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Call for Better Conduct During Penn's 2nd Trial

July 13, 1986

The American system of jurisprudence, as good as it is, has its limitations, and the Sagon Penn case sorely tests them. Only Penn and Police Agent Donovan Jacobs know what was in their hearts and on their minds on the spring afternoon when Penn, having been stopped by Jacobs, killed Police Agent Thomas Riggs. But the tragic affair has been so divisive that no verdict reached by a jury can possibly earn a community consensus that justice was done.

That's why two actions by the district attorney's office during the course of Penn's trial are particularly upsetting. In one instance, the prosecutor waited 12 days before giving the judge information that appears to be highly relevant to the case. And last week it was learned that, while jury deliberations were under way, the district attorney's office secretly began an investigation of a juror in hopes of having her removed from the jury--"to improve our chances for a guilty verdict."

The case of Penn, a black man accused of murdering a policeman and trying to kill another officer and a civilian, has unusual community ramifications and has been the subject of intense media scrutiny. All involved in his first trial knew that it was important not only that both sides receive a fair hearing, but that there also be a public perception of fairness.

Despite that, when information came to the attention of the prosecutor that spoke directly to the character of Jacobs, who with Penn was the pivotal player in the events of March 31, 1985, it was not shared with the court for nearly two weeks. That information was in the form of transcripts found by the Police Department of a 1978 counseling session in which concerned Police Academy instructors spoke with Jacobs about comments he made concerning the use of racial epithets and about his attitude in general.

Even more troubling was the investigation of juror Vernell Hardy launched by Deputy Dist. Atty. Michael Carpenter after Hardy was responsible for having what appeared to be a conviction on a charge of assault with a deadly weapon overturned. The justification for the investigation was an anonymous tip the district attorney's office had received in March that Hardy had expressed pro-Penn sentiments before being selected to the jury--an indication she may not have been completely truthful when interviewed during jury selection. In a meeting with Carpenter, defense attorney Milton J. Silverman and Judge Ben W. Hamrick, it was agreed that there would be no investigation of the matter unless the tipster came forward and identified herself.

So Hamrick was not pleased to later learn of Carpenter's unilateral decision to have several of Hardy's co-workers interviewed while the jury was deliberating. As one measure of the inappropriateness of the district attorney's action, Deputy Dist. Atty. Robert Phillips, who was sent to inform the court of the investigation and then to argue for Hardy's dismissal from the jury, told the judge he acknowledged that the incident "does look bad, and I am embarrassed by it, and I have indicated to my superiors I'm embarrassed being here."

In fact, embarrassing doesn't begin to describe what the district attorney did. Unconscionable would seem a good deal closer to the mark. To place added strain on a juror already under extreme pressure from such an intense trial is shocking. To argue that the investigation--in which nine of Hardy's acquaintances were interviewed--might have been kept secret from her is ludicrous.

Dist. Atty. Edwin Miller has decided to retry Penn on the four charges on which the jury failed to reach a verdict--the verdicts that were reached all being acquittals. Before a new trial begins, Miller undoubtedly will have an opportunity to defend his department against allegations of prosecutorial misconduct that Silverman surely will raise.

These unwise actions--which raise questions about the prosecution's sensitivity to the broader importance of this case and its commitment to a just outcome--are out of character with the reputation Miller has built for conducting his job with fairness and reserve. At best, they were serious mistakes in judgment that should not be repeated in this or any other case.

There is no possible outcome to the Penn case that will not leave some segment of the community angered and believing that justice was denied. That's all the more reason that his second trial must be handled by the book, with more emphasis paid to determining the truth than to winning.

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