Foreman of Jury Was Holdout Against Acquittal of Penn

Two jurors in the Sagon Penn police murder trial said Friday that Penn would have been acquitted of all charges had it not been for jury foreman Douglas Bernd, who argued stubbornly that the young black man did not act in self-defense when he killed one police officer and wounded another.

Vernell Hardy, 37, and Kimberly McGee, 29, said that jurors grew frustrated trying to change Bernd’s mind during the last two weeks of deliberations. They said they felt confident they could persuade Lynn Decker, another holdout juror, of Penn’s innocence if Bernd had budged.

“If we beat on (Decker) a while, he would have come around,” Hardy said in an interview with The Times Friday. “You could beat on Bernd until hell freezes over and it wouldn’t do any good. He was just going to stick with it.”

She added, “Doug and Decker felt like as long as you’re a police officer you’re as close to God as you’re going to get. It doesn’t matter if it was Jacobs or Joe Blow. You were an officer and that’s where it stopped.”

In an interview at his Ramona home Friday afternoon, Bernd, 39, said San Diego Police Agent Donovan Jacobs was justified in using force and abusive language to subdue Penn. In any case, Jacobs’ actions did not justify the shooting death of Agent Thomas Riggs and the wounding of Jacobs and civilian observer Sarah Pina-Ruiz, Bernd said.

“When you’re fighting for your life, you’re going to say and do a lot of things,” Bernd said. “And when you’re fighting with a guy who’s roughly the same size as you and has shown the ability to defend himself virtually with his hands, I might tend to be a little over-aggressive myself.

“I just know if I were in a similar situation, it’s quite possible I could have handled it the same way Donovan Jacobs handled it.”

He added, “I was the lone holdout and I’ll always be the lone holdout.”

Penn was acquitted Thursday of murder and attempted murder in the March 31, 1985 slaying of Riggs and the shooting of Jacobs. The jury found Penn innocent of stealing Riggs’ weapon and Jacobs’ patrol car.

Jurors were deadlocked on four other charges. They voted 11-1 to acquit Penn on the charge of attempted murder in the Pina-Ruiz shooting; 10-2 for acquittal on a manslaughter charge in Riggs’ death; 10-2 for acquittal of attempted voluntary manslaughter against Jacobs; and 8-4 for acquittal of assault with a deadly weapon for running over Jacobs with a patrol car.

On Friday Superior Court Judge Richard D. Huffman set Aug. 25 to try Penn for a second time on the undecided charges.

Although the district attorney’s office has not yet decided whether to retry the case, prosecutor Michael Carpenter said he has recommended that Penn face a second trial.

The interviews Friday with Bernd, Hardy and McGee provide the first clear account of the deep divisions between jurors as they deliberated for 27 days, believed to be a San Diego County record.

Both McGee and Hardy, the only blacks on the jury, said they felt bad about their failure to decide all the charges.

“After all that time holding up the whole community as long a time as we did and not to come in there with everything, that was terrible,” Hardy said.

Bernd said he felt rushed to deliver verdicts near the end of lengthy deliberations when Superior Court Judge Ben W. Hamrick asked him how much longer the jury would need.

Bernd wore a badge and uniform when he issued parking violation citations for the city in 1973. He is a member of the Old Mission Beach Athletic Club, a beach fraternity with close Police Department ties and traditionally strong representation from officers.

Bernd, who delivers mail in Mission Beach, said he believed Penn was guilty of Riggs’ murder, but the other jurors convinced him that the conditions the law requires for first- or second-degree murder did not exist in this case.

But Bernd said he could not bring himself to vote for acquittal in the shooting of Pina-Ruiz.

“In the heat of passion, or whatever you call it, the arousal of fear has to be justified to a certain extent,” Bernd said. “Had she been out of the car, yelling at him, or doing something other than sitting in the car as an observer, it would have been a different story. To me, in that situation, she was merely an innocent bystander.

“He may have been fearful of her, but nevertheless we must bear some responsibility for the actions we take, whether they’re taken in fear or not.”

Hardy and McGee, interviewed together in Hardy’s living room in Southeast San Diego, said the jury initially voted 12-0 to acquit Penn of the Pina-Ruiz shooting. But within the last couple of weeks Bernd changed his mind.

All of the jurors except Bernd agreed that Penn was still acting in a heat of passion when he shot Pina-Ruiz in the front seat of a police car 2.7 seconds after he shot Riggs, Hardy and McGee said.

“Bernd, for some reason, felt the heat of passion ought to cool down in 2.7 seconds,” said McGee, a post office worker. “His whole thing was it was between Penn and the two officers. He was stuck on the idea (Pina-Ruiz) was a civilian, which at the time the incident went down I’m sure Penn didn’t know she was a civilian.”

McGee, who is engaged to marry a San Diego Police officer in August, said her fiance supported her decisions.

“He got no friction at work,” McGee said. “He said, ‘That is the way you feel. You were there. You saw the evidence.’ ”

The jury initially convicted Penn of assault with a deadly weapon for driving a police vehicle over Jacobs. But the verdict was set aside when Hardy, who gave birth to a baby early in deliberations, told Superior Court Judge Ben W. Hamrick at the hospital that she had second thoughts.

“It was a real shock when they came to the hospital,” said Hardy, a phone company employee. “I thought ‘wait a minute,’ because we were under the understanding that we were going to turn all of the verdicts in at once . . . . That didn’t sit right. After we voted, I wasn’t real sound on it. I thought it was no big deal because we always had a chance to rehash it.”

The jury reconsidered the verdict and, after receiving clearer instructions from Hamrick, voted 8-4 to acquit Penn on the assault charge.

Jacobs provoked Penn, according to numerous witnesses, by beating him repeatedly and telling him, “You think you’re bad, nigger . . . I’m going to beat your black ass.”

While most jurors were outraged by Jacobs’ conduct, Bernd felt strongly that Penn had no right to respond with gunfire to the heavy force and racial slurs used by Jacobs. According to Hardy, Bernd told his fellow jurors, “You can call me a honky and I’m not going to turn around and hurt you.”

Bernd, interviewed Friday afternoon as he hustled around his Ramona spread catching up on chores missed during his weeks on the jury, said he identified with Jacobs, whom defense attorney Milton J. Silverman tried to portray as a bigoted “cowboy.”

“I don’t think Donovan Jacobs was prejudiced in any way,” Bernd said as he scooped horse manure into a wheelbarrow. “He may be. He may not be. But from the evidence, from the character witnesses brought before us . . . you can’t hide prejudice for that many years. It just can’t be done. Somewhere along the line you’re going to slip.”

Bernd said he didn’t believe Silverman’s argument that Jacobs was a bad cop who flouted authority.

“I just didn’t see it that way,” he said. “I’m kind of a rebel myself. I know what authority is, and it has to be followed. But there’s a point where sometimes if you don’t make such a grave situation out of something it tends to sink in there a little better.”

Hardy said she felt Jacobs had suffered enough physically and mentally for his behavior. But she added, “I would like to see him admit it, you know. I would like to see him say, ‘I know I was wrong.’ ”

Jacobs repeatedly denied ever using a racial slur and gave conflicting accounts of the events that led to the shootings. At least three jurors have said they did not believe Jacobs’ testimony--Hardy, McGee and Sally Naley. Decker declined to comment on the deliberations.

Near the start of deliberations, Hardy and McGee said they told jurors that San Diego Police officers are not above getting into violent conflict with black residents, especially in Southeast San Diego. Naley said in an interview Thursday that their comments persuaded many jurors.

But Bernd said he didn’t believe the two black jurors’ comments about the state of the Police Department’s relations with the Southeast San Diego community.

“This is the 20th Century,” he said. “This is not Macon, Ga., in 1958. We’ve got a black city manager. We’ve got blacks on the city council. I’m sure there’s a small percentage of police officers who think it’s fun to go around and knock on people, whether black or white they probably don’t give a damn. For the most part, I don’t think police go down there (to Southeast San Diego) and knock heads. I think they do one helluva job, and my heart goes out to them.

“I work at the beach,” Bernd said. “They don’t have anything in Southeast San Diego that I don’t have at the beach. You name it, we’ve got it.”

Bernd said the jury tried to ignore the races of the defendant and the police officers he shot.

“I feel all of us tried to not look at the defendant as black,” Bernd said. “We looked at him as the defendant. And we tried not to look at the police officers as white. We tried to look at them as police officers. We didn’t make a racial issue out of it in the deliberations.”

Bernd said the attorney’s varying styles had no effect on him.

“I would honestly say the fact that he was a flamboyant attorney of the Melvin Belli type in Silverman as opposed to the calm, methodical, sure Carpenter . . . neither attorney in my eyes had the upper hand.”

While the two black jurors said they based their decision on the evidence, they believed that Silverman was far more effective than Carpenter.

“I think Silverman was outstanding . . . just dynamite,” Hardy said. “It seemed he had a lot of confidence, he believed in his defendant and he was going to do whatever was necessary. Carpenter, to me, was a bit laid back. I felt he should have been . . . much more aggressive.

“The way Silverman brought out the evidence it was like how could you not believe it.”

Both Hardy and McGee said they had a difficult time believing Carpenter’s closing argument that Penn shot the officers because he wanted to avoid the shame of going to jail.

“To me that was weak,” Hardy said. “You’re going to shoot somebody because you don’t want to go to jail when chances are you would be released in a short period of time?”

Bernd said he believed strongly that Penn should be tried again on the undecided charges. But he said the chance of a guilty verdict would be enhanced if the laws were less ambiguous or if the jury was given clearer instructions.

“Some of this stuff is very confusing, some of the laws are very confusing in the way they’re written,” he said.

In an interview with KSDO radio Friday, Bernd urged his fellow San Diegans to work for clearer laws that could be applied by jurors who lack the expertise of lawyers.

“I’d like to tell everybody to get off their butts and get ahold of their legislators and let’s make these laws clearer so that 12 ordinary people from all walks of life can simply understand them,” Bernd said. “That’s the biggest problem.”

But Hardy and McGee said they were not confused and blamed Bernd for relying on his gut feeling and not criminal law in holding out against acquitting Penn.

Both women said they did not think a new jury would convict Penn on the remaining undecided charges and felt the district attorney’s office should drop the case.