Superior Court Judge Ben W. Hamrick denied a request by the defense Tuesday to introduce new evidence in the Sagon Penn murder trial as jurors wrapped up their 15th day of deliberations in the controversial case.
Defense attorney Milton J. Silverman wants to present potentially damaging information about San Diego Police Agent Donovan Jacobs' performance eight years ago during a police academy exercise in which cadets re-create scenarios and play the roles of officers, criminals and victims.
A written critique of Jacobs' involvement in the exercise was inadvertently discovered on May 19 by an officer cleaning out a desk at the academy office and turned over to the district attorney two days later, said Assistant Police Chief Bob Burgreen.
In a writ filed Tuesday, Silverman asked the 4th District Court of Appeal to order Hamrick to allow the defense to introduce the document as evidence to the jury. The appellate court, which sealed Silverman's appeal, is expected to issue a ruling within the next couple of days.
The jury, meanwhile, will continue deliberations today by listening to a court reporter read transcripts of testimony from various witnesses it has requested to rehear.
Penn is charged with murder in the March 31, 1985, fatal shooting of Agent Thomas Riggs and attempted murder in the shootings of Jacobs and Sarah Pina-Ruiz, a civilian ride-along who accompanied Riggs.
During several weeks of testimony, numerous witnesses testified that Jacobs provoked Penn by beating him and using racial slurs. Silverman assailed Jacobs' character during final arguments by calling him a "Doberman pinscher."
The prosecution called a dozen witnesses who described Jacobs as a model officer.
Despite a request by Silverman Tuesday to open the hearing on the defense motion regarding the Jacobs' report, Hamrick continued to bar the public from the trial proceedings. The judge refused to even hear a request from an attorney representing the San Diego Union to allow the public inside the courtroom. He also sealed court transcripts of the hearing.
Burgreen said academy instructors had observed something about Jacobs' conduct that they felt should be noted in a written report. He said that the report was not placed in Jacobs' personnel file and was simply left behind at the academy office.
However, a source who worked in a supervisory position at the academy said that if a cadet's conduct is significant enough to be put in writing, the document is routinely placed in an academy personnel file so that police administrators can follow up on the incident.
Burgreen said he also is questioning why the document was not placed in a file.
"I'm a little bit troubled by the whole scenario of how this came up," Burgreen said. "At this time, I'm going to be looking into that. To be frank, I don't have all these answers."
Burgreen said an academy training officer found the document on May 19 and turned it over to him on May 20--the same day the jury had convicted Penn of assault with a deadly weapon for driving a patrol car over Jacobs as he fled the scene of the shootings in Southeast San Diego.
The partial verdict was later overturned when a juror stated she had second thoughts.
On May 21, Police Chief Bill Kolender called Deputy Dist. Atty. Michael Carpenter because he felt the information should be brought to the attention of the court, Burgreen said.
Despite case law that says the prosecution has a duty to quickly disclose information that is potentially favorable to the defense, Hamrick did not learn of the Jacobs' incident until June 2.
Carpenter explained the 12-day gap on Tuesday by saying that the district attorney's office "acted with what we believed to be reasonable diligence and speed. That takes into consideration we had to determine what it was and what we were going to do with it."
Carpenter said that, after receiving the information on May 21, he spoke with superiors in the district attorney's office the following day and decided to turn the document over to Hamrick. The prosecutor said his office could not prepare the necessary paper work in one day and waited until after the Memorial Day weekend.
"I'm not like Milt Silverman," Carpenter said. "I don't work on weekends."
Carpenter said the district attorney's office continued to process paper work on the document for the remainder of the week. On Friday, May 30, Carpenter's assistant attempted to give the paper work to Hamrick, but the judge had left on a vacation earlier in the day. Hamrick had announced his vacation plans in advance.
The document was finally delivered to the court on June 2 and was not seen by Hamrick until he returned on June 4--a full two weeks after police had given the report to Carpenter.