Irked by Change on Guilty Verdict : Prosecutor Launched Probe of Penn Juror

By GLENN F. BUNTING

July 9, 1986 12 AM PT

Times Staff Writer

Incensed that juror Vernell Hardy had overturned a guilty verdict in the Sagon Penn police murder trial, the district attorney’s office launched an investigation during deliberations with the intention of ousting the black juror, according to court documents.

“We were hoping to improve our chances for a guilty verdict,” Deputy Dist. Atty. Robert Phillips said Tuesday. “Everybody yells and screams about the defendant’s right to a fair trial, but the people have a right to see that the guilty are convicted and taken off the streets and punished. . . . All we wanted was a fair shot.”

District attorney investigators interviewed eight of Hardy’s co-workers June 2 at a Pacific Bell office in Kearny Mesa to learn whether she had stated before the trial began that Penn, a 24-year-old black man, was innocent of killing one San Diego police officer and wounding another.

On the same day the interviews took place, Superior Court Judge William L. Todd Jr. ordered the prosecution to halt its probe when Hardy, one of two blacks on the jury, inquired why investigators were asking questions about her at her workplace. (Todd took charge of the case while Judge Ben W. Hamrick was on a one-week vacation.)

“It will stop immediately, and it will not affect in any way your deliberations on this case,” Todd told Hardy in his chambers. “You should go on with your work as a juror and don’t give it another thought. It has ended as of now, I assure you.”

On June 26, the jury found Penn innocent of murder in the March 31, 1985, shooting death of Police Agent Thomas Riggs and attempted murder in the shooting of Police Agent Donovan Jacobs. Jurors were deadlocked, 11-1, to acquit Penn of attempted murder in the shooting of Sarah Pina-Ruiz, a civilian who accompanied Riggs.

Details of the investigation are contained in dozens of transcripts of closed hearings that were unsealed Monday. The records reveal often-bitter confrontations between the prosecution and defense attorneys over the district attorney’s conduct in the case.

The district attorney’s investigation led defense attorney Milton J. Silverman to request a mistrial on the grounds of outrageous governmental misconduct.

“I cannot conceive of somebody doing this,” Silverman told Todd during a closed June 3 hearing. “It is a direct violation of the canons of professional ethics. It is an obstruction of justice. It is jury tampering of the worst kind. It is coercive. It is a mess.

“I believe it would probably be a criminal offense, and I’d be calling somebody from jail if I had done this. And I don’t say that with any jest. It is the most outrageous thing I have ever seen in my life.”

The district attorney’s probe was the first of two defense allegations that prosecutors acted improperly in the Penn case.

Silverman filed a motion June 10 to dismiss the case after learning that the district attorney’s office withheld potentially damaging evidence against Jacobs for 12 days before turning it over to Judge Hamrick. The document, an 11-page transcript of a 1978 counseling session in which Jacobs was criticized for supporting the use of racial epithets, was given to prosecutors May 21.

“What do they do on May 22nd?” Silverman asked during a June 8 hearing. “Do they come down and say, ‘Judge Hamrick, we don’t know if you have this, but here it is. We think you ought to look at it right quick because we are interested in the truth coming out.’ . . . No, sir.

“They wait, and they wait, and they wait. And why do they wait? . . . They were holding onto that thing because they wanted the jury to come back and say ‘Guilty,’ and say, ‘By the way here is the (transcript). And it doesn’t matter, anyway.’ ”

Hamrick denied both of Silverman’s motions to dismiss the case, but suggested that the defense could pursue its motions at a later date.

“I think that it would be appropriate to have an independent evidentiary hearing to determine whether or not there has been any outrageous conduct on the part of either the district attorney’s office or the Police Department or the academy or any of its officers that would warrant the court considering a dismissal of all charges,” Hamrick said on June 10.

The district attorney’s office would welcome such a hearing, Phillips said.

Dist. Atty. Edwin Miller is studying whether his office will re-try Penn on the undecided charges. In addition to being undecided on the count involving the shooting of Pina-Ruiz, the jury was deadlocked 10-2 to acquit Penn on charges of voluntary manslaughter in the shooting of Riggs and attempted voluntary manslaughter in the shooting of Jacobs.

Silverman said on Tuesday that he is waiting for Miller to announce his decision before filing a motion to dismiss the remaining undecided charges against Penn. He said any motions would be based on the prosecution and Police Department denying Penn a fair trial by failing to promptly disclose the transcript.

“If I had had that document, I would have won,” Silverman said. “That is basically the point.”

During the 1978 counseling session, Jacobs said he would resort to using the word “nigger” and other epithets “if all else fails and I thought that would be effective.”

Numerous witnesses in the murder trial testified that Jacobs, after trying to subdue Penn with fists and night sticks, told him: “You think you’re bad, nigger . . . I’m going to beat your black ass.”

Police say the transcript was initially “discovered” last fall in an old in-basket at the Police Academy by Officer Jenny Castro, who put it in her desk and did not come across it again until April 29 or 30. If Castro had turned over the document then, the evidence could have been made available before jury deliberations, which began May 15.

Castro turned the document over to senior officers on May 19.

After receiving the transcript from police on May 21, Carpenter did not inform Hamrick of the new evidence until June 2. Hamrick did not see it until June 5, when he returned from vacation.

“I think the district attorney’s office has a right to review that particular document,” Phillips said during a June 9 hearing before Hamrick. “Even 12 days I don’t think is exorbitant.”

On Tuesday, Phillips said the district attorney’s office did not feel there was a big rush because the jury was already deliberating.

“It’s not that big of an issue until (Penn) is convicted and there’s a motion for new trial,” Phillips said. “Asking for new evidence is an unusual move. We didn’t think that would ever occur. . . . Knowing Milt Silverman, we should have thought otherwise.”

Hamrick, who failed to convince prosecutors that the document should be read to the jury to avoid the likelihood of a mistrial, denied defense requests to reopen the trial and introduce the transcript.

Silverman said at the June 8 hearing: “I don’t believe they have this. It is horrible. I think that what we have here is deliberate suppression of evidence.”

Silverman said the prosecution’s “outrageous misconduct” in trying to oust Hardy shows that the district attorney’s office intended to deprive Penn of a fair trial.

Prosecutors decided to investigate Hardy after she told Hamrick on May 21--the day after she delivered a baby boy and deliberations were recessed for a week--that she had second thoughts about an initial conviction. The jury had decided that Penn was guilty of assault with a deadly weapon for running over Jacobs with a police vehicle. Hardy’s sentiments led Hamrick to set aside the verdict.

“It came as somewhat of a surprise, at least to Mr. Carpenter if not everybody else . . . “ Phillips said June 4 of Hardy’s reservations. “She certainly reneged on a verdict, what we thought was a verdict, or at least what 11 other people thought was her decision on that particular count.”

Hardy told The Times that she did not affirm the guilty verdict because she had understood that the vote was only tentative.

“After we voted, I wasn’t real sound on it,” Hardy said. “I thought it was no big deal because we always had a chance to rehash it.”

With Hardy “flip-flopping,” Phillips said, the prosecution considered ways to have her removed from the jury.

In March, Carpenter had informed Hamrick of an unsubstantiated anonymous complaint that Hardy had told co-workers Penn was “a victim of racial prejudice and should be set free.” At the time, Carpenter said he did not want to offend Hardy by “skulking around” and harassing her co-workers. The judge and both attorneys agreed not to pursue the allegations unless the source identified herself.

But Carpenter changed his thinking after Hardy rejected the guilty verdict.

He and his supervisors in the district attorney’s office directed an investigator to find the co-worker and collect a statement on May 20, nine days after the conviction was set aside.

Hamrick later launched a scathing attack on Carpenter for failing to notify the court of the investigation.

“It just seems to me that rather than running to his supervisors and getting a feel from them, (Carpenter) should have come to the court with his concern and asked for some guidance,” Hamrick said.

Phillips said that Carpenter wrestled with the decision “emotionally and mentally for several days. The prosecution . . . recognizes the danger of going in and talking to people about a juror behind that juror’s back. It was recognized in these discussions by everybody that that could cause some problems for us in general.

“Nobody yells louder than the district attorney’s office when people interfere with a juror’s decision in a particular case . . . We don’t like to do that. We would only do that in an extreme case.”

Indeed, the district attorney’s office lambasted attorneys for former San Diego Mayor Roger Hedgecock last fall for quizzing jurors after they reached their verdict.

“In short, (Hedgecock’s lawyers) have so thoroughly hounded and harassed some members of the jury that the product of their efforts must be viewed with distrust,” prosecutors said. “The courts have always condemned the very tactics utilized by this defendant.”

The district attorney’s investigator located the co-worker, Michelle Ann Bishop, who said that she did not hear Hardy make any statements regarding Penn’s innocence. Instead of dropping its investigation, the district attorney’s office went to Hardy’s workplace and interviewed eight additional co-workers. Half of the co-workers indicated they had overheard Hardy make some comment about the case before the trial, including that Penn “looked innocent.”

On June 2, Hardy learned that investigators were asking questions about her and asked to see Judge Todd. Before she was called in, Phillips informed Todd of the investigation.

“I strongly feel . . . Mrs. Hardy would like to inform the court and protest that she didn’t like people going out and investigating her,” Phillips said to Todd. “We understand that. We tried to keep it low-key. If nothing came out of it, we were hoping she would never find out.”

Hardy said Tuesday that she remains confused about why the district attorney’s office investigated her.

“All I knew was that the district attorney’s office was investigating me,” she said. “I was scared. I thought I did something wrong. . . . I didn’t know why they were doing it.”

Hardy said she did not discuss the case with any of her co-workers or friends. She said reports of the investigation “make me look bad and feel bad.”

Phillips filed a motion on June 3 requesting that Hardy be removed from the case because she “was untruthful during some of her responses” during jury questioning. The motion was denied by Hamrick, who ruled that the allegations were unsubstantiated.

Silverman told Hamrick that the district attorney’s office had no right to attempt to remove Hardy.

“Rather than coming in here and boldly proclaiming that they think you should kick poor Mrs. Hardy off the jury, they ought to be in here asking that you do not find . . . the district attorney’s office and its supervisors in contempt and refer the matter to the attorney general’s office for investigation of violation of criminal law, which is jury tampering.”

Phillips said at the hearing: “All I can say is that we are just attempting to make sure that both sides get a fair trial in this case. And if it looks bad . . . I think it does look bad and I am embarrassed by it, and I have indicated to my superiors I’m embarrassed being here and it’s something we have to try to keep low-key.”

Hardy was instructed not to tell her fellow jurors why she had spoken with the judge, and the court took extra precautions to shield jurors from learning of the investigation. But when an unidentified female co-worker suggested on a radio call-in show that Hardy had discussed the case with co-workers, Hamrick acted swiftly by sequestering the jurors.

Hamrick blamed Carpenter for being forced to sequester the jury.

“The only inference that I could draw from this information, if it is true as reported, is that these people surfaced only because of this belated investigation instigated by Mr. Carpenter,” Hamrick said.

Hamrick lifted the sequestration order after four days when Hardy and juror Kimberly McGee said they could no longer continue.

On June 26, the jury arrived at its verdicts. Jurors reconsidered the guilty verdict and, after receiving clearer instructions from Hamrick, voted, 8-4, to acquit Penn on the assault charge.

Times Staff writer Barry M. Horstman contributed to this report.