Decision on Penn Trial Evidence Expected Today

The mystery of an internal police document that could provide damaging information about Police Agent Donovan Jacobs’ character widened Wednesday as the 4th District Court of Appeal continued to review a defense request to halt jury deliberations and introduce the new evidence in the Sagon Penn murder trial.

The report consists of a transcript of a lengthy discussion between Jacobs and his San Diego Police Academy instructors eight years ago concerning his performance during a training exercise, Assistant Police Chief Bob Burgreen said Wednesday.

The document was discovered last fall by a San Diego police officer, according to a court affidavit released Wednesday by defense attorney Milton J. Silverman.

The officer did not bring the report to the attention of police administrators until May 20--the same day Penn was convicted of assault with a deadly weapon for running over Jacobs with a patrol car. The partial verdict was later overturned when a juror said she had second thoughts.

“I kept this transcript because I wondered whether it was standard operating procedure to record such sessions,” said the police officer in the affidavit distributed to the media. The officer, whose name was not on the affidavit, had also questioned whether Jacobs knew the session was being recorded.

On Tuesday, Superior Court Judge Ben W. Hamrick rejected a defense motion to introduce the document to jurors, who are in their 17th day of deliberations today. Silverman filed a writ with the appellate court, which ordered the San Diego County district attorney’s office to file a response by noon Wednesday.

The Court of Appeal is expected to announce its decision today.

Jacobs’ character and performance during his seven-year police career have developed into a critical issue during the trial.

Penn is charged with murder in the March 31, 1985, shooting death of Police Agent Thomas Riggs and attempted murder in the shootings of Jacobs and Sarah Pina-Ruiz, a civilian ride-along who accompanied Riggs.

The defense maintains that Jacobs repeatedly beat Penn and shouted racial slurs at the 24-year-old black man, who reacted by taking the officer’s weapon and shooting him in the neck. Silverman was forced to rely on witnesses such as a heroin addict and a former police lieutenant who suffered psychological problems to bolster the defense claim that Jacobs was a racist and a “Doberman pinscher.”

Numerous police witnesses testified for the prosecution that Jacobs was a model officer who had received nearly a dozen commendations for outstanding police work. Jacobs denied ever using a racial slur during his police career.

Officials at the academy do not know whether the tape was made with Jacobs’ knowledge, Burgreen said.

“It’s not the kind of thing that is normally done,” Burgreen said. “I don’t know why it was done.”

Jacobs’ instructors at the academy, Capt. Tom Hall and Capt. Dave Hall, testified about the transcript on Monday. Hamrick closed the session to the public and ordered the Halls, who are not related, not to discuss their testimony.

Burgreen said the instructors had noted something of concern about Jacobs’ conduct during the training exercise, in which cadets re-create scenarios and play the roles of police officers, criminals and victims. Jacobs was then called into an office to discuss a critique of his performance.

Police officials familiar with academy exercises said Wednesday that tape recorders typically are not used for any reason at the academy.

“We don’t use tape recorders for anything,” said Lt. Jerry Sanders, head of the academy, which is locate at Miramar College. “I’ve been up here a year and a half and I have never been aware of a time when we did.”

One police source said the circumstances surrounding the critique must have been highly unusual for Jacobs’ instructors to record the session and order a transcript.

According to the affidavit released Wednesday, the officer discovered the transcript eight or nine months ago while cleaning an unused office at the academy.

“The transcript was in an old in-basket with numerous other unrelated papers which I threw out,” the officer said.

“I put it in my desk at that time with intentions of reading it later. About a month ago (May 19) I cleaned out my desk and found the transcript.”

Burgreen said police are investigating why the transcript was not placed in an official academy personnel file and why it took so long for the officer to turn over the report.

Burgreen said he received the document on May 20 and took it to Police Chief Bill Kolender, who gave it to Deputy Dist. Atty. Michael Carpenter the following day.

Hamrick did not receive the information from the district attorney’s office until two weeks later.