Criticism by Penn Trial Judge Sparks Call for Probe of Police

The state attorney general’s office was asked Tuesday to investigate claims by a Superior Court judge that San Diego police officers lied on the witness stand and conspired to conceal evidence in the Sagon Penn police murder trials.

The request, made by Dist. Atty. Edwin Miller and Police Chief Bill Kolender, came after remarks by Judge J. Morgan Lester, who presided over Penn’s second trial, were published Tuesday in The Times. Lester criticized police for what he claimed was doctoring of a photograph submitted as evidence and withholding of a transcript of a police academy counseling session involving one of the officers in the case.

Police Chief Bill Kolender reacted angrily to Lester’s comments on Tuesday, saying he was “disappointed that a Superior Court judge would make inflammatory accusations.”

‘Irresponsible’ Comments

In a press release, Kolender said, “The arrest of Sagon Penn for the death of Police Agent Tom Riggs . . . has caused much grief within our Police Department and our community for over two years. In our system of justice, the jurors are given the final word. Judge Lester’s comments, whatever motivations may underlie them, are inappropriate, irresponsible and disregard the best interest of the community.”

Later in the day, Kolender sent a message to each of his 1,650 sworn officers.

“I, like many of you, find these comments to be outrageous and intemperate,” Kolender told his troops. “However, after conferring with Dist. Atty. Miller, we have asked the attorney general to conduct an independent investigation to finally put to rest these allegations.”

Miller called Deputy Atty. Gen. Harley Mayfield in San Diego, who said he passed on the request for an independent investigation to Jerry Clemons, director of the attorney general’s law enforcement division in Sacramento. A spokeswoman said that Clemons will not decide whether to investigate until he receives a written request.

Pleased About Probe Request

Lester declined to be interviewed Tuesday, but issued a statement saying he was pleased that Miller and Kolender had asked for the probe. He said he spoke with Kolender by phone Tuesday morning to express his concerns.

“I am further personally convinced that nothing at all would have been done if some of my comments had not been made public,” Lester said in a written statement. “I spoke the truth. I spoke as a concerned citizen.

“No large public organization should be immune from comment and beyond the need for improvement.”

Penn’s first trial ended in June, 1986, with his acquittal of murder and attempted murder charges in the March 31, 1985, slaying of Riggs and the wounding of Police Agent Donovan Jacobs. That jury was hung on a charge of attempted murder of Sarah Pina-Ruiz, a civilian observer who was riding in Riggs’ car. Last week, a second jury acquitted Penn of the most serious remaining charges. The defense argued that Penn was the victim of a brutal, racist attack by police and reacted in self-defense. The remaining charges were dismissed Friday.

In the interview, Lester said that Jacobs and Riggs used excessive force on Penn “when nothing is going to happen except caving someone’s head in.”

But the judge was most disturbed by police conduct once the case went to trial.

“The code of silence that was brought out by the defense was pre-eminent 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.”

‘Flabbergasting to Me’

The judge added, “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. 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.”

Steve Casey, a spokesman for the district attorney’s office, said, “It is certainly highly unusual in our experience for a judge to engage in this kind of post-mortem in which he gives his evaluation of evidence and witnesses. It was surprising, certainly.”

Penn’s defense attorney, Milton J. Silverman, praised Lester.

“I’m glad that a person of Judge Lester’s prestige . . . has honestly stated his opinions because now the community may sit up and take notice of the things he has said and some good may come out of this in the way of meaningful and honest change in the way that things are done at the San Diego Police Department,” Silverman said.