State to Launch Inquiry of S.D. Police in Penn Case

The state attorney general plans to begin an investigation of alleged police misconduct in the Sagon Penn case within a week by interviewing Superior Court Judge J. Morgan Lester about his comments that San Diego police officers lied on the witness stand and altered evidence.

Jerry Clemons, director of the attorney general’s law enforcement division, said Thursday that Lester’s criticism of police conduct was so extraordinary that his office considers the charges “very serious” and is prepared to assign numerous agents to work on the case full time.

Federal Probe Possible

Lester’s remarks, which The Times published Tuesday, could also prompt a U.S. Justice Department probe to determine whether Penn’s civil rights were violated in the March 31, 1985, incident or during the subsequent trials.

James Bolenbach, a spokesman for the FBI’s office in San Diego, said Thursday that Lester’s criticisms “will be thoroughly analyzed” by the department’s civil rights division. A decision on whether to conduct a formal investigation will rest with the head of the division, Assistant Atty. Gen. William Bradford Reynolds, a Justice Department spokesman said.

Lester, whose remarks led San Diego County Dist. Atty. Edwin Miller and Police Chief Bill Kolender to request the state investigation, confirmed Thursday that he will meet with investigators from the attorney general’s office. The judge also said he welcomed a probe by the Justice Department.

“I will cooperate with anyone who is conducting an independent investigation,” Lester said.

The attorney general’s investigation will consist of interviews with police officers, witnesses and others connected with the case, and some review of documents, Clemons said.

“We consider this very serious, and we will explore each of the issues adequately to determine what the truth is or that we cannot determine what the truth is,” Clemons said. “It may take some time.”

Clemons said he will not arrange for a grand jury to hear testimony until after California Atty. Gen. John Van de Kamp reviews the evidence and decides whether investigators have a case.

“It will be our responsibility to investigate it and for the attorney general to make a determination of what we do after that,” Clemons said. “There are a number of avenues ranging from ‘We found nothing’ to taking it to the grand jury.”

One former prosecutor said the state’s investigation would be crippled if the attorney general’s office failed to invoke the full scope of powers available to the prosecution or a grand jury in its investigation.

“They’ve got to be able to compel testimony, compel (the production of) documents, and they’ve got to be able to immunize people,” said Raymond J. Coughlan, a former assistant U.S. attorney who now practices criminal law and heads a trial lawyer training program in San Diego.

“If they can’t do those three things--if they’re just sending an investigator out--people are not going to talk to them,” Coughlan said. “Police officers are wise enough in the ways of the law that they’re not going to talk to people when they don’t have to.”

Grand Jury, Subpoena Powers Urged

Penn’s defense attorney, Milton J. Silverman, said he doubted that any investigation could be effective without using a grand jury and subpoena powers.

Silverman said there were so many examples of police officers lying under oath that investigators should start by obtaining “all of (Police Agent Donovan) Jacobs’ performance evaluations and training records to illustrate the difference between what police supervisors testified to and what actually happened.”

“I don’t know where to start with lying,” Silverman said. “It’s all over the place.”

In his interview with The Times on Monday, Lester accused Jacobs of “using night-stick justice” to launch a brutal attack on Penn and fellow officers of commiting perjury during their testimony to cover up the beating. Lester also criticized the Police Department for attempting to conceal critical evidence in Penn’s retrial.

Last week, a jury acquitted Penn during a retrial of the most serious charges in the March 31, 1985, killing of Police Agent Thomas Riggs and the wounding of Jacobs and civilian observer Sarah Pina-Ruiz. The remaining charges were then dismissed. The jury in the first trial acquitted Penn of murder and attempted murder charges and leaned heavily toward acquittal on the counts it could not resolve.

“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.”

Though Lester’s views received strong backing this week from jurors who decided the case, Kolender said the judge’s remarks were “inappropriate, irresponsible and disregard the best interests of the community.” On Wednesday, a police spokesman said Kolender was so angry the police chief intends to file a complaint against Lester with the state Commission on Judicial Performance.

City Manager Backs Irate Kolender

City Manager John Lockwood said Thursday he supports Kolender’s criticism of Lester.

“I think (Lester’s remarks) are very damaging to the local criminal justice system, and I think the chief’s response was expected and appropriate,” said Lockwood, who returned from vacation this week. “A judge has made a decision that city employees perjured themselves in their testimony. If you have proof that that happened, then you prosecute them for perjury.

“For a judge to say they perjured themselves, it’s damaging. You ought to be able to prove and substantiate those statements or you shouldn’t make them, in my view.”

Lockwood further criticized the Superior Court judge for suggesting that there would have been no investigation of police conduct if he had not spoken out in public.

“If any judge observes any city operation and they feel that they have to go public in order to get city people to react, that is really very, very unfortunate,” Lockwood said. “If he had sat down and talked with us and checked back later and found absolutely nothing had been done . . . maybe then you go public.”

Kolender has repeatedly said there is “no evidence” of any police wrongdoing in connection with the Penn case.

Dist. Atty. Miller will not join Kolender in complaining about Lester’s public comments, according to his spokesman, Steve Casey.

“I’ve said on our collective behalf that it’s certainly an unusual forum, but that’s not a value judgment,” Casey said of the judge’s interview with The Times. “That’s not saying it’s proper or improper.”

Lester said he called the district attorney’s office Thursday to reassure Miller that he had not intended to include the prosecutor or his staff in his criticisms.

“I thought that possibly they were being drawn in as an unwitting party when they were not a party to this issue at all,” Lester said. “And I wanted to make sure they stayed separate and apart from anything that has been said. They were no part of it.”

Lester’s criticism represents the first time since Van de Kamp became attorney general in 1983 that a California judge has prompted an investigation of police conduct, Clemons said. Similarly, Clemons could not recall conducting a probe into allegations that police officers committed perjury.

Investigation of This Type Is First in Years

“We have not investigated this type of thing in the last four years,” Clemons said. “We have to clarify from the judge what he is requesting being investigated. That is the first step.”

Clemons discounted any criticism that the attorney general’s office would not aggressively pursue charges of misconduct against another California law enforcement agency.

“There are no whitewashes,” Clemons said. “That’s not the way it works. (Van de Kamp) calls them the way he sees them, and he calls them very objectively.”

However, the attorney general’s track record over the past four years reveals that the agency has not been successful in uncovering any criminal wrongdoing by law enforcement agencies. Of the 50 investigations of police misconduct in the Van de Kamp administration, Clemons could not recall a single case that led to a conviction of a law enforcement officer.

Clemons said the attorney general’s office has one case pending in which it has suggested that a district attorney file criminal charges against a police officer. He would not elaborate on the case.

Clemons noted that the attorney general’s office criticized the Kern County Sheriff’s Department and district attorney’s office for its “overzealous” investigation of unsubstantiated reports of satanic baby killings.

In the Kern County case, 10 agents spent 9 months working on the case full-time. Clemons said “we had no great pleasure” in calling a press conference in Bakersfield to criticize the handling of the case by the local law enforcement authorities.

State Office Here Assailed as Non-Independent

In San Diego, Van de Kamp’s staff has been criticized for not demonstrating independence when investigating cases referred by the district attorney’s office.

- Backers of Humberto Carrillo Estrada, a Mexican youth shot and seriously wounded by a Border Patrol officer in April, 1985, complained that the attorney general’s office failed to adequately investigate Miller’s refusal to prosecute the agent.

“For the attorney general to come and do an independent investigation and . . . support the district attorney’s findings left us with a lot of doubt as to the kind of investigation that was conducted here--how thorough it was and if they had really looked at all the evidence and all the factors involved,” said Roberto Martinez, chairman of the Coalition for Law and Justice, a group that monitors alleged rights abuses.

“If he’s going to support the district attorney in all his findings, how can you call it an independent investigation?” Martinez asked Thursday. “Hopefully, in the case of the police and this Penn trial thing, he will conduct a more thorough investigation.”

- Defense lawyers for former San Diego Mayor Roger Hedgecock say they were unable to determine whether the attorney general’s office conducted a thorough investigation of allegations of jury tampering by the bailiffs in Hedgecock’s 1985 retrial on charges of campaign finance law violations.

Two jurors in the retrial said the bailiffs had talked with jurors about the case during their deliberations, going so far as to advise them on questions of law. But the state, after interviewing the jury, decided not to prosecute the bailiffs, citing contradictions in the evidence and the lack of criminal intent in any misconduct.

At the time, Hedgecock’s lead defense lawyer, Oscar Goodman, said the state’s independent probe was “a half-hearted effort” and charged that the attorney general’s office was “a party to the whitewash.”

Now, however, Goodman says it is impossible to tell how throughly the charges were investigated because the judge in the retrial barred the defense from reviewing the interviews and reports generated by the state probe.

“It very well may have been a whitewash,” Goodman said Thursday. “But without having seen the reports, I can’t say that.”

- Though Van de Kamp condemned San Diego Police Department ticket-fixing practices that came to light last year, he declined to involve his office in a criminal investigation of Kolender and some of his top aides. Miller, meanwhile, concluded there was no criminal conduct in the dismissal of tickets by high-ranking police officials for friends, relatives, reporters and others.

“The way the state is set up, we give strong powers to the local D.A.,” Van de Kamp, a former Los Angeles County district attorney, said in an interview early this year. “I respect those powers, having been one myself. The only time when we take a look at these things is when there is an allegation of abuse of discretion.”

Times staff writer Ralph Frammolino contributed to this report.