San Diego Police Agent Donovan Jacobs told three of his training officers in 1978 that he would resort to using the word nigger and other epithets "if all else fails and I thought that would be effective," according to court documents released Monday.
Numerous witnesses in the Sagon Penn police murder trial testified that Jacobs, after trying to subdue Penn with fists and night sticks, told the 24-year-old black man: "You think you're bad, nigger . . . I'm going to beat your black ass."
Jacobs testified during the trial that he had never said nigger and the word was not in his vocabulary.
Penn was found innocent last month of murder in the March 31, 1985, shooting death of Police Agent Thomas Riggs and attempted murder in the shooting of Jacobs. The jury was deadlocked, 11-1, in favor of acquittal in the shooting of Sarah Pina-Ruiz, a civilian ride-along.
During the trial, defense attorney Milton J. Silverman portrayed Jacobs as a "Doberman pinscher" who provoked Penn with a racist attack.
The 1978 counseling session was triggered by instructors' concerns about remarks Jacobs had made during his training. During the counseling session Jacobs asked his academy instructors, "You two feel that I'm a bigot?"
Jacobs continued: "I really do believe I got a good attitude. It's just that I come across poor because I'm termed a smart-ass."
Prosecutors said they learned of the document after the case went to the jury. Silverman had attempted to introduce the 11-page transcript of the conversation between Jacobs and his academy instructors as new evidence in the trial. But Superior Court Judge Ben W. Hamrick ruled against the defense motion because he did not want to interrupt jury deliberations.
Dist. Atty. Edwin Miller is expected to announce this week whether his office will retry Penn on the undecided charges, including voluntary manslaughter of Riggs and attempted voluntary manslaughter of Jacobs. On both charges, the jurors were divided, 10-2, in favor of acquittal.
On Monday, Hamrick unsealed all confidential documents and transcripts of closed hearings in the case. They included defense charges that the district attorney's office had engaged in "outrageous governmental misconduct" by withholding the Jacobs transcript for 12 days before turning it over to Hamrick.
In court papers unsealed Monday, Silverman argued that the transcript of the Jacobs interview is "the single most important piece of evidence" in the Penn case.
"It cuts to the very heart of the central issue in the case: the character traits of Donovan Jacobs for racial bias, hostile and aggressive conduct, and disregard for and insensitivity to the rights to others," Silverman wrote.
Steve Casey, a spokesman for the district attorney's office, said Silverman is again making unsubstantiated charges against Jacobs in interpreting the significance of the document.
"The way I read it is that Jacobs is saying in a role-playing situation that he would not rule out the use of . . . 'professional profanity' (a term used by Jacobs in the transcript) under all circumstances," Casey said. "But he himself would never use trigger words."
Casey said he felt Jacobs was just trying to be funny in his remarks regarding the treatment of homosexuals.
"One gets the impression he was trying to be flippant in class rather than going on a racial tear," Casey said.
Jacobs was unavailable for comment Monday. In an interview last week, he said the transcript would have a "relatively harmless" effect on a jury. The officer said the fact that he graduated from the academy and was later promoted to agent indicates that he became an outstanding officer.
Silverman said the serious concerns expressed by academy instructors in the 1978 transcript regarding Jacobs' attitude are "sadly and eerily prophetic" in light of the tragedy involving Penn seven years later.
The training officers--Tom Hall, Dave Hall and Richard Bennett--are not identified individually in the transcript. One of them told Jacobs:
"My feelings right now are that with your present value system, and I think there is an immaturity factor involved here also . . . you're not going to fit well into the San Diego Police Department's philosophy of how to treat the general public. Unless you show some considerable changes . . . we don't want you because you are going to do nothing but create problems for yourself, for the public and for the department."
At another point, an instructor admonished Jacobs: "And there's something about this job, Don, that catches up with you. It's the frustration. If you can't deal with it, you're only going to cause yourself some harm as well as other people. . . . It's still going to manifest itself somewhere, in stress, in a fight, or in a situation that really ticks you off and . . . you're going to have the community coming all over you as well as the department."