Police Won’t Be Charged With Assault, Perjury in Penn Case

No assault or perjury charges will be filed against San Diego police officers in the Sagon Penn shooting and trials because Penn would make a weak and incoherent witness who would not be believed by a jury, the state attorney general announced Monday.

John K. Van de Kamp said his office’s eight-month investigation did find evidence that Police Agent Donovan Jacobs used excessive force against Penn during the March 31, 1985, confrontation that led to the slaying of Police Agent Thomas Riggs and the wounding of Jacobs and a civilian observer.

“The investigation did find that there was legitimate cause to question the conduct and the testimony of some officers,” the attorney general said.

‘Insufficient Evidence’

However, Van de Kamp’s 19-page report into the racially charged Penn case also stated that “there was either no evidence or insufficient evidence to justify criminal proceedings” against Jacobs and other officers who testified during the second trial.

The attorney general’s investigation began last year at the request of San Diego County Dist. Atty. Edwin Miller and Police Chief Bill Kolender, who were upset after the Superior Court judge in the second Penn trial publicly raised allegations that certain police officers, including Jacobs, lied on the stand.

Judge J. Morgan Lester said Monday that he stands by his allegations of perjury. But he also agreed that the case is unprosecutable because Penn would not make a credible witness.

“I acted in good faith,” Lester said. “Now I’ll let the chips fall where they may.”

The attorney general broadened his investigation to include not only Lester’s allegations of perjury, but also to determine whether battery charges should be filed against Jacobs. He based his decision not to prosecute largely on a five-hour interview conducted by his investigators with Penn, a young black man.

He said Penn, who was granted full immunity from prosecution, was adamant in his wish that Jacobs not be ordered to stand trial for assault or perjury.

Van de Kamp said “the bottom line” is that a conviction against Jacobs would rest primarily on Penn’s testimony.

Van de Kamp said Penn rambled throughout the interview with investigators from the attorney general’s office, that he was unresponsive to their questions, incoherent and often difficult to understand, that he brought up irrelevant topics and sometimes interrupted the discussion to pray.

“After this interview,” Van de Kamp said, “it was the unanimous view of the investigating team that Penn would not be a credible witness.”

Van de Kamp further stated that, although inconsistencies were found in the testimony of Jacobs and other police officers, they were too inconsequential to warrant prosecution for perjury.

He said that to prove perjury it must be shown that “the testimony was knowingly false and directly material to the central issues of the case.”

“Our lawyers concluded that there was either no evidence or insufficient evidence to meet that standard,” Van de Kamp said.

Kolender said it was “gratifying but not surprising” the attorney general determined that an assault or perjury charge was unprosecutable.

“There will be those that criticize the report,” he said. “They will continue to criticize any investigation that does not reach the same conclusions that they have. For them, no information will alter their beliefs, and that is unfortunate.”

Kolender once again denied that any of his officers used excessive force against Penn. And he said he has no plans to discipline any officers, including Jacobs, who the chief said will retire by July 1.

“Jacobs is wounded forever,” the chief said. “He is not physically able to continue to be a police officer.”

Jacobs, who now works a desk assignment in the narcotics unit, was on vacation and could not be reached for comment.

Miller said that, even if excessive force was used against Penn, it did not justify what ultimately happened during the fight that night in an Encanto driveway.

“What I’m saying is that, whatever occurred out there, it did not justify that the officers and another person be shot,” Miller said.

Emotional Case

Like no other police incident in recent history, the Penn case has fired powerful emotions in San Diego.

Penn was acquitted of the major charges against him during two long trials in which his attorney, Milton J. Silverman, argued that Penn had been the victim of a brutal, racist attack by Jacobs. Silverman argued that Penn shot Jacobs and Riggs in self-defense.

The shooting led to the Police Department’s issuing new guidelines for officer safety. And it drove a wedge between the police and the minority community.

“Now Mr. Penn would like to be left alone,” Van de Kamp said, hoping his report would finally end the 3-year-old case. “It is time for the community to move on.”

Judge Lester, who was interviewed twice by Van de Kamp’s office, said he told them that Jacobs should not be prosecuted.

“I told the AG (attorney general) that the man’s been paralyzed,” Lester said. “I told them they shouldn’t file assault charges on a wounded and maimed man. But that doesn’t mean what was done was right.”

Lester said he hoped the attorney general’s investigation would prompt Kolender to take some positive action, either disciplinary measures or new training procedures for his officers.

The judge also agreed with Van de Kamp’s characterization of Penn.

“He is hard to pin down on one subject, and he rambles on one topic to the next,” Lester said. “And he is highly indulgent in religion theory.”

Silverman Disagrees

But Silverman, Penn’s attorney, sharply objected to the description of Penn by Van de Kamp’s investigators.

“Penn talked a lot about his religion, about God, about not judging his fellow man and the role of God,” Silverman said. “But the fact is that he also gave a clear, straightforward, unadorned and highly credible account of what happened at the scene.

“It is clear it is very painful for him, and he is reluctant to talk about the incident. But, when they get into it, he answers every question clearly and concisely.

“I totally disagree with the assertion that he would not be a credible witness.”

But Silverman agreed that Jacobs should not be prosecuted, primarily because he does not want Penn, who spent more than a year in jail while awaiting trial, to have to bear the ordeal of a third trial.

“I am pleased that they found excessive force against Officer Jacobs because that is true,” Silverman said. “But, from a personal standpoint, I have grown very close to Sagon. I want him to be able to get on with his life.”

In his report, the attorney general said several witnesses either recanted parts of their earlier statements to police or told conflicting versions of how the shootings occurred. He said those inconsistences would make it more difficult to prosecute.

But he indicated that the turning point in his decision not to file a charge of assault against Jacobs was how Penn acted during a March 12 interview with investigators from the attorney general’s office.

Van de Kamp gave a long description of Penn in that interview:

“Right out of the box, the first question posed to Penn asked him to tell what occurred on the day of the incident. Penn responded by saying a lengthy prayer aloud . . . .

“A break was taken while Penn went into a side office and prayed. After this the interview proceeded, but very slowly. Penn’s answers often veered into lengthy discussions of religion or other non-relevant issues . . .

“At one point, Penn took one of the agent’s hands as if to pray with him. A couple of times Penn became quite agitated and breaks were taken. His counsel was able to calm Penn by reading the Bible with him during the breaks . . .

“Throughout the interview Penn gave non-responsive answers to questions. He often gave long answers that drifted off into philosophical or religious matters.

“During the course of the interview, he responded to questions about the incident with discussions of pain, adrenalin, profanity, conditions in the San Diego County Jail, the difference between ‘thoughts’ and ‘beliefs’ and the difference between ‘vision’ and ‘memory.’

“Penn had difficulty understanding questions if they contained more than one central issue. He also had difficulty following a question that suddenly shifted the discussion backward or forward in time.”

Answers Attempted

Silverman said he believed Penn sincerely attempted to answer the interviewers’ questions.

He said Penn talked about pain only when he was asked how much it hurt when Jacobs began hitting him.

He said Penn talked about adrenalin only when he was asked whether he was so excited during the fight that he might not have felt some of the blows.

And he said Penn talked about profanity only when he described how the officers swore at him.

“His statements were clear to me,” Silverman said. “They made sense to me.”

But Van de Kamp said that many of Penn’s answers conflicted with his earlier statements to police, or with facts learned later, Van de Kamp said.

While Penn said Riggs shot at him during the altercation, Van de Kamp said there was no evidence to support that belief. “Riggs’ gun was never fired,” the attorney general said.

Penn said in the interview that he shot Jacobs once, Van de Kamp said, but told police after his arrest that he had shot Jacobs twice. “The physical evidence establishes that Jacobs was shot once,” Van de Kamp said.

The attorney general also said the altercation was “mutual combat,” a description to which Silverman strongly objected.

“In the interview he testified he kicked both officers in one motion that took less than about a second,” Silverman said. “That’s the only force, the only striking that Penn did during the entire sequence.

“The rest are blocks. The officers were both side-by-side coming at him with the clubs. He thrust-kicked and side-kicked and doubled them over.”

Silverman also criticized the attorney general’s finding that some eyewitnesses recanted their earlier statements to police.

“The police did not accurately report what they said,” Silverman said. “These reports were instead tailored to the Police Department’s story. They recanted earlier statements because, when they got up on the witness stand, they denied making them in the first place.”

Perjury Allegations

As to the perjury allegations raised by Lester, Van de Kamp said there was not enough evidence to legally prove:

That Jacobs, who is white, lied on the stand when he testified that he did not use the word nigger and that he has no racial prejudice. Van de Kamp said they found only one witness who heard Jacobs use the word nigger before the Penn incident and only one who claimed to have heard Jacobs use the racial epithets boy and black ass. He said neither witness could be corroborated.

That Jacobs lied when he testified he first stopped Penn for making an illegal U-turn. The attorney general pointed out that there was medical testimony that Jacobs could genuinely believe Penn made the U-turn, even though that is not what happened.

“There is no evidence that Jacobs’ testimony was knowingly false,” Van de Kamp said.

That Police Sgt. James Duncan lied when he testified that Jacobs did not use the word nigger during a near-fight with a black officer in the squad room. Van de Kamp said Duncan and another officer told the attorney general’s investigators that they did not remember Jacobs using that word in the squad room. “If he (Duncan) genuinely had no memory of the incident, his testimony was not perjury,” the attorney general said.

That Officer Matt Weathersby was not believable when he testified that he never saw any racial bias by Jacobs.

Weathersby told the investigators that, although he has seen racial bias in the Police Department, it has not come from Jacobs. He also told them he “had no feeling of racial prejudice by Jacobs” when he was a partner with him in 1980.

“He has seen Jacobs periodically since that time, and his opinion of Jacobs has not changed,” the report said.