Judge Agrees to Switch of Lawyers in Penn Trial

After some last-minute maneuvering behind closed doors, a Superior Court judge Wednesday approved a request by Sagon Penn to fire his defense attorney and hire noted San Diego lawyer Milton Silverman to represent him on charges of killing one police officer and injuring another.

Judge Earl H. Maas Jr. said he was convinced that Penn’s request to suddenly switch defense attorneys on the second day of his trial was not “a jail-house motion” to delay court proceedings or inconvenience the 100 witnesses expected to testify. Maas said the new trial would begin Jan. 13.

On Tuesday, Maas said he was prepared to approve the change of attorneys after Penn’s mother, Peggy Barnes, wrote the judge that her son did not want attorney Robert Slatten to defend him and that he now preferred Silverman, one of San Diego’s most successful criminal defense lawyers.

On Wednesday, Maas said he had been advised by Donald Smith, presiding judge of the San Diego County Superior Court, that while on legal grounds he could approve the dismissal of Slatten, he did not hold the authority to appoint Silverman. Maas explained in court that because Penn had no money to pay for a lawyer, the defendant should be treated the same as other indigent people charged with felonies and referred to the county Office of Defender Services for an approved public defense attorney.

To get around that hurdle, Maas held a private meeting in his chambers with Penn and the two defense attorneys. The judge said he contacted Mel Nitz, head of the Office of Defender Services, who agreed to assign the case to Silverman because Nitz’s office has a heavy caseload. Silverman will be paid the same $60-per-hour wage as court-appointed public defense attorneys. Many attorneys with the reputation and experience of Silverman receive a minimum $25,000 for major homicide cases.

Community leaders raised about $10,000 in contributions to pay Slatten, Penn’s original defense attorney. Before he left the courtroom Wednesday, Slatten shook hands with the murder defendant and his father, Thomas Penn, and wished them luck.

“We had a good, bold, viable defense,” Slatten told reporters. “I’m really disappointed I won’t get the opportunity to present it.”

Slatten said it was inappropriate for him to comment on the reasons for the change of attorneys.

Maas referred to “a conflict of interest” when he asked Sagon Penn in court if he had decided to switch attorneys. Penn, dressed in a light gray polyester suit and white Puma tennis shoes, responded, “Yes, sir.”

Deputy Dist. Atty. Michael Carpenter opposed the change of defense lawyers because he said the move was untimely after both sides had screened 13 potential jurors.

“Mr. Penn appears to be a bright, articulate person who can express himself,” Carpenter said. “If there was a problem, he could have made it known to the court.”

Silverman said he received a visit six weeks ago from Geraldine Moses of the San Diego Legal Aid Society who said she had visited Sagon Penn in his jail cell and that Penn wanted Silverman to represent him.

“I can assure you that it was and is Sagon Penn’s fervent desire that I represent him,” Silverman said.

Silverman said that, based on what he had read in newspaper articles, he would probably pursue the argument that Penn acted in self-defense when he allegedly shot and killed Officer Thomas E. Riggs, 27, and injured Officer Donovan Jacobs, 29, and Sara Pina-Ruiz, 33, who was accompanying Riggs in the ride-along program, on March 31 in Southeast San Diego.

At the conclusion of Wednesday’s court hearing, Maas said he had some questions about whether Penn is mentally fit to stand trial and announced that two forensic psychiatrists will examine Penn Tuesday. Maas set a Nov. 14 court hearing to determine Penn’s mental competency.