Mysterious Penn Trial Document Spurs Concern Among Police

Upset with the Police Department’s handling of private personnel records, San Diego police officers are challenging fellow Officer Jenny Castro’s account of how she inadvertently “came across” an 8-year-old transcript that has become the center of controversy in the Sagon Penn murder trial.

“It’s hard for me to picture Jenny finding that document . . . and sort of stuffing it away and then forgetting about it for seven months,” a lieutenant said. “That doesn’t seem to me to be in her character.”

The transcript, which surfaced after the jury began deliberations, consists of a lengthy, taped conversation in 1978 between Agent Donovan Jacobs and three academy instructors. The session was prompted by a training exercise in which Jacobs said he supported using epithets and aggression when confronted by minorities.

Jacobs’ role in the incident involving Penn is central to the murder trial. Penn, 24, who is black, is accused of murder in the March 31, 1985, shooting death of Agent Thomas Riggs and attempted murder in the shootings of Jacobs and Sarah Pina-Ruiz, a civilian ride-along observer.

Defense attorney Milton J. Silverman contends the 11-page transcript is damaging to the prosecution because it supports his portrayal of Jacobs as a “Doberman pinscher” who provoked Penn by beating him and using racial slurs.

The jury is scheduled to begin its sixth week of deliberations on Monday. The 4th District Court of Appeal and Superior Court Judge Ben W. Hamrick decided against halting deliberations to introduce the transcript as new evidence. But they acknowledged the likelihood that, if Penn is convicted, a motion for a new trial would be granted because jurors were not told about the transcript and its contents.

Assistant Police Chief Bob Burgreen said an internal police investigation has uncovered no evidence contradicting Castro’s unsworn statement that she discovered the transcript while cleaning out a Police Academy office last fall. She did not turn it over to police until May 20, nearly three weeks after jurors began deliberations in the four-month-long police murder trial.

Burgreen refused to say whether the department will take disciplinary action against Castro. Reached at her home and at the police station, Castro said she was not interested in discussing the matter.

The mysterious discovery of the document raises a new round of questions concerning police tampering with department personnel records. Several cases have occurred recently in which police memos were removed from employee files.

In April, police launched an internal probe to determine how a sergeant’s memo concerning Officer Stephen Williamson’s emotional problems was removed from his file and leaked to the media. The incident is under investigation.

In 1983, a Municipal Court judge ordered the Police Department to turn over the personnel records of Officer Richard D. Draper, who was accused of falsely arresting a San Diego attorney. Missing from Draper’s files were numerous complaints of excessive force that citizens had filed against the officer. The attorney is suing the Police Department for conspiracy to hide Draper’s background.

The handling of the Jacobs transcript has led dozens of officers to worry about whether their counseling sessions at the academy were secretly taped. Jacobs said he could not recall the session being recorded.

“I’m greatly discouraged by the pattern that we’re seeing in cases where documents somehow surfaced at some later date,” said Sgt. Ty Reid, director of the San Diego Police Officers Assn.

According to Police Department policy, supervisors are under strict orders to place documents such as the Jacobs transcript in confidential files.

“We don’t lay anything around that talks about another person, particularly if it is in less than positive terminology,” said Capt. Robert Slaughter, head of the police personnel division. “We try to be careful in those areas that we don’t leave memorandums sitting around that we don’t want other people reading.”

Burgreen said he was shocked to learn that such documents were kept for several years at the academy. Once Jacobs passed his one-year probation, the internal memo should have been destroyed, Burgreen said.

“Apparently our policies have not been that solid in that regard in the past,” Burgreen said. “We will consult with our legal people and certainly comply with any laws. We want to set up a process where we are consistent and reasonable and legal.”

According to police, the Jacobs document apparently sat in an old in-basket for seven years until Castro came across it last September or October.

But a half-dozen police supervisors said they cannot imagine a scenario in which a confidential document could remain in an in-basket for seven years without being discovered earlier.

“I’m at a loss for words to understand how this could have happened, particularly with Penn, of all cases,” Reid said.

Castro, 37, a seven-year member of the department, has been unwilling to discuss the circumstances surrounding the discovery of the document, even with close friends, police sources said.

A Police Officers Assn. official described Castro, who is active in the Latino Police Officers Assn., as “a conscientious worker.” He said he was surprised Castro did not take the document to her supervisor when she first discovered it last fall. The POA official said any police officer should have recognized its importance to the Penn trial.

Burgreen acknowledged that “it would have been a lot better had she immediately turned it over.”

He added, “Any other statement about how we feel or what would be done is a personnel matter. We can’t discuss what, if anything, we intend to do about the matter.”

Burgreen praised Castro for having the courage to hand over the document to police officials.

“I wonder how many people would be so honest to bring forward a document that is eight years old, hidden in a desk, that no one knows about, that may hurt a police officer and help a person being prosecuted for killing a police officer.

“I hesitate to be critical that it took her eight months to do it. It took a lot of guts for her to do that. It took a person with a very special sense of justice.”

Castro said she “came across” the transcript in September or October while she was cleaning out an unused office at the Police Academy, according to a court declaration filed by Deputy Dist. Atty. Michael Carpenter. The transcript, dated Aug. 4, 1978, was in an old in-basket along with numerous other unrelated papers, Castro said.

“We don’t have any reason to believe that the statement from her is anything but true,” said Burgreen, who late last week received an investigative report surrounding the discovery of the Jacobs’ document.

However, officials at the academy said they were not aware of an office that remained vacant for several years.

Jim Palmer, associate dean in charge of the academy, said the police training facility at Miramar College has lacked the necessary space to store paper work and personnel files.

“That is just beyond comprehension,” Palmer said of the document openly lying around in an in-basket for several years. “If that did happen, all I can say is we’re sure as hell inefficient. And I think we’re not.”

One lieutenant who has taught at the academy speculated that the only way Castro could have located such a document is if it had fallen in a one-inch crack between a file cabinet and a wall.

“Otherwise, the odds (of finding it in an in-basket) are more ludicrous than astronomical,” the lieutenant said.

Once she discovered the 11-page transcript, Castro said, she placed it in her desk with the intention of reading it at a later date.

“I kept this transcript because I wondered whether it was standard operating procedure to record such sessions and did Jacobs know it was being recorded,” Castro said in her declaration.

Lt. Richard Bennett, one of the three training officers who interviewed Jacobs, said academy instructors occasionally recorded counseling sessions. He said the recorder was used at times without a cadet’s knowledge.

“It was not a common practice, but it did happen in those cases where we felt it was sensitive . . .,” Bennett said in a telephone interview. “At times, we did it for our own protection to eliminate any charges of misconduct.”

Jacobs has told The Times that he cannot recall a tape recorder being used during the Aug. 4, 1978, counseling session. Sources said that none of the three training officers--Bennett, Lt. David Hall and Lt. Tom Hall--could recall using a tape recorder during the interview.

Burgreen said he was startled to learn the interview was recorded and transcribed.

Reid said he was “outraged” when informed that informal counseling sessions were sometimes secretly recorded at the academy.

“That is absurd,” said Reid, who plans to raise the issue with the POA board of directors and legal staff. “I can’t imagine anyone stupid enough to do that . . . I think that is totally irresponsible.”

According to one police lieutenant, at least two dozen officers are angry that Jacobs’ counseling session was recorded and a transcript was later made available to Penn’s defense.

“Two officers in particular are very scared,” said the lieutenant, who asked not to be named. “They were involved in counseling sessions several years ago where they were told to come in and informally talk in the open with their instructors.

“They’re wondering that if things can come back and bite Donovan Jacobs after eight years, what can come back and bite them?”

Lt. Jerry Sanders, head of the Police Academy, said his training officers do not use tape recorders for any purpose.

When Castro initially came across the Jacobs transcript, she decided to keep it because she thought it was “interesting,” Burgreen explained. All of the other papers she found while cleaning out the office were thrown away.

“She didn’t read it all,” Burgreen said. “She didn’t have any reason to think anything of it other than it was an old document and she put it in her desk.”

Castro rediscovered the document while cleaning her desk on April 29 or 30. On those two dates, the prosecution in the Penn case called 11 witnesses--most of them police officers--to rebut defense testimony that Jacobs was a racist who frequently used excessive force against black suspects.

This time, Castro read the transcript and decided it might be important to give to Police Chief Bill Kolender.

“I put the transcript in my car in order to give it to Chief Kolender because Donovan Jacobs was mentioned and because of his connection to the Sagon Penn case,” Castro said in her declaration.

The transcript stayed in Castro’s car for three weeks until she ran into Burgreen at a police breakfast for minority officers on May 20.

Burgreen initially told reporters that Castro rediscovered the transcript on May 19 and gave it to him the following day.

In the appellate court decision, Justice Don R. Work wrote in his dissent that, despite extensive media publicity in the Penn case about Jacobs’ police background and reputation, the transcript “languished quiescent in (Castro’s) desk, unread and forgotten.”

Work noted that Castro “inexplicably” failed to turn over the document for three weeks after she found it a second time.

“She didn’t feel it was a pressing matter,” Burgreen explained. “She didn’t feel she had a red-hot piece of information. She felt it was something the chief of police ought to see, but not something she ought to rush down and give to him.”

Castro’s failure to turn over the transcript anytime before the end of the four-month trial cost the defense dearly, Silverman said.

“I would have had a tremendous amount of leads and other things I could have done with respect to the document,” Silverman said. “It would have been a launching pad for cross-examination of all those character witnesses (who testified on Jacobs’ behalf).

“It goes to the heart of the district attorney’s statement that Donovan Jacobs is a hero, the alleged character assassination of Donovan Jacobs didn’t work and the witnesses who testified for the defense were mentally deranged and dope addicts.”

Castro’s account is contained in a two-page declaration prepared three days after she turned over the document.

Silverman said he considers it “highly significant” that the district attorney’s office did not ask Castro to sign the declaration under the penalty of perjury.

“If what Castro’s declaration says was true, I’d expect it to be under oath,” Silverman said. “Nobody has said under oath what happened with respect to this document. Not the district attorney, not the police department, not Jenny Castro. Given their obligation to disclose this information to the defense, that’s highly irregular.”

Carpenter said he asked Castro to prepare the declaration herself, but the officer said she had neither the time nor the knowledge to write a statement. Castro’s declaration was not sworn under oath, Carpenter said, because he drafted the statement for her based on a May 23 interview.