Penn Jurors Back Judge’s Attack on Officers’ Conduct

Jurors in the Sagon Penn retrial said Wednesday that they strongly support Superior Court Judge J. Morgan Lester’s comments that San Diego Police Agent Donovan Jacobs launched a brutal attack against the 26-year-old black man and that police officers lied on the witness stand to cover up the beating.

“I think his observations are absolutely accurate,” said Debbie Trujillo. “I really admire him. He wants to improve conditions so that things like this don’t happen again. I think he only has the citizens’ best interests at heart.”

Trujillo was one of several jurors who said they declined to state their true feelings after last week’s not guilty verdicts because they feared police retaliation.

Lester’s remarks, published Tuesday in The Times, prompted San Diego County Dist. Atty. Edwin L. Miller to ask state Atty. Gen. John Van De Kamp to investigate the judge’s allegations of police misconduct. On Wednesday, Van De Kamp said his office would launch an investigation.

“The attorney general read the letter, was sympathetic to the conflict cited by Mr. Miller and agreed to investigate,” said Duane Peterson, assistant to the attorney general.

‘Raised Spectre of Perjury’

Miller wrote in his letter, “Judge Lester . . . has at least raised the spectre of perjury by law enforcement officers, an allegation I believe he made in a personal telephone conversation (Monday) night with San Diego Police Chief Bill Kolender. Judge Lester additionally accused slain peace Officer Thomas Riggs and wounded Officer Donovan Jacobs of engaging in the grossest form of police brutality.”

Lester said Wednesday he was pleased with Van De Kamp’s decision.

“That is the reason I made the statement I did,” Lester said in a telephone interview. “I had hoped something like that would be done. . . . If they do a thorough investigation, they should get to the truth.”

Lester may be the target of another investigation, according to a police spokesman. Cmdr. Keith Enerson said Wednesday that Kolender will ask the state Commission on Judicial Performance to investigate the judge’s remarks.

Kolender said in a press release Tuesday that Lester’s comments were “inappropriate, irresponsible and disregard the best interests of the community.”

Lester, who said he welcomes the investigation, said he has been “attacked unjustifiably” by Kolender.

Penn’s defense attorney, Milton Silverman, reacted angrily when he learned of Kolender’s plans to file a formal complaint against Lester.

“This is the Police Department’s response to someone who will not join their conspiracy of silence,” Silverman said.

The nine-member judicial performance commission investigates allegations of judicial misconduct, and can issue private censures of judges or recommend that the state Supreme Court publicly censure or remove a judge. A commission attorney said Wednesday that the state Code of Judicial Conduct only prohibits judges from making public comments on pending cases--not those, such as the Penn case, that have drawn to an end.

In an interview with The Times on Monday, Lester assailed the Police Department for he claimed were attempts to conceal and cover up evidence in the Penn retrial. 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 remaining undecided charges were dismissed on Friday.

“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 in his initial interview on Monday. “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.”

Plans for Story Changed

Lester requested on Wednesday that the Times clarify the conditions under which he granted the initial interview. A Times reporter asked Lester for his views of the case in connection with a story that would include responses from jurors, defense attorneys, prosecutors and police officials. Because of the newsworthiness of Lester’s stinging remarks, The Times decided to print his comments the next day.

“I said what I said in an unbiased nature,” Lester said. “That is the truth. I gave my views as a concerned citizen of what could be improved upon. I did it in the context of a composite article in which mine would be one of many views. When I was isolated, it caused me to take a personal attack from (Kolender), which he launched out at without having the benefit of the investigation he called for. I feel I have been attacked unjustifiably.”

Lester said that he has received a “tremendous groundswell of community support” in the past several days. He also said that many jurors have called to congratulate him for voicing his concerns in public.

“I appreciate those views,” said juror John Vickery. “I think if he had gone to the police chief just in private . . . it would have been brushed under the carpet like so many other things that we heard about in the trial.”

Several jurors said in interviews Wednesday that they disagreed with Kolender’s statements after the trial that “there was no evidence of misconduct” by Jacobs. They also said the police chief was mistaken when he said at a press conference, “The fact that Sagon Penn was found not guilty on those counts does not make Donovan Jacobs guilty.”

Said Trujillo, “There was definitely some excessive force used that night.”

Vernell Hardy, one of the jurors in the first Penn trial who acquitted him of murder and attempted murder charges, said, “Jacobs was physically pumped up and mentally pumped up. He was arrogant. He wielded that stick whenever he could, and nothing ever happened to him. I personally would like to see Jacobs removed from the force. I really would think that would help in healing the wounds.”

The jurors said they were afraid to criticize Jacobs or the Police Department after hearing six months of testimony from witnesses, including former police officers, who said they had been threatened and harassed by police. Examples included testimony from former police officers, including Lt. Doyle Wheeler and Officer Nate Jordan, that their tires had been slashed and they found dead rats on their cars.

“These were ex-officers, and they were afraid to say anything about the Police Department,” said one juror who asked not to be identified. “Who knows what would be done to us. I think it would be easy for them to find me.”

Said Trujillo: “I think fear is embedded in every one of us. That is the reason why there was a lot of no comment after the verdict was given.”

Inspired by Judge

Trujillo said that after she heard about Lester’s comments, she decided that if the judge had the “strength and integrity to go out and do what he thinks is right, maybe I shouldn’t keep my mouth shut either.”

In his remarks, Lester accused police officers 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,” the judge 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.”

During the interview, Lester suggested that a reporter contact the jurors to learn the names of police witnesses they believed were lying. On Wednesday, five jurors--who asked to remain anonymous--agreed to provide the names of officers they believed were untruthful during the trial.

The jurors said they believed that Sgt. James Duncan lied on the witness stand when he denied being present at a squad conference when Jacobs called Officer Nate Jordan “a nigger” and the two began fighting. Both Jordan and Officer William Green testified that Duncan was at the meeting and scolded the officers for their conduct.

“To me, that was blatant,” said one juror. “That was just an out-and-out lie.”

In another instance, Jordan and Wheeler testified that they complained to Duncan about Jacobs being a racist. Duncan denied ever receiving such a report and described Jacobs as a model officer.

Said another juror: “I think James Duncan was probably the least credible for me and probably the most frightening. He worked in internal affairs and he is a SWAT officer. He was absolute in his remarks. When he was asked if Jacobs ever used excessive force, he said, ‘Nowhere, never, absolutely not.’ It was just too good to be true.”

Duncan said Wednesday he was disappointed to hear that the jurors did not believe his testimony.

“I’m sorry to hear that they feel that was a big contrast,” he said of the squad room incident. “I can only say what I said in court. I don’t recall any incident like that. That is such a blatant racist type of situation that anyone who was there would recall it. But I don’t, which makes me think that it did not happen.”

The jurors said they believed Jacobs lied about his actions on the night of the shootings. Jacobs’ version of the events conflicted with accounts provided by numerous eyewitnesses.

“I don’t think we ever got the truth out of Jacobs,” one juror said.

Transcript Incident Cited

Officer Jenny Castro also was named by five jurors as being untruthful about her role in discovering an 8-year-old transcript of a counseling session between academy instructors and Jacobs. Castro held the document for nearly nine months before bringing it to the attention of police officials last year during jury deliberations in the first Penn trial.

The jurors noted that Castro testified that she looked at only the first two pages of the transcript. But when defense attorney Silverman noted that he had run a fingerprint check on the document, she quickly stated that she thumbed through the entire transcript.

“The first time she said she forgot about the document,” said one juror. “Then she said she found the document while cleaning out the office for someone new who was coming in. Then they brought that person in, and it turns out he started working after the document was produced. She said she was confused about the time span. She could never pinpoint anything. When the (first) jury went into deliberations when she found the document, she said that wasn’t on her mind at all. That was absolutely unbelievable. We didn’t place any value on her at all.”

Jacobs and Castro could not be reached for comment.

The jurors also said they did not believe the testimony of Officer Matt Weathersby, who said he worked with Jacobs for six months on beach patrol and never observed any signs of racial prejudice or violence in him.