Penn Trial Judge Assails Conduct of Police

Superior Court Judge J. Morgan Lester said Monday the conduct of the San Diego Police Department in the Sagon Penn case was “so flabbergasting to me” that he intends to voice his complaints this week with Police Chief Bill Kolender.

Lester, who presided over Penn’s second trial, said in an interview that it was obvious to him that Police Agents Donovan Jacobs and Thomas Riggs used excessive force on the 26-year-old black man when “nothing is going to happen except caving someone’s head in.”

Lester also expressed outrage Monday at what he sees as attempts by the Police Department to conceal and cover up evidence--including a transcript of a Police Academy counseling session involving Jacobs--to protect their fellow officers.

“In this case, the zeal to get Mr. Penn at all cost caused major problems and they came back and haunted the prosecution and the Police Department repeatedly in the trial,” Lester said. “It is something absolutely new and was flabbergasting to me. I’ve been in the legal business 21 years, and I have never seen a case where this type of thing was going on.”

After two trials over two years, Lester said, he believes that the vast majority of San Diegans have no real awareness of how much damning evidence against the police was introduced in the case.

“I have run into people who want to make the conclusion that there is a dead officer and someone has to pay,” he said. “They are almost happy to be ignorant of the real details and what was going on.”

Lester said the case “troubled me to the point where I’ve already talked to another Superior Court judge about whether I should talk to Chief Kolender. I already decided I would.”

Kolender Disagrees

Reached at his home Monday evening, Kolender said that he and Dist. Atty. Edwin Miller disagree with Lester’s comments that the officers engaged in excessive force or that the Police Department put aside fairness and objectivity in an effort to convict Penn.

“I will talk to him about it,” Kolender said. “There was no intent on the part of the department to in any way color evidence or do any of the things he said.”

Miller could not be reached for comment Monday night.

Last week, a jury acquitted Penn of the most serious charges in the March 31, 1985, killing of Riggs and the wounding of Jacobs and civilian observer Sarah Pina-Ruiz. The defense argued that Penn was the victim of a racist and brutal attack by Jacobs and reacted in self-defense.

Lester, a former prosecutor and defense attorney who was first elected to the Municipal Court in 1978, said he hopes that police officials take his comments seriously and thoroughly review their officers’ actions in the Penn case.

“The concerns I’ve voiced are from one who sat through that trial on a completely impartial basis,” said Lester, whose handling of the second trial was praised by both prosecutors and defense attorneys. “I feel that, if we have a tragedy, the best we can do is take some positive steps to make sure we don’t have another such incident.”

Lester said he cannot agree with Kolender’s statements after last week’s verdicts that “there was no evidence of misconduct” by Jacobs. The judge said he was bothered that Jacobs continued to assault Penn after he had pinned him to the ground.

“There’s too many witnesses, who didn’t even know Mr. Penn, talking about the beating taking place on the ground for the department to ignore the reality of what was going on,” Lester said. “ . . . To get an officer so carried away in beating someone that they don’t even know their gun is being tugged at or taken away proves that the jury believed there is a real beating going on here.

“It’s obvious to me that . . . when Mr. Penn was down on the ground, he had stopped any scuffling or fighting with the officers. I think one lesson to be learned is that this is no time for night stick justice, particularly when (Penn) is on the ground saying, ‘I give up, you’ve got me now.’ ”

The altercation in an Encanto driveway began when Jacobs demanded that Penn take his driver’s license out of his wallet and Penn refused. While it is Police Department policy to take only the license, Lester noted that Penn did not violate any laws by handing over the wallet.

The judge blamed the insistence by Jacobs “that authority win at all cost” for triggering the violent episode. He said that police need “to be highly sensitive to escalating circumstances in the name of authority or power alone when it wouldn’t have mattered whether the license was out of the wallet or not.”

In the future, Lester said, the Police Department must be sensitive to officers such as Jacobs and Riggs who reach “Southeast San Diego burnout” after being assigned to high-risk, high-crime areas.

Higher Sensitivity

“It’s obvious to me, having heard that case, that maybe a couple of the officers involved had topped off the scale as to where their patience was and their ability to have any tact,” the judge said.

He said a higher level of sensitivity on the part of Jacobs and Riggs could have prevented the confrontation with Penn that led to tragedy.

But Lester was most perturbed by the way the Police Department responded when the case went to trial.

While he acknowledged that several police witnesses gave candid testimony, Lester bluntly accused others of lying on the witness stand.

“The code of silence that was brought out by the defense was preeminent in the minds of several officers,” Lester said. “Even after the trial, I picked up comments of jurors joking about how totally unbelievable police officers were who testified because their loyalty to each other was greater than that of telling the truth under oath.”

Lester declined to name specific officers he believed had lied during the trial.

Lester mentioned examples of the Police Department concealing and covering up crucial evidence in the case.

He said he believed that an 8-year-old transcript of a Police Academy counseling session involving Jacobs “was purposely withheld” until late in the first trial. In the transcript, brought forward by Officer Jenny Castro after the jury in the first trial already had begun deliberating, Jacobs’ instructors criticized him for his use of profanity and epithets.

‘Hiding and Stuffing’

Castro testified that she discovered the document while cleaning out a desk at the academy office. Lester said the Police Department should “stop hiding and stuffing exhibits in desk drawers that bear on an important case.”

The judge criticized police detectives for ordering a photo lab to alter a photograph so that the glare on a police car window would be reduced. The defense contended that, in the split second after Penn shot Jacobs and Riggs, he could not tell that Pina-Ruiz was a civilian ride-along because of the sun’s reflection in the driver’s side window. She was sitting in Riggs’ patrol car.

“The fact that a photograph was sent to a lab under police directions to lessen the glare on the window was conduct which should not be condoned,” Lester said.

Lester suggested that, to avoid any future conflicts involving the San Diego Police Department, an outside police agency such as the FBI investigate police shooting incidents such as the Penn case.

“I see too much in-grown loyalty that came forth in this case for an objective presentation, and I think the department looked very embarrassed at times,” Lester said.