Second Penn Trial Must Avoid Mistakes of First

The California Supreme Court’s decision not to review defense motions in the Sagon Penn case has cleared the way for a retrial of the most controversial homicide case San Diego has seen in many years.

Penn, acquitted in his first trial of murder in the death of Police Agent Thomas Riggs and attempted murder in the shooting of Agent Donovan Jacobs, now will stand trial on charges including voluntary manslaughter in Riggs’ death, attempted voluntary manslaughter in the shooting of Jacobs, and attempted murder in the shooting of civilian Sara Pina-Ruiz. The court rejected requests by the defense to hold a full-scale review of its allegations of misconduct by the police and prosecutors.

The issues on which the Penn case turns are so emotionally laden that the second trial will almost inevitably be as divisive of the community as the first. Lined up on one side are those with the view that the “cop killer� should be in prison, not walking the streets. On the other are those who give great credence to testimony that Jacobs provoked Penn by beating him and shouting racial slurs--people who think Penn should not have to stand trial at all.

A more rational point of view is that, while this is a case that tests the ability of the system to find justice, it must be adjudicated as skillfully and as dispassionately as possible. If Jacobs did, in fact, initiate combat with Penn, then the question becomes: How far did Penn have the right to go in retaliation?

If the community is going to have faith in the system and respect for its ultimate verdict in the Penn case, the second trial must avoid some of the unfortunate sideshows of the first. For example, one thrust of Penn’s appeal to the Supreme Court dealt with the failure of the prosecution to make the court aware of the transcript from a 1978 Police Academy disciplinary session with Jacobs in which, among other things, he was chided for his willingness to use racial epithets in a tense situation. That transcript was discovered at the Police Academy as the first trial was drawing to a close.

Then there was the juror who gave birth while the jury was deliberating and, from her hospital bed, refused to affirm a guilty verdict the 11 other jurors thought they had unanimously reached. Later, the district attorney launched an investigation of that juror, in seeming disregard of an agreement with the trial judge not to.

It appears that the second trial will be presided over by a different judge, David Gill, one of the Superior Court bench’s most respected. It will be his challenge to run the trial in such a way that it attains credibility, not just with those intimately involved with the case, but with the entire community.