Jury Still Out on ‘Critique’ of Penn Trial : Judge’s Remarks Garner Award, but Kolender Calls It Premature

The response has been bittersweet.

In the four months since Superior Court Judge J. Morgan Lester blasted the San Diego Police Department at the close of the second Sagon Penn trial, he has been heaped with praise. And his life has been threatened.

He has received hundreds of letters from the public, the vast majority of them supporting his views that some police officers lied or covered up evidence in the highly publicized Penn trial.

“You are doing a damn good job,” wrote a San Diego doctor. “Hang in there.”

He has become a popular speaker, addressing schoolteachers and new sheriff’s deputies. On Wednesday he was presented the 1987 Diogenes Award by the San Diego Chapter of the Public Relations Society of America, an honor given annually to a local citizen with the courage to speak out about his convictions “regardless of negative connotations.”

“I’ve received standing ovations,” the 49-year-old Lester said in an interview Tuesday afternoon with The Times in his courtroom chambers in Vista. “I’ve been hugged. Some of my fellow judges have called and offered their support. The other day, a lady in the hallway came up and just wanted to shake my hand for what I did in the Penn case.”

But it has not been all glory.

He said he has received several threats on his life from local white supremacists. He has beefed up security around his home. He has alerted local law enforcement authorities in North County about the potential of someone attempting to harm him. In addition, he worries that six threats on his life from other trials might now be carried out.

And he sometimes wonders “whether I should be careful about coming to San Diego” from Vista, particularly after Officer Nate Jordan, one witness against police in the Penn trial, was arrested in an illegal parking incident and charged with misdemeanor battery and resisting arrest. Jordan later pleaded guilty to parking in a handicapped zone, and the other charges were dropped.

And some of the letters have been caustic.

“You should be removed from your bench,” wrote an Escondido private consultant. “No wonder our justice system is in chaos and disgrace.”

Keeping His Chin Up

Lester has kept his chin up: “I’m a pretty tough person. I haven’t let any of it phase me, then or since. I haven’t backed down and I’m not going to.”

Lester presided over the second Penn trial, which ended in July with an acquittal for the young black man accused of killing a police officer and wounding another officer and a civilian observer during a 1985 confrontation.

In an interview with The Times after the trial, Lester assailed the Police Department for what he claimed were attempts to conceal and cover up evidence to protect fellow officers in the Penn trial. He also suggested that some officers lied on the witness stand and that it was obvious to him that the two officers who were shot used excessive force against Penn, prompting the bloodshed that followed.

His comments brought two swift reactions: An ongoing investigation by the state attorney general’s office into police conduct in the Penn shootings and subsequent trials. And a sharp rebuke from Police Chief Bill Kolender, who later sent a memo to his rank-and-file officers supporting the department.

In an interview Wednesday, Kolender, who received the same Diogenes trophy several years ago, found it ironic that the award for truthfulness and honesty was given to Lester before the attorney general’s office issues its findings on his charges.

Kolender maintains that Lester’s statements were “very inappropriate.”

“I was really disappointed in him,” Kolender said. “He should have gone through channels. He’s a judge. He knows you don’t go running to the press.”

‘Handled It Poorly’

Kolender said he has received a dozen letters himself from judges and attorneys and that those letters sharply criticized the judge’s actions. “They’re all anti-him,” the chief said. “They all thought the judge’s comments were inappropriate and that he handled it poorly.”

Kolender said that, had the judge spoken to him about his concerns after the trial, he would have been glad to ask the police Internal Affairs Unit to probe any allegations of police misconduct. And Kolender said it was he, not Lester, who pushed for the attorney general’s review.

“Throughout this trial, I asked on a couple of occasions whether they (the San Diego County district attorney’s office) were pleased or not with my officers,” he said. “They said no. So what do they want to me to do? It seems to me that if you have a question of perjury, you raise it during the trial, and not by going to the press afterward, like Lester did. But then again, I don’t know what his motive was, nor do I care.”

Kolender and Lester, who knew each other casually before the Penn trial, have not spoken since the judge criticized the Police Department. Lester still believes that Kolender “lashed out with a knee-jerk reaction.”

After the Remarks

The judge said that, after talking to The Times in July, he immediately telephoned the chief. The chief was gone for the day and Lester said he left a message. The judge then went home and, suffering an upset stomach, went to bed. He said his telephone, which has an unlisted number, rang about 7:30 p.m. The chief was calling.

Lester said Kolender, apparently calling from a banquet or party, was extremely upset about the judge’s remarks to the press. But Lester said he took the offensive in the conversation.

“The chief and I had a spirited discussion,” Lester said. “I recited undeniable facts about that trial. After I started throwing fastball after fastball, and then strike after strike, the chief terminated the conversation.”

Kolender admitted that he was upset with Lester during the phone conversation. “He knew I was disappointed,” the chief said. “But I didn’t rant and rave.”

Kolender believes that Lester’s comments were unbecoming of a judge. But Lester said he has received strong support from his colleagues on the bench. He said California law allows a judge to issue an advisory opinion on the testimony of witnesses, even during the trial if he sees fit. But Lester said he waited until after the verdict because he did not want to “intermeddle” with the proceedings.

Instead, he told a fellow judge about two weeks before the trial ended that he was considering voicing his opinion on the case. He said the other judge encouraged him to do so.

Unusual Position

It was an unusual position for Lester to be in. He is a former prosecutor with a strong military background and a conservative Republican, first elected a judge in 1978 on a law-and-order platform.

He said that while he is unsure how rank-and-file San Diego police rate him now, two police sergeants did call him and voiced their support. And he said he continues to share a good relationship with San Diego County Sheriff John Duffy and his deputies.

Lester also does not think his speaking out will hurt his chances for career promotions, such as for gaining a future spot on the Court of Appeal.

“It’s a neutral factor,” he said. “What I had to say had nothing to do with advancement. I felt I had a duty to do.”

Many of the letters he received back him up.

One woman wrote that Lester had debunked “‘the myth of police infallibility or superiority that suggests that any behavior committed by someone in uniform is acceptable and not to be questioned.”

A man hand-scrawled a note: “After 30 years of observing such practices by the San Diego Police Department and personally battling them, it’s heart-warming to know that those whose ideals are most honorable recognize the problem and have the courage to speak up.”

A fellow judge in Vista wrote simply: “Congratulations and hang in there.”

On the Other Hand . . .

Other letters were considerbly less kind.

“We feel your published remarks were, at the least, untimely; at the most, unjustified,” wrote a San Diego doctor. “We suggest that you consider resigning.”

A San Diego woman also suggested Lester step down, finding his comments “indiscreet, intemperate, rash, unethical, inappropriate, irresponsible, unjudicial, injudicious, sly, dishonest . . . “