Academy Transcript Would Have ‘No Effect’ on Jury, Jacobs Says

San Diego Police Agent Donovan Jacobs said Saturday that jurors deliberating in the Sagon Penn police murder trial would not be swayed by a 1978 police academy interview in which he supported the use of aggression and obscenities in certain police situations.

“If they are able to read the transcript, I’m sure it would have no effect,” Jacobs said in a telephone interview. “It was one talk and that was it. There was no further consequences and no disciplinary action.

“This is just another attempt by the defense to throw smoke up in the air.”

Police officials also say the academy incident and interview are being exaggerated, and Jacobs’ academy classmates contacted by The Times said they have no recollection of training exercises in which he showed racial bias or aggressive behavior.

On Friday, the 4th District Court of Appeal decided in a 2-1 ruling to deny a motion by defense attorney Milton J. Silverman to stop jury deliberations and introduce the interview as new evidence.

An 11-page police transcript of the interview, which surfaced after the jury began deliberations, consists of a lengthy conversation between Jacobs and three training officers over their concern that Jacobs was likely to react in an “over-aggressive” manner and use epithets when confronted by minorities.

The Times has learned that Jacobs disagreed with his classmates over a training film that showed an officer calling a group of homosexuals “faggots.” While his fellow cadets criticized the use of such language, Jacobs considered it effective under certain situations, sources said.

The three instructors believed Jacobs’ behavior in front of his classmates during a police training exercise was so unusual and “serious” that a rare tape-recorded counseling session with him was in order.

Penn, a 24-year-old black man, is charged with one count of murder and three charges of attempted murder for fatally shooting Agent Thomas Riggs and seriously wounding Jacobs and Sarah Pina-Ruiz, a civilian observer who accompanied Riggs, on March 31, 1985. Jacobs, whose left arm is paralyzed from being shot once in the neck during the incident, had stopped Penn’s pickup when he spotted what he thought were members of a black gang riding in the bed.

Numerous defense witnesses have testified that after Penn refused to hand over his driver’s license, Jacobs provoked him by beating him and using racial slurs. The defense has portrayed Jacobs as “a Doberman pinscher” who has frequently engaged in racial violence during his seven-year career.

In its decision, the appellate court ruled that Superior Court Judge Ben W. Hamrick is in a better position to decide on the defense motion. But the majority of justices said they largely agreed with the harshly worded dissent of Justice Don R. Work.

“It is clearly in the interest of justice to make this evidence available to the defense before verdicts are returned,” Work said. “Penn . . . should be entitled to have this jury return a verdict based upon all the relevant evidence.”

However, police officials contend that the academy incident and the follow-up interview are being blown out of proportion.

“It didn’t seem to be much of anything to me,” said Police Chief Bill Kolender, who turned the transcript over to the district attorney’s office one day after receiving it on May 20. “I didn’t think it was relevant . . . (Jacobs) was not racist in it. He was not brutal at all . . . You’ll have to read it and make your own judgment.”

Kolender said he gave the transcript to Deputy Dist. Atty. Michael Carpenter because he did not want to be later accused of suppressing the information.

Ten of Jacobs’ academy classmates said in interviews conducted Friday and Saturday they don’t recall any training exercises in which Jacobs exhibited any racial bias or aggressive behavior.

In addition, sources close to the case said Capt. Thomas Hall and Capt. David Hall, two of Jacobs’ training officers, testified in a closed hearing before Hamrick that they are having difficulty recalling the interview.

The transcript was sealed by Hamrick until the jury reaches a verdict in the case. Jurors will begin their 19th day of deliberations Monday.

According to the court’s written decision, during the academy interview Jacobs endorsed the use of profanity when an officer is faced with a crowd that fails to obey police orders to disperse.

The decision stated that Jacobs said: “If you come across (with) some professional profanity and they (the crowd) start to move, I think that’s very effective.” He said that he supported using profanity, derogatory words or “whatever is necessary to get the job done,” according to the court.

Silverman said the transcript supports the defense characterization of Jacobs.

“No right-minded person reading this document is going to feel that Sagon Penn got a fair trial,” Silverman said.

Carpenter said Silverman is overreacting by suggesting the transcript is a critical piece of evidence.

“It isn’t all that relevant,” Carpenter said. “It was before he was even a police officer. It was at the academy, for crying out loud . . . It seems to me if Milt (Silverman) knew about it when Jacobs testified, Jacobs could explain it very, very easily.”

The prosecutor also questioned the accuracy of the statements contained in the transcript.

“It’s difficult to authenticate because nobody seems to remember that much about it being tape recorded or transcribed,” Carpenter said.

Jacobs, who was briefed about the transcript by Carpenter, said Saturday he could not recall the conversation being taped.

Silverman responded: “It is curious, indeed, that the prosecution is claiming that an interview with three sergeants and a cadet trainee that is on official San Diego Police letterhead is inaccurate. The Police Department isn’t in the business of being inaccurate.”

The transcript was discovered last September or October by Officer Jenny Castro, who did not give it to police until May 20. The district attorney’s office held the document for 12 days before turning it over to Hamrick.

According to the appellate court decision, the transcript shows that Jacobs exhibited conduct during two academy classes on objectivity and ethics that suggested he was likely to become over-aggressive and use obscenities when confronted with a tense situation.

But Jacobs’ classmates said they could not recall any such incidents.

Ingrid Wittenberg of Los Angeles said that if Jacobs had set himself apart from the rest of the academy ‘A’ section, she thought she would have remembered. Wittenberg, who became disillusioned with police work and left the department shortly after graduating from the academy, described Jacobs as “a very nice person who seemed to have a lot going for him.”

“Donovan may have been kind of a red hot,” Wittenberg said. “He had a lot of energy. He was kind of a go-getter.”

Officer Joel Webber said Jacobs stood out as the most physically fit cadet among the 87 graduates of the Police Department’s 90th academy. Webber said Jacobs became the first person in the history of the academy’s physical training test to score 499 points out of a possible 500.

Sgt. Harold Hiskes Jr., who sat next to Jacobs in the academy and supervised him for five months, testified during the trial that Jacobs was “a very low-key officer” who handled himself well in San Diego’s minority neighborhoods. Hiskes was not asked about his evaluation of Jacobs at the academy.

Hiskes, who is on vacation and could not be reached, called Carpenter on Thursday and told the prosecutor that he remembered “quite a bit” about the disputed training exercise involving Jacobs.

“The essence of what he said is that they’re trying to make a mountain of a molehill,” Carpenter said of the conversation. “(The transcript) doesn’t amount to a hill of beans.”

However, Jacobs’ training officers apparently felt Jacobs’ conduct during the exercise was disturbing enough to warrant a tape-recorded interview and a transcript. Officials currently assigned to the academy said they are not aware of any circumstances in which a tape recorder is used during police training.

When the training officers told Jacobs on Aug. 4, 1978, that his attitude differed from his classmates, Jacobs responded that he was only more forthright.

“The ideal situation is not to cuss, not to use derogatory remarks, but out there you get in the habit of using it and sometimes it works,” Jacobs said in the transcript, according to court decision.

On Saturday, Jacobs said certain situations arise during police work in which the use of derogatory remarks can be useful.

“I wouldn’t condone the use of a derogatory remark like faggot,” Jacobs said. “Somebody else may find it appropriate to use it sometime and it may be effective. Me, personally, I wouldn’t use it.

“As far as profanity, I could see where it would be appropriate. Talk to any street cop who is honest with you, and they’ll say it works and they use it.”