In his first interview since the Sagon Penn retrial, San Diego Police Agent Donovan Jacobs suggested that the 25-year-old black man would have been convicted if he had been forced to tell his story to the jury and to face the same scrutiny that Jacobs did.
"All the jury had to weigh were the bad things said about Donovan Jacobs," the officer said. "Nothing about Penn was being said, and he just sat there with that stupefied look on his face."
Jacobs' remarks were published in the current issue of the Informant, the newsletter of the San Diego Police Officers Assn. The officer denied any wrongdoing in the March 31, 1985, incident, which resulted in the shooting death of Police Agent Thomas Riggs and the wounding of Jacobs and civilian passenger Sarah Pina-Ruiz.
The defense claimed that Penn defended himself from a racist attack launched by Jacobs, who allegedly beat him with a night stick and shouted racial epithets.
Jacobs said he wished that "rumors" about Penn could have been aired in court. These included Penn's alleged involvement in an armed robbery and his being fired from a supermarket job because of violent behavior.
"I would have liked to hear what he had to say, plus see how he would have held up if he had been put through what I had to go through," Jacobs told the Informant. "I honestly feel if he had opened his mouth, people would have realized what we had been saying about him was true."
The comments by Jacobs, who currently has a desk assignment in the police narcotics unit, took some police administrators by surprise because the department had organized a concerted effort to mollify the minority community by not reacting angrily to the innocent verdicts. The second jury acquitted Penn on all major charges in the case.
"I certainly have a lot of empathy and sympathy for Donovan Jacobs," Asst. Chief Bob Burgreen said. "But articles like this only serve to reopen wounds that we're closing."
Jacobs criticized Penn's defense attorney, Milton J. Silverman, for playing "word games" with the jury, and Superior Court Judge J. Morgan Lester for accusing police of misconduct during the trial in an interview with The Times.
He accused Silverman of having a photograph enlarged to make Jacobs appear as "a behemoth because I had lifted weights" when he never weighed more than 165 pounds.
"Silverman accomplished a lot with word games," Jacobs said. "He'd describe a baton as a club--or use the word 'beat' in place of 'hit.' So instead of saying, 'You hit him with your baton,' he'd say, 'So you beat him with your club.'
"He did that repeatedly throughout the trial, and when I was testifying I corrected him, but that couldn't really take away the impact those words made on the jury. He methodically built a vivid picture in their minds of an overzealous cop beating a defenseless black man. That just wasn't true."
Silverman was not available for comment.
Jacobs said Lester should never have aired his criticisms of police in the press.
"If he thought we were lying, he should have used some other avenue than the media to ask for an investigation. It was irresponsible for someone in his position to say those things to a reporter."
Lester's comments prompted Dist. Atty. Edwin Miller and Police Chief Bill Kolender to ask Atty. Gen. John Van de Kamp to investigate the accusations. Lester defended his statements Thursday, saying, "This investigation would not be happening if I hadn't said something."
During the second trial, former officers Nate Jordan and Drew MacIntyre testified that they believed Jacobs was a racist who frequently called black suspects "nigger" or "boy." Jacobs denied being a racist, and said he was surprised by the testimony. He said he could not remember an incident described by Jordan who said Jacobs called him "a nigger" during a squad conference.
In response to critical testimony by Jordan and MacIntyre, Jacobs said, "I think a good question to ask is, 'Why aren't either of them on the department anymore? Why did they leave, and could they have taken their bad experiences with the department and transposed those ill feelings onto me?' "
Jacobs said he had a lot of guilt feelings because he allowed Penn to get his gun but does not regret his conduct that evening.
"I know in my heart what Tom and I did that night was what we were supposed to do--trained to do . . . I made a mistake when I let him get my gun. That's what I truly regret, but other than that, what we did was fully correct."