favoring acquittal, on the array of lesser charges on which Penn now is being retried.

In final arguments lasting four days, Deputy Dist. Atty. Michael Carpenter and defense attorney Milton J. Silverman agreed that the March 31, 1985, shootings--which have cast a pall over relations between the San Diego Police Department and the city’s black community--were a “tragedy.”

Who Was to Blame?

But the lawyers disagreed passionately over who was to blame for the events.

Carpenter, concluding his final argument Tuesday, insisted that Penn, 25, instigated the confrontation in Encanto by refusing a legitimate police request. Penn, he said, then emptied a revolver, not in self-defense but rather in a “preemptive strike” at the officers and civilian ride-along Sarah Pina-Ruiz.

Silverman’s defense case was built on the contention that Jacobs is a brutal and aggressive racist who created and then escalated the conflict, leaving Penn no choice but to defend himself or be killed.

As they consider the testimony of 100 witnesses and sift through hundreds of pieces of evidence, the jury’s deliberations are likely to focus on a handful of legal concepts--intent, malice, reasonable force, justifiable homicide and self-defense among them--that Lester defined in the dozens of instructions he recited Tuesday afternoon.

Under the instructions, the jury--which includes two Latinos, a black and an Asian-American--can approach their decision by virtually whatever process they choose.

One possibility is that they will start with the question of self-defense. If they determine that Jacobs used excessive force in subduing Penn, and that Penn reasonably and honestly concluded he faced death or serious injury, the jurors can conclude that the shootings were justified and find Penn not guilty on any or all of the counts.

Another possibility is that the jurors will weigh each charge, determining whether each of the necessary elements of the individual offenses has been proven by the prosecution beyond a reasonable doubt.

Questions to Be Asked

Beginning with Count I--voluntary manslaughter in the fatal shooting of Riggs--they would consider: Did Penn intend to kill Riggs? Was his use of force against Riggs unreasonable? And they would proceed through the charges, asking similar questions.

In Riggs’ death, Penn can be convicted of voluntary manslaughter or involuntary manslaughter. In the wounding of Pina-Ruiz, the jury can find him guilty of attempted murder, attempted voluntary manslaughter or assault with a deadly weapon. In the shooting of Jacobs, he can be convicted of attempted voluntary manslaughter or assault.

In cool, deliberate fashion, Carpenter sought Tuesday to eviscerate Silverman’s defense case. He minimized the significance of Silverman’s attacks on Jacobs, outlined inconsistencies in the testimony of defense eyewitnesses, argued that some corroborated the prosecution’s version of the events and insisted one final time that Penn was the aggressor in the deadly confrontation.

A day earlier, Silverman--appealing to the jury not to back-pedal on society’s commitment to racial justice--had quoted the Gettysburg Address. America, Abraham Lincoln had said, was “dedicated to the proposition that all men are created equal.”

Carpenter--appealing to the jurors to punish Riggs’ killer--recited a later line from the Civil War speech. “We here highly resolve,” he quoted, “that these dead shall not have died in vain.”

Riggs, he argued, was a hero. Though Silverman, relying on Penn’s description of the events, contended that Riggs was grabbing for his pistol when Penn shot him, Carpenter said other testimony indicated Riggs was backing away from Penn when he was killed.

‘Giving His Life’

“Riggs was moving away, drawing fire away from Miss Pina-Ruiz,” who watched in horror from the front seat of Riggs’ police cruiser, Carpenter said. “He was doing the ultimate to protect and serve. Based on this evidence, he was giving his life to save Pina-Ruiz.”

Carpenter strongly countered Silverman’s insistence on the importance of a transcript of a Police Academy counseling session with Jacobs in 1978.

Silverman had labeled the document--which mysteriously surfaced after the jury in Penn’s first trial had begun its deliberations--as the “single most important piece of evidence” in the case. In it, training officers castigate Jacobs for his willingness to use profanity, aggressiveness and racial slurs in the course of police work.

Carpenter argued that the transcript “doesn’t point up any character deficiencies at all” in Jacobs and that Silverman had blown its importance out of proportion.

Though he had been a “smart ass” at the academy, Jacobs learned his lesson from the counseling and “went on to become a good officer,” Carpenter said. But in any event, he argued, the conduct for which Jacobs was criticized has a place in police work.

“Police work is not nice work,” Carpenter said. “You come across bad people. In order to deal with them, you have to get on their level.”

Instead, he criticized Police Lt. Richard Bennett, who lectured Jacobs during the training session and later stood by the academy’s standards in his trial testimony. According to Carpenter, Bennett was a “holier-than-thou instructor” who “looked silly” in court.

“I’ve got no gripe with Bennett giving this spiel at the academy,” Carpenter said. “But he doesn’t have to come in here and give us this spiel.”

The prosecutor dismissed the testimony of a series of defense witnesses, including three former police officers, who claimed to have observed racist, aggressive conduct by Jacobs. Despite having served dangerous duty with Jacobs, none of the officers ever complained to superiors about his behavior, Carpenter said. And no citizens testified to being addressed by Jacobs with racial slurs, he noted.

Few Testified to Slurs

“The paucity of citizens that have come in to testify to having been called such is testament to the truth of that allegation,” Carpenter said. “There has been none.”

Jacobs, he insisted, had demonstrated in court he was not the “hothead” that Silverman tried to portray. In a week of cross-examination by Silverman--questioning that Carpenter described as “confusing, baiting, accusatory, deceitful and bluffing”--Jacobs “never once lost his temper, never once got out of hand,” the prosecutor said.

Carpenter picked through the testimony of a dozen eyewitnesses to the shootings, insisting that their claims that Penn was being brutalized by Riggs and Jacobs was a misperception based on their failure to realize that Penn, a martial arts expert, had the upper hand through much of the confrontation.

While Silverman had insisted the academy transcript was a “chilling prophecy” of the deadly evening in Encanto, Carpenter argued that it instead was the creed Penn had learned as a karate and tae kwon do student that was prophetic.

“Be just in killing,” he said, paraphrasing the vows. “Always finish what you start.”

Carpenter expressed “respect” for Silverman, his adversary in two grueling trials, but he urged the jurors to disregard the defense’s presentation.