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Penn Was a Man Without Choices, Defense Tells Jury

June 06, 1987|JIM SCHACHTER | Times Staff Writer

Sagon Penn was a man without choices, his attorney said Friday--a high-minded innocent provoked by the vicious attack of a racist police officer to empty a revolver in self-defense.

Defense attorney Milton J. Silverman, launching his closing argument in Penn's retrial on charges of killing one San Diego police officer and wounding a second and a civilian ride-along, said Penn might have died had he not fought off the attack by Police Agent Donovan Jacobs.

On Thursday, Deputy Dist. Atty. Michael Carpenter had asked the San Diego County Superior Court jurors to put themselves in the shoes of Jacobs and his slain colleague, Police Agent Thomas Riggs, and then to understand the threat posed by Penn, whom he characterized as an "arrogant" and "brazen" martial-arts expert.

But Silverman, in more than five hours of sometimes-rambling remarks, urged the jury to instead consider Penn's position. Pinned and pummeled, the object of Jacobs' racial slurs, told to give himself up but under continuing attack, Penn grabbed Jacobs' gun and started firing out of fear for his life.

Penn "was measuring the amount of time he had in heartbeats," Silverman said. "And maybe he made the right decision and maybe he didn't. But I'd like to know: What other decision was there?"

While Carpenter had focused resolutely on what he described as flaws in Penn's character, Silverman spent hours--as he had spent weeks during each of Penn's lengthy trials--locking the jury's attention on the defects he perceived in Jacobs' nature.

"He wears your emblem of authority on his breast," Silverman said of Jacobs. "And the issue in this case comes down to that. The issue is whether he was fulfilling the laws of the state of California, the power you bestowed upon him by pinning that badge on his breast, or whether Donovan Jacobs is a racist bully, a hothead, who escalates situations and gets his partners into deep trouble."

Silverman emphasized evidence that was unavailable at Penn's first trial a year ago--a transcript of a Police Academy counseling session with Jacobs in 1978 and the testimony of three former police officers--to once again paint a portrait of Jacobs as the ill-willed instigator of the deadly confrontation in Encanto on March 31, 1985.

He noted:

- The testimony of Billy Anderson, who said he watched Jacobs, just weeks before the Encanto shootings, slam a young black man over the roof of a car and was then threatened with similar treatment because he criticized Jacobs' conduct. Prosecutors had challenged Anderson's story with testimony that Jacobs was not working the day of the alleged incident, but Silverman said the former officer was simply confused about the day of the week it occurred.

- The testimony of Nathaniel Jordan, who said Jacobs was overaggressive in the field and regularly used terms like nigger and boy to refer to black suspects--and once to him, provoking a squad-room confrontation.

- The testimony of Drew MacIntyre, now a minister in Alpine, who called Jacobs "one of the most prejudiced white people I've known" and "an ideal candidate for the Ku Klux Klan."

- The language of the academy counseling session, in which Jacobs, then a trainee, was berated for his aggressiveness and his willingness to use profanity, slurs and lies in his police work.

Jacobs, the lead-off prosecution witness in the retrial, denied harboring racist feelings or using racial epithets. But Silverman reminded the jury that some of the inflammatory phrases Jacobs used during the training session nine years earlier--for instance, his statement that he might use racial slurs if they "got the job done"--were echoed almost word for word during the encounter with Penn or in his trial testimony.

Jacobs, Silverman said, was "not fit to be a police officer" and was a danger to his colleagues, because his aggressiveness created situations from which he had to be rescued.

Silverman dwelled on the testimony of Doyle Wheeler, a former police lieutenant who came under heavy attack from the prosecution for purported psychiatric problems and his sharp differences with departmental superiors. Wheeler testified that he had warned other police officials of Jacobs' hotheaded and bigoted tendencies, only to be ignored.

'Code of Silence'

His testimony and that of the other former officers, Silverman said, was an act of courage in defiance of a Police Department "code of silence" that sought to disguise Jacobs' true character.

"I'm outnumbered," Silverman said. "Mr. Penn was beaten on March 31, 1985. He was ganged up on. The power of the state was ganging up on him. But the beating he got on March 31 didn't stop then. It's gone on to this day--most of it by silence."

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